This blog presents Metropolitan Engineering Consulting & Forensics (MEC&F) claim management and claim investigation analyses of some of the typical claims we handle
An 11-year-old boy is dead and his 9-year-old boy is in critical condition after a truck crashed into their bedroom in the community of Madera Ranchos, according to the Madera County Fire Department. The driver of the truck also died at the scene.
Witnesses say the truck was heading southbound on Road 37 around 9:30 a.m. Saturday, when the driver appeared to have a medical emergency.
The man lost control of the truck, hit a propane tank causing the truck to go airborne and crashed into a garage that was made into a bedroom, witnesses say.
According to fire crews, the 11-year-old, identified by family members as Luis Lopez, and his brother, Matthew Lopez, were sleeping in that bedroom at the time of the incident.
Firefighters say when they arrived on scene both the driver and the 11-year-old boy had died.
They say the other child was taken to the Valley Children's Hospital with moderate to major injuries.
The cause of the crash is still under investigation.
The boys' family has set up a GoFundMe page to help with expenses.
Saturday, November 25, 2017 11:13PM MADERA, Calif. (KFSN) --
Authorities say that at 9:20 Saturday morning a 36-year-old man was driving his truck southbound on Road 37.
He had a medical emergency causing him to drift into the other lane -- entered the shoulder and then hit a propane tank. The tank then launched the car into the garage of a home that was converted into a bedroom.
"There was two children ages 11 and nine sleeping in the room on a bunk bed. The truck landed on top of the children," said CHP Officer Rafael Rivera.
Anthony Lopez was driving by the area and witnessed the aftermath.
"I get outside and I everybody panicking and I see cars getting off the driveway and I see everybody crying and say hey, is everything ok and they said no, somebody is stuck," said Lopez
The nine-year-old boy was rescued by the fire department, but the 11-year-old boy named by his family as Tito was pinned under the truck -- he died and so did the driver.
CHP says the accident could have been much worse given the circumstances.
"It was a pretty chaotic when we all first arrived, it is a huge propane tank and it was still leaking, so you had the danger of the propane being lit and exploding," explained Officer Rivera.
With this tragedy friends and family are trying to do whatever they can to help the family in their time of grief.
Lopez said, "Really from the bottom of my heart I hope they make it through this and they all stick together as one because that's the only way you can get through something as tragic as this."
A group of construction workers on the Kenai claims an oil company they worked with back in 2014 poisoned them and knew about it.
All three men claim they have the same medical problem (brain damage) and are seeking justice before they say it’s too late.
“That was the biggest mistake of my life was to take that job,” said Chris Lovely who lives in a constant state of disbelief and anger.
He says after he took temporary work in 2014, his dark hair came out in clumps. When it finally grew back, it was blonde and as fine as a baby’s.
Meanwhile, former co-worker, Steve Adams, says it’s rare for his hands to stop shaking. Both say the outlook is grim.
“My prognosis is five years right now as we’re sitting,” says Lovely.
Adams and Lovely are suing one of the world’s largest oilfield service companies, Baker Hughes.
Superior Court documents filed by their attorneys call the working conditions at Baker Hughes’ Kenai chemical transferring building a “ridiculous situation”. Toxic gasses exhausting out of a building and aimed right at Lovely and Adams. Both were employed by Ukpeagvik Inupiat Corporation, which was contracted by Baker Hughes to build a new building, which they say was only 40 feet away from the old one.
“It smelled like sulfur or rotten eggs. I attributed it to the port-a-potties,” Lovely said.
Adams and Lovely say they smelled it for months, but on May 8, 2014, it was especially bad.
“It felt like 500 bees were stinging me in the face, it was so caustic. I took my glove and held it on [to my face and] screamed 'Chris'! and with the other hand, I dropped the lift down and Chris stood up and his eyes were about this big,” Adams described, making his thumb and pointer finger into a big circle.
Adams points to what he says is an internal Baker Hughes document, which shows the company was working with chemical “RE31151CRW” and transferred it to the construction site through a vent that was just a few feet where Lovely and Adams were working. The document says the vent “was not in good shape or design.”
An Office of Safety and Health Administration investigation issued Baker Petrolite, a subsidiary company of Baker Hughes, a serious violation, accusing them of releasing emissions that could injure others. They were fined $1,050.
Other Baker Hughes documents show the chemical, a corrosion inhibitor, is considered hazardous by OSHA. Documents warn not to breathe its vapors, which could cause central nervous system depression, a condition the men’s doctor says they have in severity.
MediCenter Dr. R. Lynn Carlson says both Lovely and Adams have brain damage because of toxic exposure at the workplace. In a letter, Dr. Carlson says both men are 100 percent disabled.
Adams and Lovely claim Baker Hughes ignored the dangerous faulty vent for months until they were injured.
“We complained to our superintendent and he complained to their superintendent where something was supposed to be done about it but there was still that smell,” says Lovely, who couldn’t take it anymore.
He quit. However, he says, the damage was already done. Even a simple task like walking down the stairs is painful.
