Tank Explosion on the Job

Almost two years after he survived a deadly tank explosion on the job, in a complicated case with multiple defendants, tens of thousands of documents and more than seventy depositions taken, Jerry Leavitt, a 47 year old welder, represented by lead counsel Donald J. Beck and Larry Booth, along with co-counsel Robert Bruce Arnold, settled his personal injury case for slightly more than $8 million.

Leavitt was a foreman at Matrix Services, which primarily services petroleum facilities. The defendant, Ultramar Corp., had hired Matrix to rebuild Tank 4, a clean, empty hydrocarbon storage tank at one of its facilities in Wilmington, California. Adjacent to that tank, about 20 feet away, was Tank 2, with a catwalk at a height of approximately 40 feet connecting it to Tank 4.
At some point in the project, it became necessary to disconnect and reconnect this catwalk between the two tanks, one that was empty and one that contained more than 8,200 barrels of flammable liquid. The catwalk had been previously cut down by another foreman at Matrix a month before, using a torch, without incident.
Leavitt was assigned the reattachment tasks, and because there were no plans or specs for the reattachment, Leavitt connected the catwalk in the same manner it was taken down, with a torch. Leavitt used approximately four tack welds, about the size of quarters, to hold the catwalk in place temporarily while the workers retrieved some additional equipment.

Leavitt alleges he was standing next to Tank 2 for approximately two to five minutes, waiting for the workers to return, when the tank suddenly exploded, hurtling him 45 feet to the ground.

Leavitt spent a total of three months in the hospital and underwent 13 surgeries, leaving him with a limited range of motion of both forearms and a surgically altered foot, inhibiting movement and limiting balance. Leavitt, whose medical bills totaled approximately $600,000, is not expected to ever be able to work again. Leavitt sued Ultramar as owners of the facility, Team Safety Corp., which provided ”fire watch” for the construction job, Jacobs Engineering/J.E. Merit and Matrix Services.

Plaintiff's counsel contend that Ultramar failed to inspect Tank 2 for corrosion for 50 years, though the plant was located in a saltwater environment. At the time of the accident, the tank was covered with insulation necessary for a type of product other than that for which it was then being used, and this covering disguised the corrosion underneath.
Beck asserted that Ultramar had not periodically tested the tanks for corrosion as the industry prescribed. When the insulation was peeled off after the explosion, it revealed what counsel describes as ”through and through” corrosion and holes.

The plaintiff maintains that it was the defendants' job to test the tanks for corrosion. “The guys in suits and hard hats should have sat down before the job got started to make sure they had everything planned,” Beck states. “[Leavitt] is not an engineer, he's a welder. If they thought it was dangerous, they should've investigated to make sure there were adequate plans.”

Counsel for Ultramar, Cliff Schaffer, president and managing partner of Schaffer & Lax, does not believe corrosion played any role in the explosion. “An ultrasonic inspection [by an independent contractor of the Insulated Tank 2 in 1994] showed no significant corrosion,” states Schaffer. Instead, Ultramar attributes much of the liability to Leavitt, who was believed to be an experienced welder who should have known not to weld on a tank he knew contained a flammable product. Ultramar contends that it had turned the work site over to Matrix, which had its own procedures in place. And as an experienced welder and foreman on the job, the decisions were within the control of the plaintiff himself. Schaffer points out that had Matrix followed its own permit procedure, the plaintiff would not have been doing what he was doing at the time of the accident. 

“It's not the product itself that's volatile, it's the fumes from the product that will ignite,” says Schaffer. “The tank was vented so that the fumes would go to the atmosphere so that problems with the pressure building up or the product exploding wouldn't occur unless there was an external ignition source such as the [torch].”
Ultramar had not been told that welding would be used to reattach the catwalk and had assumed that the catwalk had been removed the first time by cold-cutting.
“Had anyone been aware that it had been hot-cut, then that issue would've been discussed and warned,” adds Schaffer.
David Frishman, a senior associate at Schaffer & Lax and co-counsel for Ultramar, states that Leavitt was working on top of Tank 2 without any safety equipment and believes the cause of the explosion to be a lack of the welding blanket, a protective layer between the torch and the surface, which created a hot spot on the shell of the tank and caused combustion. “He did not follow welding procedures either by being cognizant of the product in the tank or by following other recognized procedures such as using a blanket to protect against what occurred,” says Frishman. Beck states that before the accident, there had been complaints from the workmen at the work site regarding odors. Although Ultramar investigated the complaints, Beck states that the searches made by Ultramar for the source of the vapors were inadequate and that the monitors that were used to detect dangerous gases were not properly calibrated and maintained.
“They failed to follow their own permit system, which required a job walk before issuance, to discuss work and methods,” adds Beck.

Attorneys for Leavitt also note that the kerosene-type product contained in tank 2 was stored at a high temperature which made it potentially more explosive than something stored at a lower temperature.
“Ultramar has all the data on the temperature of the products in the tanks computerized and recorded, minute by minute, so they knew it;” he says.
Counsel for Ultramar argue that there was no evidence that Ultramar's instruments were not properly calibrated.
“We believe that the instruments were properly calibrated and besides, plaintiffs used their own monitors to take atmospheric readings,” states Frishman. “The plaintiff, before he went up and did his welding, didn't take any atmospheric readings at all in the area he was welding and if you know there's product in the tank, as an experienced welder, experience would dictate that you take readings.”
Mark Geraghty, lead counsel for Jacobs Engineering, says that liability was hotly contested during settlement negotiations. “From our perspective, the issue was which of the parties, including the plaintiff, was responsible for complying with the various safety policies that [Ultramar and Matrix' imposed upon themselves,” Geraghty says.
Both Ultramar and Matrix had safety procedures in place and both had their own system of approving permits for work on-site. Although there were plans and permits for the work to be completed on Tank 4, apparently, there was no permit issued for the reattachment of the catwalk onto Tank 2 because it was not the specific tank that was being rebuilt.

Jacobs Engineering, which was included in the lawsuit for failing to exercise control over the safety aspects of the construction operations, contends that the responsibility for following safety policies rests with the plaintiff and the other defendants. Jacobs Engineering had a single employee, absent from the work site on the day of the explosion, assigned to the job. Geraghty states that this employee's task was to periodically inspect the work to make sure Tank 4 was being repaired consistent with the contract specifications, but that he did not have any responsibility for safety by contract. “If you read the contracts between the parties and the safety policies that both Matrix and Ultramar had, then you would conclude that responsibility for safe performance of the work rested with Matrix and Ultramar, and to some extent with Team Safety, but not with Jacobs,” says Geraghty. Viggo Boserup, the mediator credited by both sides as having brought the parties together during the three-day intensive mediation, comments that the multiplicity of parties, with everyone trying to minimize their exposure, made the mediation particularly difficult but that all parties worked hard to reach settlement. “All parties were also a lot closer in their positions than they each believed themselves to be and because all the parties came in good faith to the mediation, they were able to close the deal,” says Boserup.
“Everyone wants everyone else to believe they're willing to go to trial unless the other side is willing to accept a reasonable figure. And you have to be prepared to go to trial or the mediator will sniff that out,” says Beck. “[People] always say that the ideal settlement is one where everyone walks away dissatisfied.”