By Melissa Blankenship
After two weeks of testimony, a Henry County jury awarded the widow of Michael Guse over $6 million in damages stemming from his death in June 2008 following the explosion of a propane tank at his workplace.
Guse, who was a plant manager at CA Garner Veneer, was badly burned by the explosion and died six days later. His widow, Rebecca Guse, consequently filed a lawsuit in 2009 against several parties, including CA Garner Veneer and Southern States Cooperative, Inc., the supplier of the propane tank. All other parties settled out of court, but Southern States chose to defend itself in the civil case.
Guse’s attorney Neal Herrington, of Hargadon, Lenihan & Herrington of Louisville, argued that Southern States was responsible for Guse’s death because the company failed to follow what he called “the four rules of propane suppliers,” concerning responsiveness to emergencies, knowledge of who their customers are and where all their cylinders are located, proper and consistent warning labels on their cylinders and recertifying or updating out-of-date cylinders.
“Had they followed their own rules, Mike Guse wouldn’t have died that day and we wouldn’t be here today,” Herrington told the jury in his closing argument Friday. “We proved their responsibility, but they don’t want to take accountability. They chose money over safety.”
When the veneer plant ran out of propane, Southern States was called for a refill. It was after-hours, though and the order could not be filled. Faced with losing two days of work due to the outage, another plant manager, Rick DeBurger, was called and Guse and DeBurger moved a 100-pound propane cylinder from DeBurger’s home to the veneer plant, loading the tank into the back of a pickup truck. Harrington’s defense included the assumption that the valve on the cylinder was damaged or altered in some way during its transportation, leading to a leaking valve and the ensuing explosion.
Herrington’s argument was if Southern States had responded to the call, the cylinder would not have been moved. Further, if Southern States had kept records of their customers and cylinders, they would have known that the cylinder in question was out-of-date and exchanged it with a cylinder with a collared valve that would have prevented the leak. He also said Southern States did not use proper and consistent warning labels on their products, especially one that cautioned customers against transporting tanks in anything other than an upright position. Lastly, Herrington asserted that recertification of the older cylinder would have led to it being fitted with a collared valve.
“If they had done what they were supposed to do, this would never have happened,” Herrington said. “Their four failures on their own rules was not only a substantial factor, in my opinion it is the culprit of this whole thing happening.”
The attorneys for Southern States, however, argued that other parties were ultimately responsible for the explosion that led to Guse’s death.
“We do not dispute the tragedy that has occurred in this case. We do not dispute that Mrs. Guse has suffered a great loss, but who caused Mr. Guse’s death? Who is responsible?” asked Suzanne Shaffer of Embry Merritt Shaffer Womack, PLLC of Lexington, in her closing arguments.
Shaffer argued that other parties involved were responsible, including CA Garner Veneer, Rick DeBurger and Guse, himself.
“Who caused Mr. Guse’s death?,” Shaffer said. “You will find that CA Garner Veneer caused Mr. Guse’s death by failing to warn him about the dangers of propane. Mr. DeBurger by transporting the cylinder improperly, and that Mr. Guse caused his own death by disregarding his own safety.”
Shaffer countered Herrington’s arguments with her client’s position on each matter. She said the emergency call was not made, nor would it have prevented what happened to Guse had it been made. She also claimed that the plaintiff’s attorneys were blurring the lines between the recertification of a tank with its being up-to-date, stating “it’s not like milk…it doesn’t go bad.” Shaffer also said Southern States had provided ample warnings through labels, pamphlets and on the back of every invoice that required a signature from DeBurger or another representative from CA Garner Veneer each time it was delivered.
“Southern States can provide materials and warnings labels, but it’s not our job to train Veneer’s employees, that was Deburger’s job,” Shaffer said. “That cylinder should not have been laying down in the bed of a pickup truck. DeBurger said he broke the connection and moved the cylinder without Southern States’ permission. Guse received the same information about propane, yet he wrapped his hand with his shirt and walked toward a cylinder spewing liquid propane.
“I understand that two days of work would have been missed [without getting additional propane],” Shaffer said. “But two days of work is not worth a man’s life. All he had to do was walk away and we wouldn’t be sitting here today.”
Ultimately, the jurors were asked to determine whether or not Southern States exercised “ordinary care” as a supplier of propane as it related to responding to its emergency phone line, maintaining customer files and ensuring tanks were collected from the field if not used within one year.
Further, they had to decide if it was the duty of Guse to exercise ordinary care for his own safety and the safety of others, and if his failure to do so was a substantial factor in his own death, and if it was the duty of CA Garner Veneer and their employees to exercise ordinary care in the operation of its business and if the failure to perform those duties caused or brought about death of Michael Guse.
Judge Karen Conrad instructed the jury to determine what percentage of total fault was attributable to each of the parties, Southern States, Michael Guse and CA Garner Veneer and/or its employees.
At stake was over $10 million dollars requested by Rebecca Guse in the form of her husband’s lost wage earnings potential, his pain and suffering, the loss of her husband and punitive damages.
“Compensation means that enormous harm requires enormous money,” Herrington said of his client’s loss. “What we’ve asked for is not unreasonable.”
Regarding the maximum of $5 million in punitive damages, Herrington asserted that the conduct of Southern States was “so repetitive and egregious to the community” that they need to be shown that they “just can’t do this anymore.”
“They need to be punished and the only way to punish a big corporation like Southern States is to hit them in the bottom line,” Herrington said. “Make them feel like they have to straighten up or they’ll be paying out like this again.
“They didn’t do what they were supposed to do,” Herrington said regarding the amount of money requested for punitive damage. “Anything less will not send a message to Richmond, Va. (headquarters of Southern States).”
The jury found that Southern States carried 40 percent of responsibility for the accident, while Guse himself was 25 percent responsible and CA Garner Veneer or its employees were 35 percent to blame. For their part, Southern States will be required to pay Rebecca Guse $6.18 million, a sum her attorney told the jury was not unreasonable.
“When you are out in your community and people ask you, ‘Why’d you’d give that woman all that money?’ “ Herrington concluded. “You tell them because it was the right thing to do.”
When contacted for their response to the jury’s decision, the corporate offices of Southern States Cooperative, Inc. said it was their policy not to comment on litigation.