“It makes me really dizzy and the walls shake back and forth when I walk down a narrow path. I haven’t gone to the grocery store in nearly three years because of that.” Lovely says.
Because of the exposure, he can’t work, can’t drive and can’t go fishing.
“It’s like David and Goliath, you know, we’re the small guys we’re the expendable ones and there’s another guy there waiting for our job when we’re not there anymore.”
Three and a half years later, Adams and Lovely say they’ve each racked up medical bills over one $1 million. They both spend as much time with family as they can because they claim they don’t have much of it left.
“Everyone I’ve talked to, besides the opposing doctors, you know how that goes, said that’s it, that’s game over for you that’s a wrap,” said Lovely.
Baker Hughes is trying to get the lawsuit thrown out under a law called the VECO Act, which says if you get workers compensation, you can't sue the owner of the property. The judge should rule on that in the next month. If the suit does not get thrown out, the case will go to trial in January.
After KTVA’s interview with Lovely and Adams, Baker Hughes filed a motion to prevent pre-trial publicity. That means everyone involved in the lawsuit, including Lovely and Adams, can no longer talk to the media. Baker Hughes sent KTVA this statement about the suit:
“Baker Hughes will continue to defend the case; however, in light of the Court’s order issued today, we cannot comment at this time.”
========================
Baker Petrolite LLC Private Company
Company Profile Sector: Materials Industry: Chemicals Sub-Industry: Basic & Diversified Chemicals Baker Petrolite Corporation provides chemicals and engineering technology solutions. The Company specializes in oil and water separation technology solutions, as well as delivers pipeline integrity services.
PETROLITE Copolymers Specialty polymers and waxes to meet your needs
Chemical nature and physical properties
The PETROLITE™ copolymers are copolymers of propylene and ethylene. The addition of propylene results in short chain branching, which reduces the polymer’s crystallinity as compared to our POLYWAX™ polyethylenes. The copolymers have the narrow molecular weight distributions offered by the POLYWAX polyethylene line, but the branching provides a more flexible and softer polymer with improved solvent solubility.
Solubility characteristics
Additional branching provides increased solubility of the PETROLITE copolymers as compared to POLYWAX polyethylenes of the same weight. These products are most soluble in cyclic and bicyclic saturated hydrocarbons (decalin), tri- and tetra-chloro substituted methanes and ethanes (carbon tetrachloride) and aromatics (benzene, xylene, and toluene).
Baker Petrolite FACT Services Baker Petrolite FACT Services can help you keep your business functioning and maximize your profitability
Baker Petrolite FACT™ Services fuel additive consultants can help you select the right fuel additives to help you meet your goals, whether your business relates to fuel terminals, pipelines, marine, biofuel plants, railroads or power plants. Our dedicated fuel additives specialists provide superior services, and logistical support - from detailed product recommendations to comprehensive laboratory support. We help you through every step of the process.
Baker Hughes Corrosion Control Chemical Services Maximize value and longevity of producing assets
CRONOX™ corrosion control solutions protect the lifetime and productivity of your assets by reducing equipment failure, maximizing production time, and reducing leaks and spills. By combining innovative chemistries, knowledgeable experts and continuous monitoring, we ensure the right chemical treatment program is implemented to solve your corrosion challenge.
Target corrosion challenges under any circumstance
Whether applied at the first sign of corrosive activity or later to mitigate further damage; our comprehensive line of inhibitors protects against corrosion in any production, storage, transport, or processing equipment–regardless of the cause or conditions. This includes inhibitors specially formulated to protect against corrosion in: sour or high-CO2 environments systems with oxygen ingress HP/HT and high-velocity environments.
Tailored treatment designs
Baker Hughes corrosion experts understand how field conditions, application types, and chemistries affect treatment results. Therefore, each of our corrosion inhibitors undergoes extensive testing to ensure we develop the best treatment design for your asset integrity needs. After implementation, we continue to monitor and fine tune your treatment to ensure consistent and cost-efficient performance.
Our unique combination of field services, development capabilities, and dedicated environmental lab services bring new and innovative green chemistries to market.
Our chemical products and services are specifically designed to deliver asset integrity and flow assurance under the harshest operating conditions.
=============
Prevent rust and reduce cost
Baker Hughes TOLAD™ rust inhibitors extend pipeline and storage tank life, reducing maintenance cost and preserving fuel quality. The product line includes a rust inhibitor for gasoline, diesel, LPG, and jet fuel.
These proven, cost-effective, oil-soluble rust inhibitors maintain the integrity of pipelines and storage tanks by forming a protective film on pipe walls or other steel surfaces. The polar molecule is adsorbed onto the metal surface to prevent a water-and-oxygen attack on the metal.
Our TOLAD rust inhibitors also can prevent clogged filters and fouled nozzles while increasing the life of engine components and oil burners. They also can prevent corrosion of inline equipment, such as meters, valves, and pumps.
In addition, they reduce fuel color degradation and improve fuel thermal stability.
