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Moylan v. Tosco Operating Co.10/18/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiffs John Moylan and Greg Lisle, employees at Tosco (Tosco) Corporation's Avon refinery, sued Tosco for infliction of emotional distress after witnessing co-workers die in a fire. Tosco's motion for summary judgment was properly granted because the claims were barred by the Workers' Compensation Act.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs were present on February 23, 1999, when an explosion at the Tosco refinery caused a fire to engulf a fractionator tower, killing four workers and seriously injuring a fifth. Moylan was about 25 to 30 yards away in the control room. Lisle, was a quarter mile away at a cooling tower, but responded to the scene. Undisputed facts establish that the fire occurred after Tosco employees were directed to attempt repairs on a pipe carrying highly flammable naptha from the fractionator. These efforts were made without first shutting down the unit or properly draining the pipe.
CalOSHA, Contra Costa Health Services (County Health Services) and the U.S. Chemical Safety and Hazard Investigation Board (Chemical Safety Board) conducted a joint investigation. Each issued a report, detailing an extensive list of management and operational deficiencies that culminated in the explosion and fire. County Health Services reported: "(1) n February 23rd, the [naptha] piping was not properly prepared according to Tosco written safety procedures: workers did not, but should have drained, depressured, cleaned and positively isolated the piping before work started, and (2) on February 23rd, workers and a supervisor did not exercise stop-work authority while unsafe work was in progress." The Chemical Safety Board "found problems with job planning, hazard identification and evaluation, unit shutdown decision making, management oversight, permitting and line breaking, corrosion control and mechanical integrity, and management of change."
Tosco moved for summary judgment on the ground that the Workers' Compensation Act provided an exclusive remedy. Plaintiffs responded that there were triable issues concerning whether Tosco's conduct constituted second degree murder and violated public policy, thus placing their causes of action outside the Act's exclusivity provision. The trial court issued a tentative ruling, granting summary judgment: "The alleged acts of defendant in deliberately failing to maintain a safe workplace are within the compensation bargain. There is no evidence that defendant used violence or coercion to force plaintiffs to continue working at the refinery. The underlying conduct of defendant was the maintenance of dangerous conditions, which is not a violent or coercive act and is a normal part of the employment relationship. Characterizing defendant's conduct as a violent crime such as murder does not transform the underlying conduct into a violent or coercive act or change conduct that is a normal part of the employment relationship into conduct that is outside the compensation bargain. The claim that defendant violated safety regulations and internal policies does not show a violation of public policy sufficient to take this case outside Workers Compensation scheme, since such regulatory crimes are within its scope. Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 723, fn.7."
The court denied plaintiffs' motion for a new trial, brought on the same legal ground, and
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