It goes without saying that workplace safety often hinges on the maintenance of equipment. That is certainly true in the oil and gas industry.

One need only look at one of the worst oil and gas accidents in history, the 2010 Deepwater Horizon tragedy which apparently involved numerous equipment maintenance and failure issues. The explosion that occurred there killed 11 people and seriously injured 17 others. In addition to the injuries and fatalities there was also significant environmental damage along the Gulf Coast.

Unfortunately, this is not an isolated incident.

According to the Bureau of Labor Statistics, about 600 oil field and rig workers were fatally injured on the job between 2002 and 2007–many due to various mechanical problems. Perhaps even more alarming is that the statistics also show that these jobs are getting more dangerous all the time. From 2002 to 2006 the number of deaths per year increased by approximately 70%, from 72 deaths in 2002 to 125 in 2006. These workplaces are extremely dangerous. According to estimates, the fatality rate among oil and gas workers is nearly eight times that for all workers in the United States.

Efforts at improving workplace safety must focus on equipment maintenance. Proper maintenance keeps the oil rigs and other equipment working as they should, without the chance of one-time blowouts or malfunctions that hurt those working in the vicinity. When maintenance is done improperly, or not at all, oil and gas workers are put in serious danger.

Unfortunately, productivity often determines when and how maintenance is performed. Irregular or nonexistent maintenance saves the oil and gas companies money. Productivity decreases when the equipment is shut down for maintenance. The profit-motive therefore makes it more likely that the industry will not be proactive in its safety measures. All too often this means that problems are only addressed after a worker has been seriously injured or killed. Even then, the problems may persist.

Following these tragedies, those involved may be able to seek compensation for their losses. There are many complexities and challenges with these cases beyond the obvious technical challenges of figuring out how and why an accident occurred. In New Mexico, the Worker‘s Compensation Act places strict limits on claims by employees (and their estates) that are injured or killed on the job.

The New Mexico Worker‘s Compensation Act provides an exclusive remedy for employees injured or killed on the job. In short, the employee is prevented from suing the employer for personal injury or wrongful death in all but the most outrageous situations. In short, the employer must more or less send the employee to certain death before the exclusive remedy protection is waived by the employer.

In these types of cases, where the injuries (if the worker survives at all) are typically very serious. The Worker‘s Compensation benefits do not come close to fully compensating a worker for very serious personal injuries or wrongful death. As such, the worker must identify a third party who is responsible or shares responsibility for the accident. In these types of cases, there is often no shortage of parties who share the blame due to the large number of contractors, subcontractors, equipment providers, manufacturers and the like.

If you or a loved one has been injured or killed in an oil or gas accident, it is important to seek the guidance of an experienced personal injury attorney to ensure that your rights are protected. There are strict deadlines associated with these cases so it is important not to delay. Missing a deadline will bar your claim completely.

DISCLAIMER

Related Reading:
Oil and Gas Facilities Pose Significant Risks to the Public When Not Properly Maintained
The Oil and Gas Industry Can Be a Dangerous Place for Workers
Employers Protected from Liability for Gross Negligence Toward Employee Safety

Collins & Collins, P.C.
Albuquerque Attorneys

When thinking about oil and gas industry accidents most think about rig explosions and oil leaks. Injury to workers and environmental damage are assumed to be the most obvious consequence of these accidents. However, certain oil and gas industry issues have the potential to affect many different community members.

For example, oil and gas storage sites are located in our communities across the country, with some sites located as close as 150 to 300 feet from residences, churches, schools and businesses. It is easy to overlook the storage facilities, because they are often inconspicuous. At some sites there are no warning signs, fencing, locked gates or other physical barriers to indicate the activity there or help prevent accidents.

Failure to properly maintain these storage facilities can lead to serious problems. These facilities pose a significant danger to the public, particularly to our children and young adults. A recent study released by the U.S. Chemical Safety Board identified 26 incidents since 1983 involving accidents at these oil and gas facilities. Those over two dozen incidents killed 44 members of the public and injured may others.

In some ways, the dangers posed by these locations affect rural community members, who are far more likely to live, work, and interact near these facilities. It is not uncommon in rural areas for children and young adults to socialize at oil sites unaware of the explosive hazards posed by storage tanks containing flammable hydrocarbons and crude oil and natural gas condensate.

