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Tosco Corp. will pay $21 million to settle wrongful death lawsuits brought by the families of three men killed in a refinery fire at the Avon facility near Martinez, Calif., last year, attorneys involved in the case announced Thursday. While Tosco maintained it never would have been liable for punitive damages, the attorneys representing the families said the sum arrived at in the settlement can be interpreted as a concession. “For all of these plaintiffs, the settlement represents a premium paid by Tosco in recognition of the very real probability that if we went to trial, they would have been hit with punitive damages,” said Stan Casper, a partner with Walnut Creek, Calif.’s Casper, Meadows & Schwartz who represented the Enriquez family. But John Lyons, a partner with Los Angeles’ Latham & Watkins who represented Tosco in the settlement, maintains that Tosco was not liable for punitive damages. He said the fire was an accident caused by lower-level employees who did not follow protocol. “There is no question that the cause of this fire was employees who were doing something they shouldn’t have been doing,” he said, adding that the refinery had always admitted liability in the deaths. But plaintiffs’ attorneys insist that Tosco management was culpable in the accident. They say the company laid off employees, causing unsafe workloads and delays in inspections. “This is a company that put the almighty dollar above everything, including safety,” said Michael Danko of Menlo Park, Calif.’s O’Reilly, Collins & Danko, who represented the Rodacker family. The plaintiffs’ attorneys — Danko, Casper and Peter Hinton of Hinton & Alfert in Walnut Creek — said they might have pursued the issue of punitive liability except that their clients could have faced an additional three to four years winding through the trial and appellate courts. The widow and parents of Rollin Blue and the widow and children of Thomas Rodacker will each receive $9 million. The parents of Rick Enriquez will collect $3 million. The men were contract workers who had been making repairs on the refinery’s crude processing tower in February 1999 when it ignited. The settlement brings to a close three wrongful death suits filed against Tosco following the fire, which was caused when highly volatile naphtha spurted from a valve in the tower and ignited where the crew of men were working. But this is hardly the end of Tosco’s legal troubles. State workers’ compensation law bars suits against employers — so Earnest Pofahl, a Tosco employee killed in the fire, and Steve Duncan, another Tosco worker who was permanently injured, did not take part in this round of settlements. But they are in the midst of a separate civil action — brought by J. Gary Gwilliam of Oakland, Calif.’s Gwilliam, Ivary, Chiosso, Cavalli & Brewer — that is trying to work around the state workers’ comp rule, in part by naming Tosco Corp.’s affiliate — Tosco Refining Co. — as the defendant. Still another complaint brought by a worker alleging he suffered major and disabling psychological injury as he witnessed the accident involving his co-workers remains to be settled or tried. In August 1999, state worker safety regulators slapped Tosco with a record-setting fine topping $800,000. And in January, the refinery agreed to pay about $2 million in fines and contributions to an area health clinic after the Contra Costa County district attorney’s office charged the company on five criminal misdemeanor counts.

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