Minnesota Federal Court Dismisses Challenge to Railroad Tariff Without Prejudice Under Doctrine of Primary Jurisdiction
Posted on Jun 3, 2014
On May 27, 2014, the U.S. District Court for the District of Minnesota dismissed a case brought by manufacturers of toxic inhalation hazard (“TIH”) commodities and their trade associations that challenged a railroad’s amended tariff under the Hazardous Materials Transportation Act and 49 U.S.C. § 11101, which codifies the common-carrier obligations of railroads. The tariff at issue took effect on April 14, 2014 and requires that any tank car containing TIH commodities offered to the railroad for transport be constructed of normalized steel. Plaintiffs argued that the U.S. Department of...
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Pennsylvania To Determine If Workers’ Compensation Insurer Can Sue Alleged Tortfeasor Even If Injured Worker Does Not Sue In His Own Right
Posted on Jun 2, 2014
The Pennsylvania Supreme Court decided last week that it would resolve the question of whether the state’s Workers’ Compensation Act allows an employer/insurer to step into the insured employee’s shoes to subrogate against a tortfeasor. In the case, a workers’ compensation insurer paid out $33,929 in workers’ compensation benefits to an employee of an insured employer following the worker falling in a parking lot at another business’s site. The insurer designated itself a subrogee of the employee and sued the other business alleging that negligence in maintaining the property caused the...
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Texas Federal Court Finds Insurers Have No Duty To Defend Underlying Worker Death Case But May Have Duty To Indemnify
Posted on Jun 2, 2014
Two insurers filed a declaratory judgment in Texas federal court to determine whether they had a duty to defend and indemnify certain parties in an underlying Texas state court action in which a deceased worker’s family alleged that the parties were responsible for the worker’s death. The worker was involved in the installation of a city’s sewer lines when he allegedly was instructed to open a manhole, climb inside it, and remove a plug. According to the complaint, however, when he removed the plug, “toxic fumes were released and [the worker] died from asphyxia due to methane gas...
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Second Circuit Orders New Trial in Asbestos Removal Case
Posted on Jun 1, 2014
Asbestos removal can be a messy business. Federal statutes such as the Clean Air Act, Toxic Substances Control Act, and Occupational Safety and Health Act, as well as numerous state regulations, create a significant guidance regime that must be complied with to remove discovered asbestos. For example, OSHA regulations require employers to provide employees performing asbestos abatement work with respirators and “the use of protective clothing, such as coveralls or similar whole-body clothing, head coverings, gloves, and foot coverings,” and ensure that they enter and exit the contaminated...
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California Court Prevents Wrongful Death Suit Against Co-Worker (a Washington Truck Driver) From Proceeding
Posted on May 30, 2014
The U.S. District Court for the Eastern District of California granted summary judgment to a Washington truck driver in a wrongful death action under the California Labor Code for allegedly causing an accident in California in which the individual in the passenger seat was killed. The court found that both the defendant driver and the deceased passenger were employees of the Washington trucking company and that as a result, the decedent’s estate’s claims could be remedied exclusively by Washington’s workers’ compensation scheme. Because the defendant driver was acting in the course of his...
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Fifth Circuit Affirms Dismissal of Product Liability Case Against Propane Heater Manufacturer
Posted on May 30, 2014
The Fifth Circuit affirmed the dismissal of a Louisiana products liability case alleging that defects in a propane heater caused the death of the plaintiff’s husband. The plaintiff’s expert opined that a propane leak was the most probable cause of the damaging fire and explained that there were five potential areas for fault in the heater that could have caused such a leak. Despite his opinion, the expert conceded in deposition that there was no evidence to suggest the heater itself was defective and that he could not rule out other potential sources of a leak such as a faulty propane...
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Mine Safety & Health Review Commission Upholds Two Determinations That Lifeline Requirement Violations Were Significant and Substantial
Posted on May 29, 2014
In two comparable cases, the Federal Mine Safety and Health Review Commission upheld ALJ determinations that lifeline requirement violations in secondary escapeways of the Federal Mine Safety and Health Act were significant and substantial. In the first case, an MSHA inspection revealed that a lifeline in a secondary escapeway was inaccessible for 110 feet because it was seven to twelve feet above the mine floor. In the second case, an MSHA inspection revealed a lifeline in a secondary escapeway was missing for 20 feet in a busy intersection. In both cases, the mining company challenged...
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