Our rust inhibitors meet the range of specifications for refineries, pipelines, and terminals to protect equipment and maintain fuel quality. These specifications, generally, are based upon the NACE® International test method TM0172-2001.
Jerry and our team of Baker Hughes experts are available to answer your questions. Contact Jerry today.
Four people, including two children under the age of six, died in a Garland house fire that started on a patio Saturday.
The victims were identified as 40-year-old Lorenzo Castillo, his 29-year-old wife Ana Castillo, Ana's 5-year-old daughter Alia and the couple's 2-year-old son Alan.
Five other people in the home escaped, including the family's 8-year-old son, according to the fire marshal.
Family members said the Castillo's, who live in Bridgeport, were visiting Lorenzo's brother, his wife and their two children at their Garland home. Other family, including Lorenzo's father, had just left town.
Victims Identified in Deadly Garland House Fire A Garland Fire Department statement says the bodies of two adults and their two children were found early Saturday. Five other people in the home escaped, including the family's older 10-year-old son according to the fire marshal.(Published Saturday, Nov. 25, 2017)
They said the family had been enjoying the night together on a back patio in the hours before the fire began.
A neighbor across the street called 911 to report the fire shortly after 1 a.m. Saturday. The homeowner tried to re-enter the home when he realized his cousin and the rest of his family were missing, but the fire was too intense.
Another neighbor said he began banging on the windows.
"It really breaks my heart," said the neighbor, 16-year-old Anthony Cruz.
Back home in Bridgeport, their voices and laughter are missing from Ana's family home. The Castillos had recently moved in with her mother and stepfather to help care for him as he battles terminal cancer.
“I don’t hear my niece and nephew running around calling for my mom or me, saying our names like they used to. It’s too quiet,” said Ana’s sister, Brenda Mireles.
Now Ana's parents and siblings will step in to help raise her surviving son, an 8-year-old coping with the fact his parents and siblings won't be coming home.
"He'll always have us. We'll always love him," said Mireles.
Authorities traced the fire to an enclosed back patio and don't believe the blaze was intentional. The fire marshal said there was a space heater, refrigerator and other electronics in the room and a fire pit outside. The exact cause of the fire remains under investigation.
===============
GARLAND, Texas -- The Garland Fire Department is investigating what caused a fire that killed four people, including two children, early Saturday morning.
The victims have been identified as 41-year-old Lorenzo Castillo, 29-year-old Ana Castillo, Ana's 5-year-old daughter, and the couple's 2-year-old son. They were visiting from Bridgeport, Texas and staying with relatives over the Thanksgiving holiday weekend.
Just after 1 a.m., firefighters were called to a home at 1416 Williams Drive, off South Garland Avenue and just north of West Miller Road.
The house was engulfed in flames with people still inside as crews arrived.
Neighbor Anthony Cruz said the man living at the home tried to go in for the rescue.
"The family was running towards my house and the husband was trying to go in and rescue them while I was knocking on the window," said Cruz.
A neighbor called 911 and firefighters also tried to save those inside once they arrived but were unable.
There were a total of nine people inside the home at the time of the fire. Five were able to escape, including a third son of the couple.
Ashley Snead said the family living at the home is liked by all their neighbors and family gatherings were not uncommon.
"They are always having families over for get-togethers and just really enjoying life," she said.
Officials say the family of four was sleeping in a bedroom in the back of the house when the fire broke out inside an enclosed patio.
While the fire doesn't seem to be intentional, the cause is under investigation. The owner of the home told officials they heard a "popping noise."
The home had one smoke detector in the hallway, but it's unclear if it was working.
A neighbor across the street called 911 to report the fire.
Troy and Baden Biddle were
killed in a multi-vehicle crash on Interstate 80 in San Pablo.
Troy and Baden Biddle were
killed in a multi-vehicle crash on Interstate 80 in San Pablo.
California drunk driver Fred Lowe, 47, of Sacramento kills 4 people in a white Nissan sedan after he collides with it with his blue Mercedes on I-80 in San Pablo, CA
California drunk driver Fred Lowe, 47, of Sacramento kills 4 people in a white Nissan sedan after he collides with it with his blue Mercedes on I-80 in San Pablo, CA
California drunk driver Fred Lowe, 47, of Sacramento kills 4 people in a white Nissan sedan after he collides with it with his blue Mercedes on I-80 in San Pablo, CA
Napa community mourns loss of two killed in hit-and-run crash
NAPA, Calif. (KGO) --
A
hit and run crash that ended with four family members dead and six
others wounded claimed the lives of a father and son from Napa who were
described by community members as an "All-American Family" taken from
this Earth too soon.
Cam Neal, Athletic Director and teacher at
Vintage High School in Napa recalls the joy Daryl Horn and his son Joe
brought to all around him. "I wish people have a chance to know Daryl and see what Joe was gonna do. He was a real special kid."
This
is the sentiment, echoed by so many in Napa who knew 14-year old Joe
Horn and his father Daryl Horn. The news of their passing, almost too
much to bear.
