Preview
FILED
DALLAS COUNTY
5/7/2018 2:55 PM
FELICIA PITRE
DISTRICT CLERK
4-CIT ES
Marissa Pittman
CAUSE NO.DC-18-05978
ASHLEY HOLBERT, INDIVIDUALLY, § IN THE DISTRICT COURT
AND AS NEXT FRIEND OF K.H., A MINOR §
AND AS REPRESENTATIVE OF THE §
ESTATE OF ROWDY LEE HOLBERT, §
DECEASED AND DONNA HOLBERT §
§
Plaintiffs §
§ 101ST JUDICIAL DISTRICT
v. §
§
CRETIC ENERGY SERVICES, LLC; §
CATAPULT ENERGY SERVICES §
GROUP, LLC; NGP CAPITAL §
MANAGEMENT, LLC.; and SERVA §
CORPORATION §
§
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFFS’ ORIGINAL PETITION AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW the Plaintiffs, Ashley Holbert, Individually, as Next Friend of K.H., a Minor,
and as representative of the Estate of Rowdy Lee Holbert, Deceased; and Donna Holbert,
complaining of and against the following entities, which hereinafter may be referred to as
“Defendants” in this petition:
A. Cretic Energy Services, LLC (hereinafter referred to as “Cretic”);
B. Catapult Energy Services Group, LLC (hereinafter referred to as “Catapult”);
C. NGP Capital Management, LLC d/b/a Natural Gas Partners, NGP Energy Capital
Management, NGP Natural Resources, NGP Global Adaptation Partners, NGP Global
Agribusiness Partners (hereinafter referred to as “NGP”); and
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 1
D. Serva Corporation (hereinafter referred to as “Serva”).
1. Discovery Control Plan
1.01 Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Plaintiff states that discovery
in this cause is intended to be conducted under a Level 3 in accordance with Rule 190.4 of the Texas
Rules of Civil Procedure.
2. Parties
2.01 Plaintiff Ashley Holbert, Individually, as Next Friend of K.H., and as representative of the
Estate of Rowdy Lee Holbert, is an individual who resides in Hill County, Texas.
2.02 Plaintiff Donna Holbert is an individual who resides in Hill County, Texas.
2.03 Defendant, Cretic Energy Services, LLC, is a foreign limited liability company doing
business in Texas and may be served with process by serving its registered agent, Cretic Energy
Services, LLC, at 11633 Grandview Drive, Montgomery, Texas 77356.
2.04 Catapult Energy Services Group, LLC, is a foreign limited liability company doing business
in Texas and may be served with process by serving its registered agent, Cogency Global, Inc., 1601
Elm Street, Suite 4360, Dallas, Texas 75201.
2.05 NGP Capital Management, LLC, is a domestic limited liability company doing business in
Texas and may be served with process by serving its registered agent, Christopher D. Ray, 5221
North O’Connor Boulevard, Suite 1100, Irving, Texas 75039.
2.06 Serva Corporation, is a domestic corporation doing business in Texas and may be served with
process by serving its registered agent, CT Corporation System, 1500 Fisher Road, Wichita Falls,
Texas 76305.
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 2
3. Jurisdiction and Venue
3.01 This suit is brought in accordance with the laws of the State of Texas for the recovery of
damages which are in excess of the minimal jurisdictional limits of this Court, to which Plaintiffs
are entitled to receive compensation for the damages described below. Accordingly, the Court has
jurisdiction over this matter. Dallas County is the county of residence of at least one of the named
defendants herein. Accordingly, venue in this county is proper under TEX. CIV. PRAC. & REM. CODE
§15.002(2) and TEX. CIV. PRAC. & REM. CODE §15.005.
4. Monetary Relief
4.01 Plaintiffs are seeking monetary relief pursuant to Rule 47(c)(5) of the Texas Rules of Civil
Procedure. Pursuant to Rule 47(d), Plaintiffs also seek any and all such other and further relief to
which they may show themself entitled.
5. CPRC 30.014 Statement
5.01 Plaintiff Ashley Holbert provides the following information in compliance with TEX. CIV.
PRAC. & REM. CODE 30.014(a)(1) and (2), respectively 299, 686.
5.02 Plaintiff Donna Holbert provides the following information in compliance with TEX. CIV.
PRAC. & REM. CODE 30.014(a)(1) and (2), respectively 217, 763.
6. Facts
6.01 This wrongful death and survival lawsuit arises from a catastrophic failure of equipment and
operations at an oil field lease in Reagan County. At the time of his death on January 11, 2018,
Rowdy Lee Holbert, and employee of Big B Crane, was performing his job as a crane operator at
well site known as the Sugg-B 134 Lease. Defendant Cretic, which was contracted to provide coil
tubing equipment and services at the site, was supervising the erection of its “Cretic Commander”
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 3
extraction system. At Cretic’s direction, Holbert was raising a single-unit, hinge-mounted blow-out
preventer (“BOP”) and lubricator over a well head. As the equipment was being raised into
position, a section of steel pipe supporting the entire weight of the unit fractured, causing the BOP
and lubricator stack to rotate, detach from the crane hook, fall and crush the cab of the crane Holbert
was operating.
