Guidry v. Frank Guidry Oil Co.

• Decision Date: 06 May 1991
• Docket Number: Nos. 91,s. 91
• Citation: 579 So.2d 947
• Parties: Mary GUIDRY, et al. v. FRANK GUIDRY OIL COMPANY, et al. C 0078, 91 C 0111.
• Court: Louisiana Supreme Court

Page 947

579 So.2d 947

Mary GUIDRY, et al. v. FRANK GUIDRY OIL COMPANY, et al.

Nos. 91 C 0078, 91 C 0111.

Supreme Court of Louisiana.

May 6, 1991.

Dissenting Opinion of Justice Hall May 13, 1991.

Jeffrey M. Bassett, Morrow, Morrow, Ryan & Bassett, Opelousas, for Mary Guidry, et al., plaintiff-applicant.

Gene S. Palmisano, New Orleans, for Exxon Corp. defendant-respondent.

D. Mark Bienvenu, Voohries & Labbe, Lafayette, for Frank Guidry Oil Co., defendant-respondent.

WATSON, Justice.

This tort suit concerns the death of a 26 year old worker in an explosive fire. Writs were granted to consider the apportionment of fault between the parties and the effect of comparative fault by an employer with tort immunity.

FACTS

On May 13, 1985, at approximately 5:00 a.m., Jessie James Guidry was standing in the bed of a pickup truck filling a 55 gallon drum with diesel fuel. An explosion occurred, which resulted in Guidry's death from burns several hours after the accident. This suit was brought by his widow, Mary Knott Guidry, individually and on behalf of their two minor sons, Yancy Joseph Guidry and Jade Michael Guidry, to recover damages for the loss of their husband and father. At the time of the fatal accident, Guidry was in the course and scope of his employment with Louisiana Swabbing, an oilfield service company. The employer and its insurer, Pacific Marine Insurance Company, intervened to recover the medical and funeral expenses and compensation benefits which had been paid. The diesel fuel had been supplied by Frank J. Guidry Oil Company, Inc., which is insured by Fireman's Fund Insurance Company. Guidry Oil is an exclusive distributor for Exxon Oil Corporation and carries the Exxon logo on its trucks.

Diesel fuel will not explode unless it is contaminated by gasoline. According to an Exxon advisory to its dealers:

While vapors in a gasoline tank are too rich to burn, and those in a diesel tank too lean to burn, a blend of gasoline and diesel fuel can produce vapor concentrations in the vehicle fuel tank that fall within the explosive range at normal ambient temperatures. Subsequent fueling with diesel fuel can build up static charge during the process and cause a spark that could violently ignite the vapors.

This phenomenon is essentially the same as that which has been experienced during 'switch loading' of tank trucks (i.e., loading a fuel product of different characteristics than that previously contained in the tank). For example, when a tank truck containing vapors from a previous load of gasoline is loaded with a distillate fuel such as No. 2 diesel fuel or kerosene, explosions and fires can occur, due to sparks produced by static electricity generated in the pumping and filtering system. Exhibit P-21.

It is undisputed that the diesel fuel which decedent had been pumping was contaminated with approximately five percent gasoline, making it explosive. The truck used by Guidry Oil to make its last delivery of diesel to Louisiana Swabbing had five compartments which were used interchangeably for gasoline and diesel. The tanks were drained when the product was changed. Prior to Louisiana Swabbing's last diesel delivery, the hose on Guidry Oil's truck had been used to deliver gasoline. The gasoline contamination of the diesel apparently resulted from Guidry Oil's custom of carrying diesel and gasoline interchangeably in the same tanks, using the same drop hose or line for deliveries.

The employees of Guidry Oil indicated little understanding of the danger involved in mixing diesel and gasoline. Green, the manager of the company, and Menard, the driver who made the last diesel delivery to Swabbing, were not aware that one percent of gasoline makes diesel flammable.

What caused ignition of the explosion was disputed at trial. There was evidence that either decedent or a co-worker may have been lighting a cigarette; evidence that no one was smoking; and evidence that the most probable cause of the fire was static electricity.

The pickup was on Louisiana Swabbing's wash rack next to an above ground diesel tank. When Guidry tried pumping the diesel, there was no flow of fluid. A co-worker, Girod, observed that the pickup truck's tire was resting on the hose. Girod moved the truck forward a couple of feet to free the hose and left the motor running. The explosion occurred about two seconds later. Girod was only a foot from the truck, but he was not hurt. The entire back end of the truck burned, as Guidry jumped out in flames.