It only takes a single incident to cause serious problems. A lighter, cigarette, or even static near one of these tanks may trigger an explosion inside the tank. Such an internal explosion can launch the tank into the air, killing or injuring people nearby in the blink of an eye.

These accidents are not uncommon.

Perhaps most common are gas pipeline explosions which when they occur, they can be incredibly devastating to the public. Perhaps none were more tragic than the year 2000 pipeline explosion in New Mexico that killed 12 family members who were camping along the Pecos River several hundred yards from the underground explosion.

The case resulted in a record wrongful death settlement for the estates of the deceased. Remarkably, the accident and the horrific scene which greeted emergency responders was so bad that several of the emergency responders suffered severe PTSD and other emotional damages for which they later also filed suit.

Those maintaining these oil and gas sites must take the known safety dangers into account. In the New Mexico case, the pipeline was had not been cleaned or inspected in 5 decades. As a result, the pipeline and the breach point were severely corroded which led to the explosion.

The good news is that with the appropriate safety and security measures these accidents are preventable. In many cases, basic security measures, such as full fencing, locked gates, and locks on tank hatches are often all it takes to avoid these types of accidents entirely. Warning signs and safely designed storage tanks also go a long way to keep unsuspecting community members away from dangerous areas. These measures will be effective in preventing many pipeline accidents.

In the New Mexico case, which involved a 30 inch interstate pipeline, these measures clearly would be insufficient since the campers were nowhere near the pipeline. In all cases, proper inspection, maintenance, and cleaning must be maintained. Common sense might suggest this goes without saying. Yet, it is remarkably common that pipelines are not properly maintained. And with the continuing growth of the natural gas market and the consequent boom in pipeline construction, only time will tell whether all these pipelines were laid properly to begin with.

The bottom line is that oil and gas storage, transmission and pipeline facilities pose a clear risk to community members. It is incumbent upon owners and operators to minimize that risk. Failure to do so can prove devastating to the public and ultimately quite costly to the owner/operators of the facilities.

DISCLAIMER

Related Reading:
The Oil and Gas Industry Can Be a Dangerous Place for Workers
Dangerous Recreational Activities and Assumption of Risk
Punitive Damages in New Mexico: What is Reasonable?

Collins & Collins, P.C.
Albuquerque Attorneys

The oil and gas industry has proven time and again that it is among the most dangerous industries for workers. Those that work in the oil and gas industry are subjected to some of the most hazardous industrial workplace condition in the United States.

Yet in 2006 more than a half million workers were employed in the oil and gas industry alone, and the gas extraction industry employed another 400,000 workers on offshore drilling, land drilling and workover rigs.

Many of the oil and gas industry injuries that occur happen as a result of drilling accidents, improper construction and maintenance, pipeline transportation accidents, storage problems and salt dome accidents.

Studies have shown that when an oil and gas worker is injured the injuries are generally more severe than those sustained by workers in other industries, and in many instances the recovery from such severe injuries takes twice as long.

Some of the most common causes for oil and gas accidents include:

  1. Delays in equipment maintenance and repair.
  2. Failure to provide proper training to new employees and ongoing training for existing employees.
  3. Failure to properly implement and update safety procedures.
  4. Failure to properly communicate.
  5. Careless and reckless behavior at and around the work-site.
  6. An what may be surprising to many, highway and traffic accidents which are leading cause of death in the industry.

As the oil and gas industry has experienced significant growth over the last several years, likewise there has been an increase in the rate of fatal occupational injuries for these workers. The statistics on oil and gas fatalities are alarming. From 2003 to 2008, 648 workers have been fatally injured nationwide. This is a fatality rate eight times higher than the average for all other occupations. Studies conducted by the Department of Labor have found that the most common cause of death for an oil and gas worker, other than traffic accidents, is caused by what they have classified as “struck by” accidents. Death caused by a “struck by” occurs when a worker is by struck by equipment or other heavy object that is sent flying when something goes wrong with a well where gas and oil comes up at high pressure.

