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Bergen v. Able Energy

February 2, 2009

JUNE BERGEN, PLAINTIFF-APPELLANT,
v.
ABLE ENERGY, INC., ABLE ENERGY PROPANE, L.L.C., ABLE OIL COMPANY, DEFENDANTS-RESPONDENTS, AND JOHN BAER, TIMOTHY HARRINGTON, CHRISTOPHER P. WESTAD, DEFENDANTS.
BRITTANY WILSON AND RICHARD WILSON, HER SPOUSE, PLAINTIFFS-APPELLANTS,
v.
ABLE ENERGY, INC., ABLE ENERGY PROPANE, L.L.C., ABLE OIL COMPANY, DEFENDANTS-RESPONDENTS, AND CHRISTOPHER P. WESTAD, JOHN BAER, TIMOTHY HARRINGTON, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Sussex County, L-106-05 and L-147-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2008

Before Judges Stern, A. A. Rodríguez and Payne.

In these consolidated appeals by plaintiffs June Bergen, Brittany Wilson and her husband Richard Wilson*fn1 from orders granting summary judgment in favor of defendants Able Energy, Inc., Able Energy Propane, L.L.C., and Able Oil Co. (collectively, Able) John Baer, Timothy Harrington, and Christopher Westad and denying reconsideration, the plaintiffs challenge the motion judge's conclusion that their tort claims, arising from a propane gas explosion at the workplace of June Bergen and Brittany Wilson, are barred by the exclusivity provisions of the Workers' Compensation Act, set forth in N.J.S.A. 34:15-8, and that the employer's conduct did not constitute an "intentional wrong." Plaintiffs argue additionally that defendants' motion for summary judgment was premature, since it was filed before the conclusion of the period for discovery, although heard after discovery had closed. We disagree with plaintiffs' arguments, and affirm.

I.

Discovery conducted in connection with this case, including answers to interrogatories and depositions by plaintiffs, and in an extensive investigation of the accident by the federal Occupational Health and Safety Administration (OSHA) provides the following factual background of this matter, which we view in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Both Wilson and Bergen were employees of Able Oil Company, working in the office of its facility in Newton, New Jersey.

Bergen worked as a dispatcher; Wilson worked at the time of the accident on accounts payable. On March 14, 2003, at approximately 5:00 p.m., during the course of an illegal truck-to-truck transfer of propane at the facility, the receiving "bobtail"*fn2 truck, driven by defendant Baer, pulled away without disconnecting the hoses between the two vehicles. As a result, the lines broke and a propane leak occurred, followed very shortly thereafter by massive explosions. Both plaintiffs claim physical and psychological injuries as the result of the explosion, which took place after the plaintiffs had left their employer's building but while they were fleeing.

As described by Wilson in her interrogatory answers:

Plaintiff had run from the building because she had heard and seen propane leaking from a broken hose, and because she had been told to run from the building. As a result of the incident . . . Plaintiff ran from the building, through the gates and across Diller Avenue, looking behind her several times as she ran. Plaintiff does not recall if she fell, if she twisted her body, or how she hurt herself.

Bergen stated in her interrogatory responses:

At approximately 5:00 p.m. on 3/14/03 I was in the back office when I heard a very loud hissing noise. Brittany Wilson who worked in the propane department was in the office also. Not knowing what the noise was, we looked at each other sensing something was wrong. Brittany went to the entrance and could see a large white cloud of propane.

Jeannie Pelt from customer service yelled "get out" several times. Brittany yelled to me "it's propane." Following behind Brittany we had run into the propane in the air to get out of the office building. It was coming into the office from an open side door. That door is where the transporter was parked and where the propane trucks refilled. I ran as fast as I could still behind Brittany. I remember being by a house that is just past Able's entrance when I heard the first explosion in a series of several explosions, which was followed by debris flying, trucks and vehicles were on fire and being torn apart, buildings were being blown into the air with papers flying everywhere. I remember ducking my head and covering my ears. I kept looking back as I ran. I could hardly breathe. I had to stop a couple of times to catch my breath. We ran and ran until we stopped on Newton/

Sparta Road just past the Quick Chek.

In depositions taken by OSHA following the event, both Timothy Harrington, the Chief Executive Officer of Able Energy, and Christopher P. Westad, its President, admitted that they were aware that transporter-to-bobtail transfers of liquid propane gas had been regularly occurring at the Newton facility since August 2000. The practice commenced because of the distances involved in driving bobtails to Able's fixed-tank facilities ...


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