Louisiana Swabbing's tool pusher, Melancon, had just driven his pickup next to the wash rack when the explosion occurred. The truck and Guidry were engulfed in flames, and Melancon saw Guidry jump out, running and screaming. Two other co-workers, Quibedeaux and Caillier, were also at the scene. All four co-workers testified that Guidry was not smoking immediately prior to the accident. They also said that none of them were smoking. By the time the flames were extinguished, only Guidry's undershorts remained on his charred body.

The only evidence that Guidry may have been smoking was given by Savoy, a horse trainer, who testified that he saw two men standing near a gas tank next to a pickup truck at Louisiana Swabbing around 4:45 a.m. Neither man was standing in the bed of the pickup. Although it was still dark, Savoy saw a red glow from a lighted cigarette held by a man wearing dark pants. Savoy went inside his barn, heard the explosion and came out to see that man on fire. According to the photographic evidence, Savoy was at least fifty yards from the site of the accident.

At one time, Louisiana Swabbing posted "no smoking" signs on its gas and diesel tanks but these were removed when the tanks were painted and had not been replaced.

Douglas Motty investigated the accident later that morning. The barrel which Guidry had been filling had the bottom blown out of it by the explosion, but the other barrel was relatively intact. Jessie Guidry's cigarettes and lighter, which he carried in his shirt pocket, were found on the ground behind the truck.

William B. Rawl, a staff technical advisor in the marketing department of Exxon, is responsible for Exxon's technical publications. Exxon publishes a manual for its distributors, which includes information on product precautions. On April 26, 1982, prior to this accident, Guidry Oil canceled its subscription to this free publication. Exxon Exhibit 4 is a "TECHNIGRAM" dated November 30, 1982, which states: "REMINDER: Never blend gasoline with diesel fuel. While vapors in a gasoline tank are too rich to burn, and those in a diesel tank too lean to burn, a blend of gasoline and diesel fuel can produce vapor concentrations that fall within the explosive range. These vapors may be violently ignited by sparks from static electricity generated during subsequent fueling with diesel fuel." Guidry Oil did not receive this warning, although its substance had been contained in earlier publications.

Dr. David L. Bernard, an expert in physics, admitted that diesel is not explosive without the addition of a flammable additive such as gasoline. He and John Kennedy, an expert in the cause of fires and explosions, thought the probable ignition source of this fire was a cigarette or a cigarette lighter.

Andrew T. Armstrong, an expert chemist specializing in the analysis of fire debris, testified that lighting a cigarette, static electricity or a running motor will not ignite pure diesel under any circumstances. Adding one or two percent gasoline to diesel will produce anything from a mild flash and burn to an explosion. Every drop of gasoline added to diesel lowers the flash point. If three to five percent gasoline is added to diesel, a cigarette is unlikely to cause an explosion. Sparks from a cigarette lighter might cause an explosion of gasoline contaminated diesel. Even on a humid day, pouring gasoline contaminated diesel into a drum can create static electricity. According to Armstrong, when the contaminated diesel went into the drum, the voltage buildup of static electricity was instantaneous.

The jury answered interrogatories, which found Guidry Oil 35 percent at fault, Jessie Guidry 45 percent at fault and Louisiana Swabbing 20 percent at fault. No fault was assigned to Exxon. The jury awarded $9,022 for medical and funeral expenses, $532,000 for loss of support and $526,000 in general damages, apportioned: $142,000 to Mary Guidry; $192,000 to Yancy Guidry; and $192,000 to Jade Guidry.

The trial court applied LSA-C.C. art. 2324 as it read at the time of this accident.

He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.

Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido; provided, however, when the amount of recovery has been reduced in accordance with the preceding article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of negligence has been attributed, reserving to all parties their respective rights of indemnity and contribution.

Because the jury found decedent's fault to be greater than the oil company's fault, the trial court did not add the fault of Louisiana Swabbing to that of Guidry Oil.

LSA-R.S. 23:1101(B), as amended, effective September 6, 1985, about four months after this accident, provides Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents. The recovery allowed herein shall be identical in percentage to the recovery of the employee or his dependents against the third person and, where the recovery of the employee is decreased as a result of comparative...