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Ferguson v. Valero Energy Corp.

June 15, 2009

KENNETH L. FERGUSON, ET AL.
v.
VALERO ENERGY CORP., ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This is a wrongful death and survivorship action brought on behalf of a worker killed on November 5, 2005, at an accident at the Delaware City Refinery ("DCR"), now owned by defendant Valero Energy Corporation ("Valero"). The defendants have filed a motion for partial summary judgment as to the plaintiffs' claims for punitive damages. The Court will grant the defendants' motion.

I. Summary Judgment Record*fn1

This case concerns the death of John Jerry Ferguson, Jr., an experienced boilermaker. Mr. Ferguson was killed in an accident at DCR, near Wilmington, Delaware, on the night of November 5, 2005. Mr. Ferguson was twenty-nine years old. Mr. Ferguson was survived by two brothers, Kenneth and Michael Ferguson, and his father, John Jerry Ferguson, Sr. At the time of the accident, Mr. Ferguson was an employee of Matrix Services Industrial Contractors, Inc. ("Matrix").

The first plaintiff in this suit is Kenneth Ferguson, who brings claims under the Delaware Survivor's Act, 10 Del. Code § 3701, as administrator of his brother's estate and on behalf of any statutory beneficiaries. Am. Compl. ¶ 3. John Jerry Ferguson, Sr., is the other plaintiff in this action, bringing claims under the Delaware Wrongful Death Act, 10 Del. Code § 3724, in his own right and as the primary beneficiary under the statute. Am. Compl. ¶ 2. After this suit was filed, John Jerry Ferguson, Sr., passed away on April 22, 2006. As a component of these claims, the plaintiffs seek an award of punitive damages.*fn2

The defendants here are two companies that owned and operated the DCR: Valero and Premcor Refining Group, Inc. ("PRG"). PRG owns DCR; Valero merged with PRG on September 1, 2005, and therefore DCR is a Valero refinery. Defs' Br. at 2-3.

The plaintiffs claim that Delaware law entitles them to punitive damages because of the defendants' "admissions of intentional, willful, knowing, and consciously deliberate conduct." Opp'n at 3. The defendants assert that the record reflects only ordinary negligence, at most, and fails to provide facts sufficient to create a genuine issue of material fact as to intentional or reckless actions undertaken by the defendants in relation to the "precise harm" to the plaintiffs' decedent.

A. Safety Policies in Place during "Turnaround" of the Unit 36 Reactors

On November 5, 2005, Mr. Ferguson was working on a maintenance project involving at Unit 36-R-1. Unit 36-R-1 is one of three silo-shaped reactor vessels that are part of the "hydrocracker" unit at DCR. The other two reactor vessels are referred to as 36-R-2 and 36-R-3. The three reactors are arranged in line with each other, with a metal deck providing access to all three reactors. At the center of the Unit 36-R-1 reactor's deck is a manway entrance. When the reactor is in use, a large "L" shaped pipe (the "top elbow") is attached to both the top of the manway entrance and to a nearby pipe. When the reactor is shut down for maintenance, the top elbow is removed to permit entry into the reactor for maintenance purposes. Defs' Exs. 15-19; Def. Br. at 3-6.

In the fall of 2005, DCR underwent a "turnaround," which is the term used for the period of time when certain units of a refinery are out of service while workers perform maintenance work on the unit. PRG contracted with Matrix and Catalyst Handling Services ("Catalyst Handling"), among other companies, to perform certain portions of the maintenance work on the Unit 36 reactors. PRG also contracted with Allied Services, Inc. and ProTech Engingeering, Inc. ("ProTech") to coordinate the work of contractors like Matrix and Catalyst Handling. Defs' Exs. 26, 27. Andy Tedeschi, of Allied Services, and Bill Pyatt, of ProTech, were denominated by the defendants as "contract administrators" for Unit 36 and oversaw many aspects of the turnaround relating to Unit 36. Defs' Exs 28 at 14-17; 29 at 19-20.

DCR implemented a safety plan as part of the planning process for the turnaround. The safety plan is a document that includes specific safety expectations, including instructions on the issuance of work permits and confined space entry requirements. The plan provided that "mutual understanding is required for all jobs where permits are required." Defs' Ex. 32 at 3.

In addition to the safety plan, DCR issued "Bid Books" to contractors who wished to bid on the work for the different units at DCR. Defs' Ex. 33. The Bid Book for Unit 36 contains a list of tasks that a contractor would need to complete during the turnaround, detailed schematics of the reactor, and certain safety warnings. Among the safety warnings are two entries which read: "This reactor requires full PPE [Personal Protective Equipment] for inert entry" and "Do not enter this reactor without stand-by personnel/safety equipment/100% tie-off & correct monitoring." Id. at VAL07805.

