Florida Record

Thursday, September 19, 2019

Arkema Inc. alleges breach of contract in suit involving fatality

By Shanice Harris | Feb 22, 2017

TAMPA — Arkema Inc., a chemical manufacturer with more than two dozen facilities in the United States, is accusing a Plant City corporation of breaching an agreement contact.

Arkema filed a complaint earlier this year in the Tampa Division of the Middle District of Florida against Bulk Resources Inc, according to a previous report by the Florida Record. The company alleged that the equipment company broke a transloading agreement and other counts of negligence.

According to court documents, the plaintiff alleged that in 2010 the company entered in a transloading agreement with the defendant. Bulk Resources was to safely transfer toxic materials from rail cars into tank trucks for delivery to the plaintiff’s customers at a Bulk Resources facility in New Orleans. However, the Occupational Safety and Health Administration issued a citation to the plaintiffs in the wake of injuries suffered by two employees and the death of a third of defendant affiliate Dedicated TCS LLC.

“Employees injured during the performance of their job must often seek compensation through workers’ compensation insurance rather than instituting a private lawsuit regarding the workplace injury,” Benjamin Briggs, attorney at Trent Cotney, P.A., told the Florida Record. “However, as with most areas of law, there are exceptions. I can only speculate as to the theor(ies) and claim(s) on which the plaintiffs base their action against Arkema Inc. However, there are circumstances under which employees may sue a third party for injuries suffered at work.”

Arkema blamed Bulk Resources for the tragedy because they allegedly failed to ensure training to all employees that were managing the dangerous chemicals and materials. They also failed to defend the plaintiff against legal complaints, did not procure insurance protecting the plaintiff, and failed to get consent from plaintiff to assign duties to a third party.

“As an initial matter, with relatively limited exceptions, Florida employers must obtain workers’ compensation insurance for their employees to cover workplace injuries,” Briggs said. “There are exceptions as to what injuries must be compensated through workers’ compensation insurance, but that does not relate to the employer’s responsibility to obtain and maintain workers’ compensation insurance. So, whoever constitutes the injured workers’ employer was likely required to maintain workers’ compensation insurance.”

Briggs explained that since the claim refers to “insurance protection,” though, it may go beyond or be in addition to any basic workers’ compensation insurance policy. In Arkema Inc.’s lawsuit, the company claimed that Bulk Resources was responsible for obtaining insurance. If that is true, it would be included in the transloading agreement. The approval of assigned duties would also be outlined in the agreement, Briggs said.

Companies often get into situations like this when a third party is involved.

“It is not uncommon for an initial lawsuit to result in a separate, but related, action to determine what party is responsible for the damages alleged in the initial, underlying lawsuit,” Briggs said. “Extensive litigation can revolve around insurance coverage or a party’s contractual obligations to defend or indemnify another party.”

The plaintiff has requested a trial by jury.

Trent Cotney, P.A., has five offices in Florida, including one in Tampa, according to the firm's website.

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Tampa Division of the Middle District of Florida