In 2008, the National Occupational Research Agenda (NORA), a government and industry safety organization, sought to find reasons behind the high death rate and how it could be reduced. During their research NORA uncovered a variety of conditions that have been described as creating a recipe for danger. These conditions are common in the oil and gas industry and include the fact that drilling operations often run 24 hours a day 7 days a week and in all types of weather conditions. The workers frequently work 12 hours a day often for more than a week or two at a time without a day off.

Even getting to the work-site is dangerous because of the remote location of many of the rigs. This means that workers are often traveling on dirt and gravel roads that run for miles out to the rigs. Fatal accidents on the way to and from the work-site contribute to the growing number of fatalities among these workers.

When an injury or death occurs compensation for the worker and his or her family is often a complicated issue. For instance, in New Mexico, the Worker Compensation Act exclusivity provisions protects employers against personal injury claims. However, there may be other sources of recovery for personal injuries such as third party liability. This could occur in a number of manners. First an most obvious, there may be recovery from other negligent drivers. This issue alone could bring up a host of possible insurance coverage such as the worker and/or the employer‘s underinsured motorist coverage.

If you or a loved one has been harmed in an oil and gas industry related accident, it is important to consult with an experienced attorney to insure that your rights are protected. These types of accidents have many issues that are not necessarily present in other accidents which must be addressed in order to determine possible avenues for recovery.

DISCLAIMER

Related Reading:
When An Attorney Is (and Isn‘t) Necessary in a Work-Related Injury Claim
Third Party Liability for Work Related Injuries
Employers Protected from Liability for Gross Negligence Toward Employee Safety

Collins & Collins, P.C.
Albuquerque Attorneys

Spoliation of evidence, or more commonly understood destruction of evidence, can result in the dismissal of a homeowner‘s claims against a negligent builder, subcontractor, architect, engineer or other party responsible for a new home‘s defects. The obvious question is how would spoliation of evidence occur?

The answer is that it could occur quite innocently. Whenever a homeowner takes it upon him or herself to repair problems, there is the possibility that evidence will be destroyed. Perhaps more accurately, it is possible that the negligent defendant will assert a defense of spoliation of evidence purely as a tactical matter. In fact, this defense is preached by the construction defense bar knowing full well that many homeowners will take action to repair or fix their most valuable asset rather than standing idle waiting for the contractor the fix the problem.

Many times, homeowners meet with delay after delay in addressing their problems with contractors or builders. Their grievances are routinely ignored. And why not, if the homeowner finally and predictably takes action on the problem, the contractor now has one more line of defense against a construction defect lawsuit.

To avoid the possibility or suggestion of spoliation of evidence claims, the homeowner should contact the builder or contractor immediately in writing with a detailed description of each and every defect. The injured homeowner must give the defendant notice of any intended repairs. Finally, the plaintiff must give the contractor, builder or other defendant the opportunity to inspect the defects themselves prior to any such repairs by the homeowner.

Once notice of repairs and opportunity to inspect is provided, the homeowner should document both the original defects and the repairs very carefully. As one might expect, the contractor or builder is likely to have a very different view of what happened partly due to their own self-interested documentation of the problems and the fixes. It is safe to say that these problems and repairs can never be over documented, but they most certainly can be under documented.

Once again, failure to provide notice and opportunity and to carefully document the defects and the subsequent repairs will undoubtedly lead to the spoliation of evidence defense. Careful attention and documentation should cut off this defense. Failure to provide notice and opportunity to inspect can and does lead to a dismissal of the claims.

DISCLAIMER

It is a common story – you purchase and move in to your dream home only to notice cracks in retaining walls, interior walls, stucco and even flooring after a few months. Some of these cracks are innocuous hairline cracks that happen in nearly every home as the result of natural settling and seasonal changes. Others are much more ominous and can signify serious construction defects, structural defects, soils issues, architectural and design flaws.

How does a homeowner tell when it is time to be concerned? Well, for one thing, you should look at the size of the cracks to see whether they are a hair‘s width or larger. If they are as wide as a quarter or wider, that could be something to worry about. Check to see whether there is heaving – are both sides of the crack level with each other or is one side noticeably higher? If the sides of the crack are not aligned, that could indicate a structural problem.

