Marketer dismissed from fire case under immunity law

Author: michael_d_beckwith / photo on flickr

Under the state’s propane retailer immunity statute, a Missouri trial court in April dismissed a propane retailer from a lawsuit stemming from a propane-fueled flash fire that injured the plaintiff.

MFA Oil Co. set a 120-gallon propane tank at the motorhome of Thomas Cochran in October 2013. The tank serviced two furnaces inside the motorhome. A year later, Cochran was having a problem with one of his furnaces and contacted Schaefer & Ross LLC, dba Shoemaker’s RV Park, to perform service on it.

On Oct. 21, a Shoemaker’s employee came to the Cochran motorhome to work on the furnace. He turned off the tank valve, disconnected the gas line from the furnace and removed the inside components of the furnace. When he left for the day, he had not completed his work, and he did not cap the gas line that he had disconnected.

Cochran returned home sometime after the Shoemaker’s employee had left. He noticed the gas was off, went to the tank and turned it back on. He went inside to wait for his hot water heater to warm up. Gas escaped from the uncapped line and a flash fire ensued, injuring Cochran.

MFA Oil did not receive written notice, nor did it have knowledge that work was being done on the system at the Cochran home before the incident.

Plaintiffs sued under a variety of legal claims. MFA Oil asserted as an affirmative defense that it was entitled to statutory immunity under Missouri Statute Section 323.060.4. Plaintiffs failed to file what is known as a response to the affirmative defense, which sets forth a basis to avoid the effect of the affirmative defense. MFA Oil sought summary dismissal of the lawsuit based on the immunity statute.

In general, the immunity statute protects retail propane companies in Missouri from all potential damages for any installation, modification, repair or servicing of equipment and appliances using propane. That is, unless the retailer has written notice or actual knowledge of these actions and failed to inspect the system within 30 days of receiving notice.

Plaintiffs argued that the statute did not apply to motorhomes. But the court concluded the plain language of the statute did not limit its application to any specific type of structure and did not specifically exclude motorhomes.

Plaintiffs also claimed the statute did not apply under application of subsection 7 of the statute. This subsection exempts people from the statute who only sell propane containers of 50 pounds or less capacity filled by other people who are registered under the statute. This would mean cylinder resellers. The court rejected this argument, finding that MFA Oil sold and filled containers in excess of 50 pounds.

The court determined that MFA Oil met the requirements of the immunity statute, entitling it to its protections. It was a registered propane company in Missouri. It was engaged in the sale of propane at the retail level. The incident was caused by gas escaping from an uncapped line at the Cochran home, and this was a modification of the gas system. MFA Oil did not receive written notice, nor did it have knowledge of the modification prior to the incident.

There is an exception to the immunity protections afforded by this statute if the plaintiff pleads an avoidance with facts of gross negligence. Here, plaintiffs never pled an avoidance of gross negligence to the affirmative defense of the immunity statute set out in MFA Oil’s answer. Given this, the court found that this potential bar to summary judgment was not available to plaintiffs to avoid granting summary judgment to MFA Oil. The court entered an order granting MFA Oil summary judgment on all points and holding that there was no just reason for delaying the order and judgment. This made it final and appealable immediately. We will monitor the case.

This case highlights the value of a well-crafted propane immunity statute when the right facts present themselves. This outcome appears on its face to be just. It eliminates a propane company from a case in which it had no hand. It also points out the need to understand the procedural framework of affirmative defenses and claims of avoidance.

John V. McCoy is with McCoy Leavitt Laskey LLC, and his firm represents industry members nationally. He can be reached at 262-522-7007 or jmccoy@MLLlaw.com.