Devera v. XTO Energy, Inc.
| Decision Date | 13 September 2019 |
| Docket Number | CV 18-59-BLG-TJC |
| Parties | MARY L. DEVERA, as Personal Representative of the Estate of Trent Vigus, deceased, Plaintiff, v. XTO ENERGY, INC., Defendants. |
| Court | U.S. District Court — District of Montana |
Plaintiff Mary Devera ("Devera"), as Personal Representative of the Estate of Trent Vigus, brings this action against XTO Energy, Inc. ("XTO Energy") seeking damages for the alleged wrongful death of Trent Vigus ("Trent"). Devera alleges Trent's death was caused by the negligence of XTO Energy in the management of its oil and gas operations. (Doc. 1 at ¶¶ 16, 18.) Devera seeks relief on behalf of Trent's son, Trent Vigus, Jr. ("Trent, Jr."), and Trent's wife, Emma Fischer ("Fischer"). (Doc. 1 at ¶¶ 19-21.)
Pending is XTO Energy's motion for summary judgment. (Doc. 28.) The motion is fully briefed and ripe for decision. Having considered the parties' arguments, and for the following reasons, the Court orders that XTO Energy's motion is DENIED.
XTO Energy is a wholly-owned subsidiary of Exxon Mobil Corporation that engages in the exploration, drilling, and production of crude oil and natural gas in the State of Montana. (Doc. 34 at ¶ ¶ 1-2.) Trent was employed by Nabors Wells Services, Co. and worked at XTO well sites in Richland County, Montana. (Doc. 34 at ¶¶ 3,4.) On July 9, 2010, Trent was discovered unresponsive at an XTO well site and was pronounced dead later that day. (Doc. 34 at ¶¶ 4, 5.)
On August 19, 2010, Trent's mother, Terrilyn Vigus ("Terrilyn"), applied to be appointed as personal representative of Trent's estate. (Doc. 34 at ¶ 6.) Terrilyn was the only heir or devisee listed on the application, and she stated she was unaware of any other individuals with a prior or equal right to appointment as personal representative. (Doc. 34 at ¶ 6.) She was appointed as personal representative later that month. (Doc. 34 at ¶ 8.)
An attorney representing Terrilyn in her role as personal representative investigated Trent's death and obtained various reports regarding the cause of his death. (Doc. 34 at ¶¶ 9-17.) A Richland County Sheriff's Office report identified the death as "a possible H2S [hydrogen sulfide] gas death," but it also noted that "the well was not suppose[d] to have H2S and no signs of H2S were showing up." (Id. at ¶ 10). An Emergency Medical Services ambulance report also stated the ambulance was "dispatched to rig for man exposed to H2S." (Id. at ¶ 13.) Theentire medical filed regarding the death was also obtained. The toxicology report indicated trace amounts of propane and n-butane (Id. at 14), although Devera points out the levels were lower than the reporting limit. Id. The coroner's file was also obtained, which contained an autopsy performed by Dr. Thomas Bennett, a pathologist. (Id. at 15-16.) The autopsy report stated that "[c]oncerns were initially over the possibility of hydrogen sulfide or methane exposure," but Dr. Bennett ultimately concluded that Trent's death was due to hypertensive cardiovascular disease. (Id. at 17.)
Terrilyn's attorney believed there was no viable cause of action against Nabors Wells Services, Co, and he advised Terrilyn he was closing his file. (Doc. 34 at ¶ 34.) Terrilyn subsequently closed the estate on July 12, 2011. (Doc. 34 at ¶ 18.)
Prior to his death, Trent lived with Fischer, and the couple held themselves out to be married at common law. (Doc. 34-1 at ¶ 2.) Fischer was five months pregnant with the couple's child, Trent Jr., when Trent died. (Doc. 34 at ¶ 24.) Following Trent's death, a representative from the Sheriff's Department in Sidney, Montana advised Fischer that Trent died of a heart attack. (Doc. 34-1 at ¶ 4.) After Fischer gave birth to Trent, Jr., Fischer submitted Trent's death certificate to the hospital, which stated Trent died of heart disease. (Doc. 34 at ¶ 31.)
Fischer had no contact with the Vigus family between 2011 and 2017. (Doc. 34-1 at ¶ 9.) She did not receive notice of Terrilyn's appointment as personal representative of Trent's estate, and was unaware of the status of Trent's estate until 2017. (Doc. 34 at ¶ 33; Doc. 34-1 at ¶ 10.)