Just days after Thanksgiving, Daryl was on a family
trip with Joe and his older son, Jared, and two relatives from
Washington State, 52 year old Troy Biddle and his son, 12 year old Baden
Biddle.
While driving down I-80 in San Pablo, they were hit by
Fred Lowe. He was drunk. His license had already been suspended from a
prior drunk driving offense. The family's car crossed the median and
flipped. Everyone inside, except Jared who was driving, was killed.
Shannon
De Valois used to date Jared and through a veil of tears described the
sadness she felt for what happened. "My thoughts are with his family,
everyone in town is really devastated." "Words can't describe the sadness," says principal of Vintage High School, Mike Pearson.
The
devastation was felt, perhaps deepest in the sports community at
Vintage High School where Daryl was a beloved coach. Neal tells ABC7
Daryl had a special connection with all his students.
"He had a nickname for every kid he coached. It stuck with them for years."
A
community's hearts are with the surviving Horn family members - mom
Denise, big sister Greta and Jared, a star baseball player at Cal.
The
family released a statement Monday night on behalf of the Horn and
Biddle families, saying, "These man were dedicated to youth sports and
mentoring children. Through the years they have had tremendous impact on
the lives of young boys and girls that their communities will benefit
from for generations."
=========================
SAN PABLO, Calif. (KGO) --
A family is in mourning after four of its members were killed in a hit-and-run crash on I-80 in San Pablo on Saturday night.
Relatives
Daryl Horn, 50, and Joseph Horn, 14, both of Napa, and Troy Biddle, 52,
and Baden Biddle, 13, both of Bainbridge Island in Washington, died in
the crash.
=================
A baseball player at UC Berkeley
survived a deadly crash on Interstate 80 in San Pablo on Saturday, but
four members of his family were killed, officials announced Monday.
Jared
Horn of Napa was driving along I-80 at the San Pablo Dam Road exit when
the multi-vehicle crash, which is being investigated as a hit-and-run,
occurred.
Daryl Horn, 50, and
Joseph Horn, 14, both of Napa, and Troy Biddle, 52, and Baden Biddle,
12, both of Bainbridge Island in Washington, died in the crash,
according to the Contra Costa County coroner's office.
In
a statement the Horn and Biddle families said they are focusing on
supporting each other and ask for privacy during this time. (Full
statement attached at the bottom of this article)
Troy and Baden Biddle were
killed in a multi-vehicle crash on Interstate 80 in San Pablo.
Photo credit: Biddle Family
Mike
Neu, the head coach of the Golden Bears' baseball squad, wrote in a
statement that the team "cannot image what Jared is going through right
now" and offered thoughts and prayers to him and his family.
"Jared
is a respected and beloved member of our team as well as an incredible
student-athlete, teammate and friend," Neu wrote in the statement. "We
will give him any and all support that we can as he goes through this
unthinkably difficult time."
The
suspected driver who caused the deadly wreck has been identified as Fred
Lowe of Sacramento, officials said. Lowe has been taken into custody.
"A
witness identified the driver, saw him hit the vehicle and leave," CHP
Officer Matthew Hammer said. "He relayed the info the Contra Costa
County Sheriff’s Department."
Lowe,
47, was driving on a suspended license due to a prior DUI conviction,
the CHP said. In addition, he was involved in a second hit-and-run
shortly after the fatal crash when he smashed into a parked vehicle near
San Pablo Dam Road, right off the El Portal onramp, not far from the
original crash site.
Five cars
were involved in the original wreck, according to the CHP. The car Horn
was driving overturned. He was taken to the hospital and later
released, but four passengers in the car he was in were pronounced dead
at the scene.
Troy and Baden Biddle were
killed in a multi-vehicle crash on Interstate 80 in San Pablo.
Photo credit: Biddle Family
Six others, including a child, were also injured in the crash involving five vehicles, according to the CHP.
The freeway was shut down for about seven hours overnight, the CHP said.
The
CHP said it typically sees a spike in impaired drivers around the
holidays. The department has been operating under what’s called a
maximum enforcement period. That means more officers on the highways
across the Bay Area, with a goal of keeping people safe.
"In
our area, we have a lot of really bad collisions, a lot of fatalities,
and so we are really stopping and slowing people down to prevent those
collisions," CHP Officer Charlotte Brannon said.
Another
issue is drivers and passengers not wearing seatbelts. The CHP said of
27 fatalities a year ago in its jurisdiction, 14 were not wearing
seatbelts.
The Biddle and Horn families provided the following statement Monday:
UC Berkeley Baseball Player Survives San Pablo Crash That Killed 4 People: Sources
A
baseball player at UC Berkeley survived a deadly crash on Interstate 80
in San Pablo on Saturday, but four other people in the car he was in
were killed, sources tell NBC Bay Area. Pete Suratos reports.