If there cracks in the stucco, there are a number visible signs that would raise concerns. The size of the crack and crumbling in the stucco are perhaps the most obvious signs of stucco defects. However, other indications of potentially serious problems are discoloration and dampness in the stucco. Numerous cracks, water infiltration, mold or structural weakness should all be addressed immediately to avoid worsening damage to the home.

You should contact your builder or builder‘s warranty representative immediately when you notice cracks or other issues with your home. Cracks and other damage should be carefully documented. For instance, you should photograph them and even note the size of the crack. Consider marking the crack to indicate where it stops and starts along with the date. If the crack grows quickly, this could indicate a serious problem. The same routine holds true for documenting problems other than cracks as well.

You should not attempt to repair these issues on your own. You should notify your contractor or builder. If your builder does not respond, legal help may be needed to obtain the necessary repairs and to assist you in obtaining compensation for any other damages you incur.

DISCLAIMER

New homeowners are often provided with a written warranty on their home. These warranties are usually part of the home purchase contract and differ from builder to builder.

New home warranties often provide for a relatively short warrantyperiod of one or two years. However, construction defects are often not apparent until well after the expiration of the warranty period. When homeowners complain about problem with their homes after this period expires, builders often turn a cold shoulder, citing the warranty language. Many homeowners accept this response under the misperception that their only recourse against their builder is lost after the warranty period expires.

There may be some builders that innocently claim protection under the warranty. Of course, this would be a very inexperienced or poorly informed builder with whom it was ill-advised for the homeowner to do business in the first place. More often, the builder is fully aware that the warranty does not preclude claims for serious construction defects. Instead, the builder is simply attempting to escape liability for the defects and responsibility for the costs of repair.

These limited new home warranties do not provide a homeowner‘s only recourse for construction defects. First, they may or may not cover all structural components of a home. Some warranties are limited to such issues as appliances, heating and air, minor mechanical issues and the like. Regardless, the one year warranty does not protect a builder from claims for construction defects based on negligence or misrepresentation or even from certain other contract claims. Homeowners may still have viable claims for damages for problems such as water leakage, foundation issues, improper soil preparation, architectural or engineering defects, stucco or drywall defects or any other significant defect in construction, engineering or design.

Instead, the homeowner is limited only by the relevant statute of limitations. The statute of limitations for claims based on a contract are 6 years and the statute of limitations for negligence claims is 3 years. In addition, New Mexico has a 10 year statute of repose relating to claims that are not discovered for several years after substantial completion of the home‘s construction.

Due to the latent nature of construction defects, it is important to take seriously any indication of construction problems. A seemingly minor construction problem may well indicate far more serious construction defects. In addition, minor problems may suggest a sloppy or negligent builder. For instance, a rainwater leak may indicate other more serious problems with the stucco, drywall, roofing or foundation. It may also hint at other construction, architectural, engineering and design issues. After all, a sloppy or negligent builder is typically sloppy through and through.

Address the signs of construction defects early. Ignoring the problem is certainly not in the homeowner‘s best interests. Delay in addressing signs of construction defects will raise failure to mitigate damages issues. Worse still, failure to address the problems within the statute of limitations period will bar the claims completely.

DISCLAIMER

Construction defects come in all shapes and sizes. Some are obviously very serious. Others may appear less serious. Then there are those seemingly minor issues that point to much more serious issues. It is important for a homeowner or other property owner to know early which variety of construction defect they have on their hands.

An early investigation of the issues is typically in order. The builder should of course be contacted and you should check your purchase documents for any written warranties. Your contract may prescribe steps that you must take to pursue a warranty claim.

A good builder will take all warranty claims seriously. However, sometimes builders either do not understand the seriousness of the problem or attempt to avoid their responsibilities. Sometimes the inability of the builder to fully recognize the issues is innocent. On other occasions, the refusal to recognize the problem is a deliberate ploy to escape liability for the construction defects.

Unfortunately for the property owner, a delay in addressing the problem can result in ever worsening problems with the property. This in turn can devalue the property or render the property completely unmarketable. Delay in addressing the problems may be in the builder‘s interest but it is most certainly not beneficial to the property owner.