Matrix received a copy of both the safety plan and the Bid Book for Unit 36. Opp'n at 6. The defendants convened two meetings in August of 2005 at which the scope of work for the reactors at Unit 36 was discussed. David Huppmann, the turnaround project manager for Matrix, and Dominic Gricco, a Matrix boilermaker general foreman, appear as "required attendees" on an email notification of those meetings. Defs' Ex. 35. David Huppman's deposition testimony recites that he does not recall attending those meeting. Defs' Ex. 37 at 96:6-22.*fn3

Another email discusses a presentation by Catalyst Handling regarding safety coordination. Dominic Gricco is again among the names of the required attendees. Defs' Ex. 38.

DCR provided shift schedules for the work at Unit 36-R-1, which identified the job steps for each of the hydrocracker reactors and noted which steps required the use of fresh air equipment. Defs' Ex. 39. The shift schedule for work at Unit 36-R-1 for the night of the accident states that "this reactor requires full PPE for inert entry." Id. at VAL05114. The plaintiffs note that several witnesses have testified at deposition that "Valero managers would often change the job step sequence or job requirements, just as they had changed the job step sequence on the night of the accident." Opp'n at 7. William Hunt, manager of technical services at DCR, testified that the job step sequence for the day of the accident was altered at a meeting held the day before the accident. Pls' Ex. 29 at 90:3-93:16. Andre Tedeschi, a turnaround planner at DCR, also testified to a schedule change for the job step sequence of the night of the accident. Pls' Ex. 9 at 98:19-99:2. Tedeschi further testified that work on the top elbow proceeded at times without fresh air barricades in place and without fresh air breathing apparatuses in place. Id. at 192. Mr. Tedeschi also testified, however, that he was not personally involved in the determination of which aspects of the turnaround should be designated as a "fresh air" job. Id. at 194:6-7.

In July of 2005, prior to Valero's takeover, DCR instituted revisions to a set of standing instructions and permit forms and conducted training of refinery operations personnel and contractors. Defs' Ex. 41 at VAL05284-05287. Standing instruction 2.5.12 contains DCR's Confined Space Written Program, in which reactors are listed among the examples of "confined spaces." Defs' Ex. 43 at VAL11719. The standing instructions state that "most confined spaces in the Delaware City Refinery will be classified as permit required confined spaces" and that such spaces contain or have the potential to contain a hazardous atmosphere. Id. The standing instructions further state that "entry into confined spaces shall only be allowed after consideration of an alternate method of performing the work from outside the space" and that "an entry permit must be prepared to document that the space is safe to enter" before any entry of a permit required confined space is authorized. Id. at VAL 11724.

The standing instructions require the development of a confined space pre-plan prior to entry into a confined space. Pre-plan meetings were to be held in order "to provide guidance to the permit issuer, the stand-by person(s) and the entrants regarding the planned scope of work and the expected hazards and safeguards." One result of the pre-plan meeting was to be a "written description of the planned permit required confined space entry to identify and eliminate any hazards and to communicate [such] information to all parties involved prior to the start of the work." Id. at VAL 11723.

A confined space pre-plan meeting report outlines the scope of maintenance for Unit 36-R-1. Defs' Ex. 44. This document includes a sketch of the reactor with notes on the dimensions of certain of its components. On a page dedicated to the catalyst dumping phase, the document contains a section titled "Atmospheric Monitoring Requirements," which lists nitrogen among a group of gases to be tested upon initial entry. The same notation is found on a page dedicated to the task of cleaning the reactor using a soda ash wash and catalyst loading. Id. During discovery, counsel for Matrix produced a copy of this same pre-plan report that was in its possession after the accident. Defs' Ex. 45.

DCR's standing instruction 2.5.1 governs the issuance of "safework, hot work and confined space entry permits." Defs' Ex. 47. The instruction describes the requirement of mutual understanding as a prerequisite to the issuance of a permit. As part of the mutual understanding requirement, a "signer and the foreman/craftsmen must review the permit and jointly visit the job site, and must completely understand the conditions, limitations and precautions of the issued permit." Id. at VAL04966 (emphasis in original).

Standing instruction 2.5.8 governs procedures for performing fresh air work. Defs' Ex. 46. The instruction states that "[w]ork activities in known or potentially IDLH (Immediately Dangerous to Life or Health) atmospheres require the use of air-supplied 'fresh air' respiratory protection equipment. These atmospheres could include . . . oxygen deficient atmospheres involving nitrogen . . . ." Id. at VAL 04392. The same instruction requires air-supplied respiratory protection zones to be "roped off at a sufficient distance from the source with red & white barrier tape imprinted with 'HAZARDOUS AREA KEEP OUT' to prevent unauthorized personnel from entering [the] area." Id. at VAL 04395. The instructions list "barricading or taping off area" as one of the responsibilities of the worker and/or contractor. Id. at VAL04397. A separate section lists the preparation of permits for a job as a responsibility of the operating personnel. Id. at VAL 04396.