(Published Monday, Nov. 27, 2017)
"The
Horn and Biddle families appreciate the tremendous outpouring of
support from their communities. Troy Biddle and Daryl Horn were beloved
fathers, husbands, sons, brothers, friends and coaches. Baden Biddle
(13) and Joe Horn (14) were beautiful, caring and innocent boys whose
loss will be felt by all those who knew them. The families are focusing
on supporting each other and ask for privacy during this time. Amanda
and Denise would appreciate if the message and memory of those lost were
of their love of family and community. These men were dedicated to
youth sports and mentoring children. Through the years they have had a
tremendous impact on the lives of young boys and girls that their
communities will benefit from for generations. The dads and their boys
spent their last day doing what they loved, playing in an annual father
son basketball tournament. It was an amazing day filled with pride and
laughter. The surviving families consist of Amanda Horn (Biddle) and
their daughter Devon Biddle (10), Denise Horn their daughter Greta and
son Jared. The families have a deep love for each other and will use
their strength to manage this difficult time."
========================= SAN PABLO, CA — A Sacramento man suspected of driving under the influence and causing a catastrophic freeway crash Saturday that killed four people has been arrested, the California Highway Patrol reported.
Fred Lowe, 47, left the crash scene at Interstate 80 and was apprehended after Contra Costa County Sheriff’s Office deputies spotted a blue Mercedes reported to be involved in the crash, CHP spokesman Officer Matther Hamer said. Details of the arrest and where deputies spotted the Mercedes were not immediately available Sunday.
Lowe was arrested on suspicion of felony vehicular manslaughter, felony hit-and-run and felony DUI, Hamer said. The crash also hospitalized six people, but the CHP on Sunday did not have information on the extent of their injuries or conditions.
According to the CHP, the blue Mercedes that Lowe is suspected of driving collided with a white Nissan sedan while going eastbound on I-80 near the San Pablo Dam Road exit around 8:10 p.m. The Nissan lost control and went over the center divide and into the westbound lanes, where it overturned.
All four passengers in the Nissan died at the scene, Hamer said. Authorities have not identified them.
The Nissan’s driver went by ambulance to a hospital, along with the driver of a Honda and two people each from a Mazda SUV and a Lincoln SUV. Those three cars were going west on I-80 and all crashed as the Nissan came over the center divide, the CHP reported.
The blue Mercedes also is believed to have been involved in another hit-and-run earlier on I-80, Hamer said. Details of that incident were not available immediately.
The CHP closed all westbound lanes on I-80 and diverted traffic, an unwelcome development for commuters anytime on a Saturday but especially so on the first Saturday of the holiday shopping season. They diverted traffic onto El Portal Drive, and side streets quickly clogged.
One lane on eastbound I-80 also closed down for more than an hour after the crash. All westbound lanes were opened around 4 a.m. Sunday.
Lowe remained at the County Jail in Martinez on Sunday in lieu of $1.15 million bail.
===================
DUI arrest made in California multi-car crash that killed 4
November 26, 2017 By The Associated Press
SAN PABLO, Calif.
Authorities arrested a Northern California man they say was behind a multi-car pileup that killed four people and injured six others.
Fred Lowe of Sacramento was arrested on suspicion of felony vehicular manslaughter, felony hit-and-run and felony DUI, California Highway Patrol spokesman Officer Matthew Hamer told the East Bay Times .
Hamer said Lowe, 47, left the crash scene at Interstate 80 in the San Francisco area's east bay and was apprehended after Contra Costa County Sheriff's deputies spotted a blue Mercedes reported to be involved in the crash.
The blue Mercedes Lowe is suspected of driving collided with a white Nissan sedan Saturday night, causing the Nissan to flip over and crash into three vehicles traveling in the opposite direction.
All four passengers in the Nissan died at the scene. The driver was hospitalized.
Details of the arrest were not available and CHP authorities did not have information on the six people who were hospitalized.
Lowe was at the Martinez Detention Facility on Sunday in lieu of $1.15 million bail.
It was not immediately known if he had an attorney, and attempts by The Associated Press to reach family and associates for comment were unsuccessful.
===================
SAN PABLO, CA (BCN)
Four persons died tonight in a five-vehicle collision on westbound Interstate Highway 80 in San Pablo, California Highway Patrol officials said.
Five more people were transported to the hospital with injuries, according to CHP.
The collision was reported at 8:11 p.m. at Highway 80 at the San Pablo Dam Road off-ramp.
A Sig-alert was issued at 9:22 p.m. because all westbound lanes of Highway 80 are blocked near the collision.
CHP officials do not have an estimate for when the westbound lanes will reopen. One eastbound lane is also closed.
It has become increasingly common for those in the construction industry to encounter indemnity provisions in their contracts. Indemnity provisions are agreements where one party (the promisor) agrees to protect and hold harmless the other party (the promisee) from liability arising from certain risk.
These provisions can shift the risk of liability from a negligent party (the promisee) to an innocent party (the promisor) and therefore have been criticized as being unfair.
Ohio has a statute, Ohio Revised Code 2305.31, which provides that an indemnity provision in a construction contract that purports to indemnify and hold harmless a party from personal injury or property damage arising from his own negligence is void as against public policy and unenforceable.
