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Stamford, Conn.-based Tosco has settled what could have been a multimillion-dollar lawsuit filed by relatives of one employee who was killed and another worker who was seriously injured in a explosion at Tosco’s Martinez, Calif. refinery two years ago. In 1999, employees accidentally cut into a pipe filled with flammable fluid. The settlement was reached with Steven Duncan, who was severely injured, and the family of Ernest Pofahl, who was killed. Joining in the initial suit were workers John Moylan and Greg Lisle, who say they suffered emotional distress. Neither Tosco nor the plaintiffs’ attorney would disclose the amount of the settlement. Ernest Pofahl’s family and Steven Duncan, who were direct Tosco employees, sought settlements on par with more than $21 million that the refinery had previously agreed to pay victims who were contract workers. Earlier this month, several co-defendants who were sued along with Tosco agreed to pay the four plaintiffs $2.1 million. The lead plaintiffs’ attorney, J. Gary Gwilliam of Oakland, Calif.’s Gwilliam, Ivary Chiosso, Cavalli & Brewer, merely said he was “very pleased” with the Tosco settlement. Duncan and Pofahl’s family will be able to collect workers’ compensation in addition to the settlement award, he added. Tosco attorney John Lyons could not be reached for comment. Mary Jen Beach, a spokeswoman for Phillips Petroleum Co. — which bought Tosco and assumed responsibility for pending suits — said that while the company has publicized settlements in the past, “the decision was reached during the course of settlement negotiations that it would be in the best interests of the parties for it to remain confidential.” In Duncan v. Tosco, C00-00179, Gwilliam argued that Tosco’s actions on the day of the accident and poor safety record amounted to criminal conduct. Employers are not shielded from worker injury lawsuits under those circumstances, he argued. Also, the suit said it was unfair that contract workers got millions from Tosco while direct employees with similar claims would get an average of $480 per week in workers’ compensation. This month, Contra Costa County Superior Court Judge James Trembath wrote a tentative ruling that offered some victories and defeats for both sides. Tosco’s safety problems probably don’t constitute a crime, the judge wrote, but the refinery may have falsely imprisoned Duncan and Pofahl when plant officials delayed Contra Costa firefighters who were dispatched to help in-house rescuers with the victims. Trembath also wrote that he would probably grant a motion to dismiss some of the workers’ claims against Tosco co-defendant, Waste Management Industrial Services Inc. Before Trembath made a final ruling, Tosco and the plaintiffs’ attorneys finalized a settlement for Duncan and Pofahl’s family late last week, Gwilliam said. Although those two litigants settled, Gwilliam will push forward with the emotional distress claims for plaintiffs Moylan and Lisle, whose claims were substantially weakened by the tentative ruling. The lawyer plans to appeal once Trembath’s ruling is final. The lawyer also plans to appeal the Waste Management decision on behalf of all four plaintiffs, he said.

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