Noco Energy Corp., hit with a lawsuit in October from a Wilson family whose house was destroyed in a propane explosion, is hitting back.
The company has filed a countersuit in State Supreme Court in Niagara County accusing Jody Johnson, whose daughter died in the July 24 blast, of causing the explosion.
The suit says that Johnson disconnected his Noco propane tank after smelling gas in his home July 23 and filled a 100-pound tank he had on his property with propane he bought at a store on the Tuscarora Indian Reservation.
Johnson then connected that tank to his home’s heating system, and at about 6 a.m. the next day, his house was obliterated in a fiery explosion.
Sarah Johnson, 14, was killed. Her sister Katie, 19, suffered severe burns and was hospitalized for seven weeks. Both parents, Jody, 45, and Judith, 46, and their son Nathan, 16, suffered less serious injuries.
“The allegations against Jody Johnson are denied,” the family’s attorney, Matthew J. Beck, wrote in an email to The Buffalo News last week.
“These allegations ignore that Mr. Johnson never would have hooked up a temporary tank if Noco had issued a warning or properly treated the situation as an emergency upon the Johnsons’ report of a smell of gas in the house, rather than treating the circumstances as a mere empty tank situation. Noco is simply attempting to deflect blame for this horrific incident,” said Beck, of the Buffalo law firm Duke Holzman Photiadis & Gresens.
The Johnsons sued Noco on Oct. 26, demanding damages to be determined at trial for the explosion. But their lawsuit acknowledged that the Noco propane tank had been disconnected before the explosion by Jody Johnson, a professional pipe fitter for Parise Mechanical in the Town of Tonawanda.
Noco’s countersuit seeks to place the blame for the explosion on Jody Johnson and perhaps on Jay’s Place II, a store on Walmore Road on the Tuscarora Reservation where Johnson filled the 100-pound propane tank on the evening of July 23.
Its owner, Jay Clause, did not return calls seeking comment last week, but Noco’s attorney, Terrance P. Flynn of the Harris Beach law firm, said he has been told by Clause’s insurer, Kinsale Insurance of Richmond, Va., that it intends to retain a lawyer.
Flynn, a former U.S. attorney for the Western District of New York, said Noco is not trying to recover any damages itself from the Johnsons or Jay’s Place.
“It is our position that liability lies with Mr. Johnson and Jay’s Place,” Flynn said.
The Johnsons’ insurer, USAA, hired attorney William J. Kita of Buffalo to represent the Johnsons against Noco’s countersuit.
Flynn said there could be an issue with a non-Indian company suing a business on an Indian reservation. However, he declined to discuss the issue, saying that question crossed the line into his legal strategy.
Besides the dispute over the Johnsons’ actions, the litigation will focus on the telephone exchanges between Judith Johnson and a Noco customer service representative on the afternoon of July 23.
The Johnsons’ original lawsuit contends that Judith Johnson called to say she smelled gas and that the Noco representative allegedly told her that it was just the odorant added to natural gas, which has no smell of its own.
The Noco person allegedly said that the propane level in the tank was low and that this was why Johnson was smelling the odorant.
The countersuit by Noco doesn’t talk about that. Instead, it asserts that the Johnsons refused to allow someone to come out and inspect their propane tank that night.
“If the plaintiffs sustained any of the injuries and damages as alleged in their complaint, through any negligence or fault other than [their] own, it is because Jody Johnson’s negligence was the direct, actual and proximate cause of the plaintiffs’ alleged accident and resulting injuries,” the countersuit says.
It may be quite a while before all this is hashed out in court. State Supreme Court Justice Ralph A. Boniello III set a pretrial schedule last week, calling for all depositions to be completed by Aug. 13.
Physical examinations of the plaintiffs must be done by Oct. 13, and all sharing of documents and other evidence must be completed by the end of the year, perhaps leading to a trial in 2014.