This statute has been interpreted to mean that the promisor (i.e., subcontractor) cannot be required to indemnify the promisee (i.e., general contractor) for the promisee’s own negligence. It has also been interpreted to prohibit the shifting of liability arising from the negligence of the promisee, regardless of whether the promisee (i.e., general contractor) is one percent negligent or 100 percent negligent.
Accordingly, Ohio construction contracts, regardless of how they are written, generally cannot require one party to indemnify another for the other party’s negligence, in whole or in part. This means that the risk of liability remains with the negligent party or parties, as if such an indemnity provision never existed.
However, a Court of Appeals case out of Dayton (COULTER et al.
v.
DAYTON POWER & LIGHT COMPANY, 134 Ohio App.3d 620 (1999)) determined that “hold harmless” language was enforceable in some aspects. The court ruled in this case that the contractor pay the owner’s attorney’s fees and expenses (but not the damages for the injured employee) incurred by the owner in defending a claim asserted by the contractor’s injured employee.
This case appears to carve out an exception to the general unenforceability of such provisions under Ohio Law, but a different Court of Appeals case from another part of the state held otherwise.
The Dayton case means that while a contractor should be protected against an injured employee’s direct claims under worker’s compensation, if the injured employee sued or threatened to sue the owner, the contractor may be liable (at a minimum) for the owner’s attorney’s fees and costs.
In view of this case, it is important for subcontractors and contractors to closely scrutinize their contracts and modify the indemnification provisions appropriately.
Some owners or contractors are now requiring contractors or subcontractors to post insurance covering the contractor’s or owner’s negligence – in essence to insure indirectly what is unenforceable by contract.
A Court of Appeals case out of Cleveland (WADDELL et al., v. LTV STEEL COMPANY, INC. et al.) found that indemnification clauses that obligate the contractor or subcontractor to purchase a liability insurance policy to insure against the owner’s negligence are void, as well as any agreement to indemnify the owner for attorney’s fees and costs.
In any event, the complexity of indemnity provisions and insurance coverage mandates that contractors and subcontractors closely review these provisions with their attorneys and insurance consultants.
Once a contract is negotiated, we recommend that the contractor or subcontractor e-mail a copy of the insurance and indemnity provisions in the contract to their insurance agents and request the precise type of policy necessary to cover this risk.
===================
COULTER v. DAYTON POWER & LIGHT CO.
No. 17602.
134 Ohio App.3d 620 (1999)
COULTER et al.
v.
DAYTON POWER & LIGHT COMPANY, Appellant;
Ohio Bell Telephone Company, Appellee, et al.
Court of Appeals of Ohio, Second District, Montgomery County.
Decided July 30, 1999.
Attorney(s) appearing for the Case
Scott R. Thomas and Maria J. Papakirk, for appellant. Edward L. Bettendorf, for appellee.
WOLFF, Judge.
The Dayton Power & Light Co. ("DP&L") appeals from a judgment
of the Montgomery County Court of Common Pleas, which entered judgment
in favor of the Ohio Bell Telephone Co. ("Ohio Bell"), in a dispute over
the applicability of a contractual indemnification provision.
The facts giving rise to this appeal are as follows.
[134 Ohio App.3d 622]
In 1993, DP&L granted Ohio Bell an easement to use DP&L's land
to install a fiber-optic cable. In the agreement, Ohio Bell agreed to
indemnify DP&L for any loss, damage, or expense related to the
easement. Two workers were subsequently injured while excavating the
site, allegedly because DP&L had failed to adequately mark buried
gas and electric lines, and the workers filed suit. DP&L filed a
cross-claim against Ohio Bell based on the indemnification provision.
DP&L filed a motion for summary judgment on the issue of
indemnification, and the trial court denied the motion on May 20, 1997.
On August 18, 1997, when other claims were still pending in the case,
the trial court denied a DP&L motion for reconsideration and refused
to grant Civ.R. 54(B) certification to its May 20, 1997 judgment entry
denying summary judgment.
The other claims were later settled so that
the sole remaining issue in the case was whether DP&L was entitled
to indemnification from Ohio Bell. At that point, the trial court
concluded that it would make "no sense and would not be judicially
economical now to have a trial on comparative negligence with an
`automatic' appeal of the indemnification issue" to the court of
appeals. The court granted Civ.R. 54(B) certification on its May 20,
1997 order nunc pro tunc and "enter[ed] final judgment in favor of Ohio Bell on the indemnification question."
DP&L raises one assignment of error on appeal:
"The trial court erred to the prejudice of DP&L by improperly denying DP&L'S motion for summary judgment."
DP&L's argument under this assignment of error is threefold.
