Judge dismisses suit against two electrocuted workers

Alawsuit filed by an oil and gas operator in Eddy County against two men who were electrocuted last year in an accident on the company’s well pad was dismissed by Eddy County District Judge Jane Schuler Gray earlier this month.

Nicholas Gerbich, 28, and Storm Hutchins, 24, were killed when a forklift they were using to move pipe at the job site collided with nearby power lines, fatally sending electricity into both of their bodies.

The tank battery the men were working at on March 4, 2020, was in Eddy County near the junction of South Country Road and U.S. Highway 285.

The incident led to the job site being closed during the ongoing investigation and COG Operating LLC sued the two men and the subcontractor they were employed by, RT Trucking, for damage to property.

But when the case was filed, neither of the deceased had a personal representative that could be served, Schuler Gray ruled, and the court had no jurisdiction on the matter.

She dismissed the case against the two men, but not against RT Trucking and Sunbelt Rentals, which provided the forklift, or Deans Inc., which installed the power lines.

Personal representatives were appointed by the families of the deceased after COG filed its suit to sue the company for the “wrongful death” of the men.

But Schuler Gray deemed those subsequent representatives could not be served retroactively after the personal death case was filed, nor could the deceased themselves.

“It is this court’s opinion that personal representatives appointed for the purpose of bringing the wrongful death suit are not the proper parties to be served in an action such as this,” said Schuler Gray’s decision.

“Even though family members and wrongful death personal representatives were personally served, such service on an individual who is not a proper party to this action does not serve to give this court jurisdiction over the deceased persons or their estates.

“And of course, a deceased individual cannot be made party to an action, so the naming of the two deceased herein is a nullity.”

In COG’s case, it alleged the men and the companies that employed them and owned the equipment were negligent in “inadequately” training the workers, providing “faulty” equipment that lacked warning labels, and “defectively” installed the power lines close to the work site, the suit said.

“Hutchins and Gerberich had a duty to use due care in the work that they performed on COG Operating’s property,” said COG’s suit. “The acts and omissions of Hutchins and Gerbich were the cause of the damages incurred by COG Operating, and judgment

should be awarded to COG Operating accordingly.”

Dick Blenden, an attorney representing the families of the deceased said the men were sent to the job site under hazardous conditions as it was rainy and wet at the scene, which could have conducted electricity.

He said the men were also not at fault for the location of the power lines adjacent to the tank battery.

Because burns were found on Gerbich’s feet and waist, Blenden argued he was receiving electrical current before the incident that killed both men when Hutchins tried to pull Gerbich out of the forklift.

“It was wet. He obviously started getting some electrical charge and started hollering or something,” Blenden said. “When he did, Hutchins grabbed him to pull him out and they both got killed.

“The company jumps in and sues both of the dead guys. There was nobody to serve, therefore the court had no jurisdiction over anybody.”

The wrongful death case filed against the company was ongoing in Santa Fe District Court, where the deceased’s personal representatives live, Blenden said.

Blenden said the trial in Santa Fe will include expert testimony showing the men’s deaths were due to negligence in the location of the powerlines and sending them to work in dangerous conditions.

“We think it’s ridiculous,” he said of COG’s case. “They’re trying to prejudice a jury by saying our guys were at fault. I’ve never seen anything like this.”

Roxanne Lara, another attorney for the deceased, said suing the dead men was “disrespectful” but that the judge’s ruling was based on the law and requirements for bringing such a suit that were unmet by COG.

“Them filing a lawsuit against them 18 days after their death was pretty disrespectful to their families,” she said. “But the dismissal came from the rule of law. The law has certain requirements as it’s clear that COG didn’t follow these.

“Sometimes the application of the law makes you think the right is being done. Sometimes it doesn’t. In this case, it did.”