Mutual understanding of safety requirements by both operations personnel and craftsmen or contractors was required under the standing instructions. Defs' Ex. 47 at VAL 04966. A written acknowledgment and mutual understanding agreement signed on October 16, 2005, provided for one DCR operator to issue a permit and another operator to perform the required job site visit under the mutual understanding policy. Defs' Ex. 48. The agreement also states that "when all parties have come to a mutual understanding regarding the permit requirements, work may then begin." Id.

As with the job step sequences discussed above, the parties offer competing evidence as to the fidelity with which these standing instructions were treated. Bill Hughes, the night shift project manager for the turnaround, testified that he attended nightly meetings to discuss safety. "[A]t some point in time, we had a discussion about whether or not this mutual understanding was taking place in the field, and at this safety meeting, which included folks from operations and the craft foreman and the contract administrators and also Valero safety people . . . we discussed the fact that it didn't look like mutual understanding was taking place in the field. . . ." Pls' Ex. 3 at 33:13-24. This testimony was offered in response to questioning by the plaintiffs concerning the enforcement of a policy under which a permit writer would personally need to perform the job site visit, a policy different from that contained in the written agreement concerning mutual understanding. See Defs' Ex. 48. Hughes also testified that "the permit writer was sitting at the desk and that [he was] having someone else visit the job site." Defs' Ex. C at 37:17-20.

Brian McCloskey, a nighttime safety superintendent, testified similarly. He stated that "[t]he issuer of the permit from the operation standpoint need[ed] to make sure that someone conduct[ed] that with the acknowledger of the permit and that the joint job site inspection [took] place." Pls' Ex. 12 at 81:1-5. He testified that the signer of a permit was not required by management to personally perform the related job site inspection. McCloskey further testified that he was unaware of any written permission from management allowing a person other than the signer of a permit to perform the job site inspection. However, he also stated that "the writer of the permit didn't have to [personally perform the job site inspection] as long as another operator familiar with the unit had the mutual understanding and did the joint job site inspection. . . . Nobody ever said that couldn't happen." Id. at 84:7-12.

Vince King, an operating area superintendent, testified that he was unaware of operators "intentionally and deliberately skip[ping] job site inspection" at the time of the turnaround. Pls' Ex. 18:7-16. William Whitaker, an operator on the hydrocracker unit, testified that permit writers "would generally . . . write the permit and then they'd hand it to the operator that was in charge of that certain area and then they [the operator] would go out." Pls' Ex. 17 at 93:11-14. Whitaker also agreed during his testimony that "permit writers at the time of this fatal accident were not allowed to go out and actually do a mutual understanding site inspection." Id. at 91:21-92:3.

David White, also an operator on the hydrocracker unit, testified concerning the use of "assigned permit writers" to fulfill mutual understanding. Defs' Ex. E at 27-39. He also agreed with plaintiffs' counsel that this procedure "save[d] time and personnel by skipping that otherwise mandatory [standing instruction] 2.5.1 job site visitation by the permit writer." Pls' Ex. 20 at 147:3-6. John Ward, a maintenance director, testified that he was unaware at the time of the accident that permit writers were not required to perform job site inspection. Defs' Ex. F at 325:16-19.

Prior to the turnaround, DCR conducted monthly audits of work permits. Defs' Ex. 52. Audits prepared for the months of February, March, April and May 2005 list the hydrocracker as one of the units achieving 100% compliance. Id. The audit prepared for August 2005 lists two problematic permits among those selected for auditing. A comment relating to the first of those two permits states: "equipment last contained not completed. Signature section not completed by operations. Operations closeout not complete." Id. at VAL08383. A comment relating to the second problematic permit states: "Job description not adequate for the job. Operations closeout not complete." Id. Comments relating to all other permits audited from the hydrocracker unit state either "Permit OK" or state that the contractor failed to sign the permit following the completion of the permitted task. Id. The hydrocracker unit was not included in the September 2005 audit, nor are audits provided from the months of the turnaround. Id.

All contractor employees working at DCR during the turnaround were required to complete the DCR contractor safety orientation. The defendants provide records demonstrating that John Ferguson attended this mandatory orientation. Defs' Ex. 54. Mr. Ferguson's signature appears on a document listing participants in a new employee training session on August 31, 2005. Id. at MATRIX 001966. The orientation included a warning regarding nitrogen as a "potential refinery hazard." Defs' Ex. 40 at VAL11712. Mr. Ferguson's signature also appears on a form acknowledging Mr. Ferguson's receipt of an employee safety handbook. Id. at MATRIX 001967.

DCR required that all contractors, including Mr. Ferguson's employer Matrix, follow the DCR contractor safety guidelines. Defs' Ex. 53. These guidelines state that contractors are required to ensure that "each employee is trained in the work practices necessary to safely perform his/her job." Id. at VAL04827. The guidelines further require that each contractor maintain a safety representative on site, who is responsible for all safety-related activities. Id. at VAL04832. ...


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