It is important to investigate and address construction issues as soon as possible after you discover them. This will protect against worsening structural, foundational, water intrusion issues and other construction related problems. It will also protect the homeowner‘s or property owner‘s right to recover damages if litigation is necessary.

Prior to contacting an attorney or other investigative resource, the homeowner or property owner should photograph and inventory the visible construction defects. These would include cracking, sagging, changes in flooring or wall shape, drainage issues, and indications of water intrusion and mold. When taking photographs, you can use a ruler, coin or other common item to show the scale of the condition you are trying to capture.

A careful assessment of the visible issues will help more accurately assess the scope and source of the problem. It will also assist an attorney in the evaluation of possible liability and responsibility for the defects. A careful evaluation will determine the existence of possible claims against the responsible parties.

DISCLAIMER

Customer or invitee slip and fall accidents are a common occurrence for businesses of all types. Sometimes, they are unavoidable. On occasion, customers/invitees simply fall at no fault of the business owner. There are also occasions where customers fall strictly due to their own negligence.

If the accident was unavoidable by the business owner, then typically the business will not be held liable for the damages resulting from the accident. There are many times when the actions of both the business and the customer/invitee combine to cause the accident. The question of liability is more complicated in these cases.

Many business owners believe that if the customer/invitee is aware of the hazards and is injured anyway, then the business will escape liability for any and all personal injuries suffered by the customer. This is not the case in New Mexico.

There are states that apply contributory negligence principles to personal injury lawsuits. Under contributory negligence, if the customer (or injured party in any other personal injury matter) is even a little at fault, then his or her claims are barred completely. Contributory negligence rules have extremely harsh consequences for injured persons since it could be argued that there is some small level of fault on the injured party in almost every personal injury case.

Recognizing the harshness of contributory negligence, New Mexico follows the more equitable comparative negligence rule. Under this rule, fault is apportioned between the parties. The apportionment will result in a pro rata reduction in liability for the business owner. In other words, if the business owner is only 50% at fault, then the business owner is liable for only 50% of the damages.

Comparative negligence goes further than the 50/50 split. Even if the business owner is only 10% responsible, then the business will be held responsible for its portion of the fault. In cases of serious personal injury or wrongful death, 10% can amount to significant liability.

The principles of comparative negligence are most striking in cases such as construction or repair. For instance, it is well established that even though a customer/invitee is well aware of the hazards of construction, remodeling or repairs such as debris left around the construction site, the business is not totally relieved of liability for the customer/invitee‘s injuries if the business was also negligent. Just as in any other personal injury case, the liability will be apportioned according to the negligence of each party.

A business owner is well advised to avoid any negligence and to keep the business premises free of possible hazards. Even hazards that should be obvious to the public, if negligently created or allowed, may result in liability in case of an accident.

DISCLAIMER

The recent New Mexico Court of Appeals case of May v. DCP Midstream illustrates as clearly as anything the lack of worker‘s remedies for work injuries caused by their employer‘s negligence. The case shows the absolute disdain for worker safety embodied by the Worker‘s Compensation Act which is purportedly for the protection of workers.

In a nutshell, the Court granted the defendant summary judgment on May‘s personal injury claims because the evidence failed to meet the extraordinary requirements established by Delgado v. Phelps Dodge. The case is remarkable in its blunt statement of a worker‘s right to compensation for the negligence of his or her employer.

The case involved a gas pipeline that was altered for special maintenance procedures. Despite warnings from employees regarding danger to workers, the company failed to return the pipeline to its normal operational condition. The failure to return the pipeline to its normal condition created significant safety hazards to workers. The defendant admitted that the altered condition of the pipeline created an unnecessary and dangerous condition to employees. The defendant also admitted that it knew of the danger and should have returned the pipeline to its normal operational condition.

Mr. May was indeed badly injured while working on the pipeline. He filed suit for personal injuries caused by the gross negligence of his employer. The defendant moved for summary judgment on the basis of the Worker‘s Compensation exclusivity provisions under the Act which limit a worker‘s recovery to worker‘s compensation coverage. The remedies under the Worker‘s Compensation Act are generally grossly inadequate in cases of serious personal injuries. Specifically, no punitive damages are allowed no matter how egregious the employer‘s conduct.