First, DP&L claims that the trial court erred in concluding that the
scope of the indemnification provision was ambiguous and that two
sophisticated business entities cannot contractually allocate
responsibility for damages resulting from the negligence of one party to
the other party. Second, DP&L claims that the trial court erred in
relying upon R.C. 2305.31 in concluding that the contractual
indemnification provision was against public policy. Third, DP&L
contends that, even if the indemnification provision was void as applied
to damages resulting from its own negligence, DP&L was nonetheless
entitled to indemnification for its attorney fees and costs.
The indemnification provision in the easement provides:
"In consideration for the [easement], [Ohio Bell] hereby agrees to
indemnify and save [DP&L] free and harmless from any and all loss,
damage, or expense, including but not restricted to attorneys fees and
court costs, arising from, caused by or incident or related to, injuries
or damages to property (including property of [Ohio Bell]) or persons
or the death of any person or persons, including but not restricted to
employees and agents of the Owners, in the performance of their duties
or otherwise; which may arise out of or be incident or related in any
way
[134 Ohio App.3d 623]
to the easement described above on [DP&L's] premises, subject,
however, to the provisions of Section 2305.31 of the Revised Code of
Ohio, if applicable, and provided further, that nothing herein shall
require indemnification as to any claims against [Ohio Bell] arising
under the Ohio Workers' Compensation Law.
"* * * "This easement is subordinate to all existing facilities of
[DP&L], either above or below the surface. [DP&L] has attempted
to accurately locate all of its underground facilities; however, [Ohio
Bell] shall be responsible for any damage to said facilities whether
accurately located or not."
The trial court found that these provisions were ambiguous because
the first paragraph required Ohio Bell to indemnify DP&L for all
loss, including damages to property and bodily injury, while the second
paragraph required Ohio Bell to indemnify DP&L for damage to the
underground facilities if they were not properly located, but was
unclear as to "whether Ohio Bell is held responsible for bodily injury if the underground facilities are inaccurately located." (Emphasis sic.)
The trial court construed the second paragraph to establish that "the
entire agreement only relates to damage to the promisee's [DP&L] own
property."
We disagree with the trial court's finding that the provisions of the
easement were ambiguous as to the allocation of responsibility for
damages, whether resulting from bodily injury or damage to property. In
our view, the second paragraph did not narrow the scope of the first.
Rather, it elaborated on the first paragraph by making clear that Ohio
Bell's duty to indemnify included situations in which DP&L had
failed to accurately locate all of its underground facilities. Moreover,
the second paragraph specifically referred to underground facilities
and damage thereto, which explains why there was no mention of
responsibility for bodily injury in that section. The trial court's
interpretation did not recognize that the second paragraph had a
narrower scope than the first and ignored the plain language of the
first paragraph indicating that Ohio Bell would hold DP&L harmless
"from any and all loss, damage, or expense * * * arising from, caused by
or incident or related to, injuries or damages to property * * * or
persons" related to the easement. Thus, we find that these paragraphs
are not inconsistent and that the trial court erred in concluding that
the indemnification provision in the easement was ambiguous.
Moreover, Ohio law does not require that contracts purporting to hold
an indemnitee harmless for its own negligence contain express language
to that effect. In Delco Products Div., Gen. Motors Corp. v. Dayton Forging & Heat Treating Co.
(Feb. 2, 1979), Montgomery App. No. 6017, unreported, 1979 WL 155686,
we held that general language providing indemnification for "all
liabilities, claims or demands for injuries or damages to any person or
property growing out
[134 Ohio App.3d 624]
of the performance of this contract" clearly and unequivocally included negligence by the indemnitee. Id.
at 10. In so holding, we observed that it "`is difficult to see how
more comprehensive or inclusive language could have been used.
Negligence might have been spelled out specifically, but this is not
required.'" Id. at 8, quoting Gen. Acc. Fire & Life Assur. Corp., Ltd. v. Smith & Oby Co. (C.A.6, 1959), 272 F.2d 581,
585, 11 O.O.2d 346, 349. Similarly, it is difficult to imagine an
indemnification provision stated more broadly than the one contained in
DP&L's contract with Ohio Bell, wherein Ohio Bell agreed "to
indemnify and save [DP&L] free and harmless from any and all loss,
damage, or expense, including but not restricted to attorneys fees and
court costs, arising from, caused by or incident or related to, injuries
or damages to property (including property of [Ohio Bell]) or persons
or the death of any person or persons * * * in the performance of their
duties or otherwise; which may arise out of or be incident or related in
any way to the easement." Thus, we conclude that this language clearly
encompassed indemnification for DP&L's own negligence. See, also, Teledyne Osco Steel v. Woods (1987), 39 Ohio App.3d 145, 529 N.E.2d 1271.
The Supreme Court of Ohio expressed a similar view of an indemnification agreement in Glaspell v. Ohio Edison Co. (1987), 29 Ohio St.3d 44,
29 OBR 393, 505 N.E.2d 264, which addressed the general rule that
indemnification agreements should be narrowly construed. In that case,
the Supreme Court specifically declined to narrowly construe an
indemnification agreement that protected an indemnitee from its own
negligence where both parties were sophisticated business entities,
finding that such a construction was unreasonable under the
circumstances. The court stated that the rule of narrowly construing
this type of indemnification agreement had been developed to protect a
contracting party in a disparately weaker bargaining position from the
stronger party's attempt to impose wholly inequitable burdens upon the
weaker party. Id. at 47, 29 OBR at 395-396, 505 N.E.2d at 266.
