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Devera v. XTO Energy, Inc.

United States District Court, D. Montana, Billings Division

September 13, 2019

MARY L. DEVERA, as Personal Representative of the Estate of Trent Vigus, deceased, Plaintiff,
v.
XTO ENERGY, INC., Defendants.

          ORDER

          TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Mary Devera (“Devera”), as Personal Representative of the Estate of Trent Vigus, brings this action against XTO Energy, Inc. (“XTO Energy”) seeking damages for the alleged wrongful death of Trent Vigus (“Trent”). Devera alleges Trent's death was caused by the negligence of XTO Energy in the management of its oil and gas operations. (Doc. 1 at ¶¶ 16, 18.) Devera seeks relief on behalf of Trent's son, Trent Vigus, Jr. (“Trent, Jr.”), and Trent's wife, Emma Fischer (“Fischer”). (Doc. 1 at ¶¶ 19-21.)

         Pending is XTO Energy's motion for summary judgment. (Doc. 28.) The motion is fully briefed and ripe for decision. Having considered the parties' arguments, and for the following reasons, the Court orders that XTO Energy's motion is DENIED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         XTO Energy is a wholly-owned subsidiary of Exxon Mobil Corporation that engages in the exploration, drilling, and production of crude oil and natural gas in the State of Montana. (Doc. 34 at ¶ ¶ 1-2.) Trent was employed by Nabors Wells Services, Co. and worked at XTO well sites in Richland County, Montana. (Doc. 34 at ¶¶ 3, 4.) On July 9, 2010, Trent was discovered unresponsive at an XTO well site and was pronounced dead later that day. (Doc. 34 at ¶¶ 4, 5.)

         On August 19, 2010, Trent's mother, Terrilyn Vigus (“Terrilyn”), applied to be appointed as personal representative of Trent's estate. (Doc. 34 at ¶ 6.) Terrilyn was the only heir or devisee listed on the application, and she stated she was unaware of any other individuals with a prior or equal right to appointment as personal representative. (Doc. 34 at ¶ 6.) She was appointed as personal representative later that month. (Doc. 34 at ¶ 8.)

         An attorney representing Terrilyn in her role as personal representative investigated Trent's death and obtained various reports regarding the cause of his death. (Doc. 34 at ¶¶ 9-17.) A Richland County Sheriff's Office report identified the death as “a possible H2S [hydrogen sulfide] gas death, ” but it also noted that “the well was not suppose[d] to have H2S and no signs of H2S were showing up.” (Id. at ¶ 10). An Emergency Medical Services ambulance report also stated the ambulance was “dispatched to rig for man exposed to H2S.” (Id. at ¶ 13.) The entire medical filed regarding the death was also obtained. The toxicology report indicated trace amounts of propane and n-butane (Id. at 14), although Devera points out the levels were lower than the reporting limit. Id. The coroner's file was also obtained, which contained an autopsy performed by Dr. Thomas Bennett, a pathologist. (Id. at 15-16.) The autopsy report stated that “[c]oncerns were initially over the possibility of hydrogen sulfide or methane exposure, ” but Dr. Bennett ultimately concluded that Trent's death was due to hypertensive cardiovascular disease. (Id. at 17.)

         Terrilyn's attorney believed there was no viable cause of action against Nabors Wells Services, Co, and he advised Terrilyn he was closing his file. (Doc. 34 at ¶ 34.) Terrilyn subsequently closed the estate on July 12, 2011. (Doc. 34 at ¶ 18.)

         Prior to his death, Trent lived with Fischer, and the couple held themselves out to be married at common law. (Doc. 34-1 at ¶ 2.) Fischer was five months pregnant with the couple's child, Trent Jr., when Trent died. (Doc. 34 at ¶ 24.) Following Trent's death, a representative from the Sheriff's Department in Sidney, Montana advised Fischer that Trent died of a heart attack. (Doc. 34-1 at ¶ 4.) After Fischer gave birth to Trent, Jr., Fischer submitted Trent's death certificate to the hospital, which stated Trent died of heart disease. (Doc. 34 at ¶ 31.)

         Fischer had no contact with the Vigus family between 2011 and 2017. (Doc. 34-1 at ¶ 9.) She did not receive notice of Terrilyn's appointment as personal representative of Trent's estate, and was unaware of the status of Trent's estate until 2017. (Doc. 34 at ¶ 33; Doc. 34-1 at ¶ 10.)

         While she served as Trent's personal representative and for several years after, Terrilyn did not believe Trent Jr. was Trent's biological son. (Doc. 34-1 at ¶¶ 9, 12.) In October 2017, however, Trent's paternity was established, and Fischer had her first contact with the Vigus family after Trent's death. (Doc. 34-1 at ¶¶ 15-16.)

         In 2013, an occupational medicine physician contacted the Occupational Safety and Health Administration (“OSHA”) regarding the deaths of two oil workers who died opening hatches on oil tanks. (Doc. 34 at ¶ 35.) The physician suspected that the deaths were caused by exposure to concentrated hydrocarbon gas vapors and insufficient oxygen after opening hatches of hydrocarbon storage tanks at frac wells. Id. The National Institute of Occupational Safety and Health investigated the matter and concluded nine deaths between 2010-2015 were related to hydrocarbon gas vapors from tank hatches on frac wells. (Doc. 34 at ¶ 35.) The United States Center for Disease Control published a report on these deaths, including Trent's, in Federal Morbidity and Mortality Weekly Report on January 15, 2016. (Doc. 34-22.)

         Fischer contends she did not believe she had a basis for a lawsuit until 2015 when her mother (Devera) was contacted by a reporter researching the oilfield deaths. (Doc. 34 at ¶ 36; Doc. 34-1 at ¶ 13.) The reporter told Devera OSHA was investigating oil field deaths which occurred under similar circumstances to Trent's death. (Doc. 34 at ¶ 36.) Prior to speaking with the reporter, neither Devera nor Fischer claim to have had any reason to suspect Trent's death was caused by something other than heart disease. (Doc. 34-1 at ¶ 13; Doc. 34-2 at ¶ 3.)

         In April 2015, Terrilyn filed a motion to reopen Trent's estate for a potential wrongful death claim, and the Montana Seventh Judicial District Court, Dawson County granted the motion. (Doc. 34 at ¶¶ 19-20.) Devera and her husband became Co-Guardians of Trent Jr. on June 22, 2017, and in November 2017, Terrilyn withdrew as personal representative and the court appointed Devera ...


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