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Injured Worker Brought Tort Claim Against Employer for Exposure to Toxic Fly Ash

November 28, 2012

In a recent decision issued by the Supreme Court of Oklahoma, a power plant worker overcame his employer’s motion to dismiss based upon the exclusivity remedy under the Workers’ Compensation Act. Specifically, in Jordan v. Western Farmers Cooperative, 2012 OK 94 (2012), the Court granted plaintiff David Jordan (“Jordan”) the judicial go ahead to pursue a toxic tort claim against his employer, Western Farmers Electric Cooperative (“Western”).

In so doing, the Court ultimately held that Jordan’s petition sufficiently pled a claim under the intentional tort/substantial certainty exception to the otherwise exclusive jurisdiction of the Workers' Compensation Court.

According to Jordan’s initial complaint filed back in 2010, Western formerly disposed of fly ash - a common byproduct of its coal combustion operations - in ponds designated to store the toxic substance. However, back in 2009, Western began to spread the fly ash in various areas located throughout its facility, unnecessarily exposing its employees to hazardous materials. As a result, Jordan suffered from severe pain, impairment and the inability to work as a result of his employer’s improper disposal method.

In response to Jordan’s allegations, Western asserted that his complaint failed to sufficiently plead that he was intentionally exposed to toxic fly ash. Otherwise stated, Western alleged that Jordan did not meet his burden of overcoming the exclusivity provisions under Oklahoma’s workers’ compensation law. Akin to most states, Oklahoma requires employees to demonstrate that his or her employer acted with knowledge that an injury was substantially certain to occur before they can recover on an intentional tort theory. Without such a demonstration, an employee’s only remedy is to seek compensation under the State’s workers’ compensation laws.

Relying upon dispositive case precedent, the Supreme Court found Western’s arguments to be completely unavailing. The Court noted that Jordan had a viable tort claim on the basis that Western, in failing to properly dispose of its fly ash, knew with a substantial certainty that serious death or injury would result. According to the court “[i]f all of [Jordan’s] allegations are taken as true, a trier of fact could reasonably infer that Western disposed of the fly ash in ponds due to its toxicity and was aware of the potential for injury.” While the court recognized that claiming “intent” does not automatically create a colorable claim, Jordan sufficiently established that his employer’s actions gave rise to such an inference. Under the totality of facts, the Court ultimately reversed the lower court’s motion to dismiss and remanded the case with instructions.

The law varies from state to state on these issues- so the outcome would be different in other jurisdictions.

At Montlick and Associates, Attorneys at Law, our experienced Georgia personal injury attorneys know first-hand that no amount of money can truly compensate you for the pain and other consequences associated with your injuries. When clients hire us, we use our knowledge and nearly 30 years of dedicated legal experience to fight for your rights to receive the maximum amount of compensation possible.

Our Georgia toxic tort attorneys proudly service clients located throughout all of Georgia and the Southeast. Regardless of where you are located, our attorneys are just a phone call away, and will even come to you if you are unable to visit our law office. Our attorneys are also available by phone 24 hours a day/7 days a week. Contact Montlick & Associates, Attorneys at Law, now for your Free Confidential Consultation at 1-800-LAW-NEED (1-800-529-6333). You can also visit us online at and use our Free Case Evaluation Form or 24-hour Live Online Chat.

Category: Personal Injury

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All information provided by our blogs is general in nature and should not be relied upon as legal advice. Consult a Montlick attorney for details about your unique situation.