The court found that there was no need to construe indemnification
provisions narrowly when the burden of indemnification had been assented
to in a context of free and understanding negotiation. Id.
Because both parties to this agreement were sophisticated business
entities that were not in disparate bargaining positions and that were
certainly capable of looking out for their own interests, we conclude
that the agreement between DP&L and Ohio Bell did require Ohio Bell
to indemnify DP&L for damages resulting from DP&L's own
negligence and that this requirement did not violate public policy
absent a statutory provision to the contrary. The trial court found that R.C. 2305.31 provided statutory authority
for concluding that the indemnification provision violated public
policy. R.C. 2305.31 states:
[134 Ohio App.3d 625]
"A covenant, promise, agreement, or understanding in, or in connection
with or collateral to, a contract or agreement relative to the design,
planning, construction, alteration, repair, or maintenance of a
building, structure, highway, road, appurtenance, and appliance,
including moving, demolition, and excavating connected therewith,
pursuant to which contract or agreement the promisee, or its independent
contractors, agents or employees has hired the promisor to perform
work, purporting to indemnify the promisee, its independent contractors,
agents, employees, or indemnities against liability for damages arising
out of bodily injury to persons or damage to property initiated or
proximately caused by or resulting from the negligence of the promisee,
its independent contractors, agents, employees, or indemnities is
against public policy and is void."
In sum, R.C. 2305.31 voids construction contracts that attempt to
indemnify an indemnitee against liability arising out of or proximately
caused by its own negligence.
The trial court found that the contract between DP&L and Ohio
Bell fell within the ambit of R.C. 2305.31, which "voids a contract
which attempts to indemnify DP&L against liability for damages
arising out of bodily injury, proximately caused by the negligence of
DP&L." In so concluding, the trial court noted that Ohio Bell's
construction of an underground communication system on DP&L's
property was "in connection with, or collateral to an agreement relative
to the construction of an appliance including excavating connected
therewith" and that the contract involved indemnification of the
indemnitee, DP&L, for its own negligence.
Although the trial court correctly observed that DP&L sought
indemnification for its own alleged negligence and that the type of work
to be undertaken by Ohio Bell pursuant to the contract was the type of
construction specified in R.C. 2305.31, the trial court's application of
the statute to the arrangement between DP&L and Ohio Bell did not
give effect to all of the statute's pertinent provisions. Significantly,
R.C. 2305.31 applies only to contracts or agreements "pursuant to which
* * * the promisee * * * has hired the promisor to perform work." In
the context of such an employment relationship, R.C. 2305.31 prohibits
the employer from shifting the responsibility for its own negligence
onto an employee through an indemnification provision. This restriction
is in keeping with the purpose underlying R.C. 2305.31 to require
employers to provide employees with a safe place to work. Lamb v. Armco, Inc. (1986), 34 Ohio App.3d 288, 290, 31 OBR 610, 611-612, 518 N.E.2d 53, 55-56; Best v. Energized Substation Serv.
(Aug. 17, 1994), Lorain App. No. 93-CA-005737, unreported, 1994 WL
440471, at 10. The contract between DP&L and Ohio Bell, however, did
not involve DP&L hiring Ohio Bell to perform construction work.
Rather, the contract granted Ohio Bell an easement over DP&L
property in the use of which Ohio Bell would
[134 Ohio App.3d 626]
presumably hire others to perform construction work. Thus, the
relationship between DP&L and Ohio Bell was not the type of
relationship contemplated by the legislature when it enacted R.C.
2305.31. The cases cited by the trial court in support of its decision
were not factually similar to this case but presented situations in
which the indemnitee had contracted with the indemnitor to perform the
type of construction work described in R.C. 2305.31. Thus, the trial
court erred in concluding that the indemnification provision was void
and against public policy pursuant to R.C. 2305.31.
Finally, DP&L contends that, even if it was not entitled to
indemnification for damages attributable to its own negligence, it was
nonetheless entitled to indemnification for its attorney fees and costs
as provided in the parties' agreement. DP&L cites Moore v. Dayton Power & Light Co. (1994), 99 Ohio App.3d 138,
142, 650 N.E.2d 127, 130, in support of the severability of a provision
providing indemnification for attorney fees and costs even where other
portions of an indemnification provision are unenforceable on public
policy grounds. Because we hold that DP&L is entitled to
indemnification from Ohio Bell for all of its damages, this question is
moot. DP&L is entitled to attorney fees and costs in addition to the
other sums owed pursuant to the indemnification agreement.
The assignment of error is sustained.
The judgment of the trial court is reversed, and summary judgment will be entered in favor of DP&L. Judgment reversed. FAIN and FREDERICK N. YOUNG, JJ., concur.
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