Remarkably, the Court stated “there is little doubt that Defendants were negligent, perhaps even grossly negligent.” However, gross negligence is not enough under New Mexico law. Under Delgado, the employer must have forced an employee “to perform a task in a specific dangerous circumstance in which the employer should have been clearly aware of a substantial likelihood of injury or death.” Thus, the Court despite the evidence showing that the employer knew of the danger and failed to correct it despite the ease with which it could be done and the warnings from employees, found that employer was safe from liability beyond the Worker‘s Compensation Act.

The degree to which the Courts will go to protect employer‘s against liability for their grossly negligent conduct is captured by the following language from the Court:

“An employer‘s disregard for safety requirements designed to help prevent injury and death on the job does not mean that an employer “specifically and willfully caused the employee to enter harm‘s way, facing virtually certain serious injury or death, as contemplated under Delgado.”

Keep this language in mind the next time you hear the tired refrain that trial lawyers and greedy plaintiffs are a threat to business and the very American way of life.

DISCLAIMER

Construction accidents can be devastating. They are generally far more serious than other workplace injuries. Often times, unlike run of the mill workplace accidents, construction accidents result in permanent injuries and even death.

Workers compensation laws, including those in New Mexico, presumably drafted to protect workers instead generally place a grossly inadequate cap on the amount and types of damages that can be recovered for a workplace accident. The statutes are really for the protection of the employer, not for the employee. Workers compensation statutes protect the employer from any claims of negligence though the cause of workplace accidents is often the result of unsafe work environments, inadequate training, unsafe and unqualified co-workers, dangerous and poorly maintained equipment and a hosts of other preventable causes. In essence, the employer is shielded from any liability for the worker‘s injuries and damages except in the most extreme cases of recklessness.

In order for an injured worker to recover for what in a construction accident could be catastrophic injuries or death, the worker must identify a third party beyond the employer that is responsible for the accident.

In a recent case in Texas, the attorney did just that. The case is very interesting for a number of reasons not the least of which was the $11 million jury verdict in favor of the deceased construction worker. Perhaps, more interesting from a legal perspective, was the plaintiff attorney‘s ability to tie liability to the employer‘s parent company escaping the limitations of the worker‘s compensation statutes.

Because the deceased plaintiff‘s estate was barred from suing his employer, the attorney ingeniously argued that the defendant‘s (Gulf Marine Fabricators) parent company (Gulf Island Fabrication) was responsible for the plaintiff‘s death. The attorney did admit to the jury that there was some fault lying with the employer, but argued that the parent company carried the bulk of liability for the crane accident which resulted in the plaintiff being crushed to death. The jury assigned only 15 percent liability to the employer. The remaining 85% liability accounted for the $11 million wrongful death jury verdict.

The plaintiff‘s attorney was able to show that the parent company and not the employer controlled the crane operations. The parent company controlled every aspect of the crane operations from hiring and firing to daily operations. Oddly, but by necessity, the defense attempted to place all the blame on the employer, a related company, to gain the protective shield of the workers compensations statutes.

The fact that a defense attorney would attempt to place blame on a company related to his own client clearly illustrates the reality that workers compensation statutes should really be called employer protection statutes. These statutes have sad and tragic consequences for workers and their families. Neither the worker nor his or her family will recover anything close to actual damages in cases of serious injuries or wrongful death. It takes little imagination to envision the economic harm, let alone the pain and suffering, that occurs when a worker is permanently injured or killed.

Unfortunately, the workers compensation statutes are here to stay. As such, if you or a loved one are injured or killed on the job, it is important that all possible causes of the accident be determined. It may very well be that the workers compensation statutes can be avoided by identifying third party liability for the accident. Or as the ingenious lawyer in this case was able to do, tie the liability to a related corporate entity not protected by the worker compensation statutes.

DISCLAIMER

Related Reading:
When An Attorney Is (and Isn‘t) Necessary in a Work-Related Injury Claim
Protections of New Mexico Workers‘ Compensation Act Waived for Non-Compliant Employers
Proper Equipment Maintenance Critical To Safe Work Environment in the Oil and Gas Industry

Collins & Collins, P.C.
Attorneys at Law