While she served as Trent's personal representative and for several years after, Terrilyn did not believe Trent Jr. was Trent's biological son. (Doc. 34-1 at ¶¶ 9,12.) In October 2017, however, Trent's paternity was established, and Fischer had her first contact with the Vigus family after Trent's death. (Doc. 34-1 at ¶¶ 15-16.)
In 2013, an occupational medicine physician contacted the Occupational Safety and Health Administration ("OSHA") regarding the deaths of two oil workers who died opening hatches on oil tanks. (Doc. 34 at ¶ 35.) The physician suspected that the deaths were caused by exposure to concentrated hydrocarbon gas vapors and insufficient oxygen after opening hatches of hydrocarbon storage tanks at frac wells. Id. The National Institute of Occupational Safety and Health investigated the matter and concluded nine deaths between 2010-2015 were related to hydrocarbon gas vapors from tank hatches on frac wells. (Doc. 34 at ¶ 35.) The United States Center for Disease Control published a report on these deaths, including Trent's, in Federal Morbidity and Mortality Weekly Report on January 15, 2016. (Doc. 34-22.)
Fischer contends she did not believe she had a basis for a lawsuit until 2015 when her mother (Devera) was contacted by a reporter researching the oilfield deaths. (Doc. 34 at ¶ 36; Doc. 34-1 at ¶ 13.) The reporter told Devera OSHA was investigating oil field deaths which occurred under similar circumstances to Trent's death. (Doc. 34 at ¶ 36.) Prior to speaking with the reporter, neither Devera nor Fischer claim to have had any reason to suspect Trent's death was caused by something other than heart disease. (Doc. 34-1 at ¶ 13; Doc. 34-2 at ¶ 3.)
In April 2015, Terrilyn filed a motion to reopen Trent's estate for a potential wrongful death claim, and the Montana Seventh Judicial District Court, Dawson County granted the motion. (Doc. 34 at ¶¶ 19-20.) Devera and her husband became Co-Guardians of Trent Jr. on June 22, 2017, and in November 2017, Terrilyn withdrew as personal representative and the court appointed Devera as successor. (Doc. 34 at ¶¶ 21, 22, 34.) Devera thereafter filed this action on December 21, 2017.
On August 31, 2018, XTO Energy filed a motion for summary judgment, arguing Devera's claim is barred by the three-year statute of limitations for wrongful death claims. (See generally, Doc. 29.) Devera responds that the statute of limitations has been tolled due to Trent Jr.'s minority and because of Montana's discovery rule. (See generally, Doc. 33.)
A court will grant summary judgment if the movant can show "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. Anderson, 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id.
The moving party has the initial burden to submit evidence demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its initial responsibility, the burden shifts to the nonmoving party to establish a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party must "go beyond the pleadings and by 'the depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
Montana law provides for two distinct causes of action for a death caused by the negligent act or omission of another - survivorship and wrongful death. Survival actions derive from Mont. Code Ann. § 27-1-501 and provide for therecovery of damages for the injury to the decedent. The action belongs to the decedent's estate, and "the damages recoverable in the action are personal to the decedent and the estate's right of recovery is identical to the decedent's had he or she lived." Payne v. Eight Judicial Dist. Court, 60 P.3d 469, 472. (Mont 2002).
Wrongful death actions are provided by Mont. Code Ann. § 27-1-513. Unlike survival claims, a cause of action for wrongful death "is created and vests in the heirs of the decedent." Swanson v. Champion Intern. Corp., 646 P.2d 1166, 1170 (Mont. 1982). "Wrongful death actions are personal to the decedent's heirs and independent of any cause of action available to the decedent's estate." Payne, 60 P.3d at 472.
Prior to 1987, Section 27-1-513 provided that a wrongful death claim could be maintained by either the decedent' heirs or by the personal representative of his or her estate. In 1987, however, the Montana legislature amended this section, which now reads:
When injuries to and the death of one person are caused by the wrongful act or neglect of another, the personal representative of the decedent's estate may maintain an action for damages against the person causing the death or, if such person be employed by another person who is responsible for his conduct, then also against such other person. (Emphasis added).
By this amendment, the Montana Legislature sought to prevent multiple lawsuits and duplicative recovery. Renville v. Fredrickson, 101 P.3d 773, 778 (Mont. 2004). As a result of the amendment, Section 27-1-513 has now "beeninterpreted to mean that only one wrongful death action arising out of an adult's wrongful death may be brought and the decedent's personal representative is the only person who may bring such an action." Id. at 777. (Emphasis in original.)
A wrongful death action accrues...
To continue reading
Request your trial