6.02 Holbert suffered severe traumatic injuries to his head and internal organs. He died while
being transported to the hospital.
7. Assumed Names, Agents and Employees
7.01 Pursuant to Rule 28 of the of the Texas Rules of Civil Procedure, Plaintiffs are suing any
partnership, unincorporated association, private corporation, or individual whose name contains the
words, or who does business under, the names of the Defendants.
7.02 Whenever alleged in this Petition that any non-natural Defendant did or failed to do any
act or thing, it is meant that such Defendant’s directors, officers, agents, servants, employees,
representatives and/or contractors subject to such Defendant’s control did or failed to do such act or
thing and that at the time such conduct occurred, it occurred with the authorization and/or ratification
of such Defendant and/or was done in the normal and routine course and scope of employment or
agency of such Defendant’s directors, officers, agents, servants, employees, representatives and/or
contractors subject to such Defendant’s control, making that Defendant responsible and liable for
all such conduct. Plaintiffs invoke the doctrine of respondeat superior.
7.03 Upon current information and belief, the Defendants named herein were engaged in a joint
enterprise or joint venture in the manufacturing, design, marketing, implementation and use of the
Cretic Commander equipment at issue, as well as compliance with contracted terms and state and
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 4
federal laws applicable to this project. Additionally and/or alternatively, they were managers, vice
principals, agents, mere tools, instrumentalities, departments, and/or alter egos of each other or of
one or another of them with regard to design, marketing, implementation and use of such equipment.
The Defendants are directly, vicariously, and/or jointly and/or severally liable for the conduct of one
another in such regard.
8. Causes of Action: Negligence
8.01 Plaintiffs would show that at the time of the incident at issue, the Defendants, by and through
their employees, agents, representatives, and/or vice principals, failed to exercise the reasonable care
that an ordinary prudent company would under the same or similar circumstances. In particular,
Plaintiffs would show that the Defendants were negligent by using and allowing the use of the
combined BOP and lubricator stack that lifted from a zero- to 90-degree position despite having
actual and/or constructive knowledge that the extreme weight exerted at the base of the unit while
lifting made it susceptible to sheering. Plaintiffs would show that other Cretic Commander units had
failed in similar fashion on previous occasions and that the Defendants had knowledge of such
failures. Moreover, upon information and belief, the steel pipe or riser supporting this particular
stack had, in fact, broken before at the exact location and had been welded by Cretic employees.
8.02 In addition to knowingly, intentionally, recklessly, and/or necessarily using and allowing the
use of unreasonably dangerous and defective equipment with a known defect, the Defendants were
negligent in at least the following ways:
a. improperly securing the unit to the base plate to prevent it from falling;
b. improperly welding the steel pipe at issue on previous occasions;
c. using equipment that had been compromised by breakage on previous occasions;
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 5
d. failing to properly secure the rigging;
e. failing to warn the decedent and other workers nearby of the risk and threat of the
unit breaking/falling;
f. failing to warn the decedent and others at the job site of previous failures;
g. failing to replace the equipment at issue after previous failures;
h. failing to take reasonable precautions to prevent the stack from falling;
i. Otherwise failing to use ordinary care to prevent injuries to the decedent and other
workers given their knowledge of the danger posed by raising and erecting the BOP
and lubricator at issue; and
j. failing to devise and implement policies and procedures for the safe construction and
erection of its coil tubing equipment.
8.03 Plaintiffs allege that Defendants Cretic, Catapult and NGP were agents and/or alter egos of
one another and/or were acting as a joint venture, each with knowledge, actual or constructive, of
the dangers at issue and design defect of the equipment and devices at issue.
8.04 The above-referenced negligent acts and omissions, as well as others, proximately caused the
incident at issue, the injuries and death of Rowdy Lee Holbert, and the Plaintiffs’ damages herein
described.
9. Causes of Action: Strict Liability
9.01 The Defendants were involved, as part of their business, in manufacturing, assembling,
leasing, selling, and/or otherwise placing into the course and stream of commerce the pre-assembled,
hinge-raised BOP and lubricator at issue at issue. Said equipment was marketed as a safe and
efficient means of avoiding the standard and cumbersome process of stacking the individual parts.
The Defendants had a duty to design, manufacture, and market the equipment at issue in a manner
that did not cause it to be unreasonably dangerous.
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 6
9.02 Defendants are strictly liable to the Plaintiffs for placing the defective Cretic Commander
equipment into the stream of commerce when it was unreasonably dangerous for the equipment’s
intended and foreseeable uses. The Cretic Commander equipment at issue was defectively designed,
manufactured and marketed by the Defendants. Technologically feasible safer, alternative designs
that did not impair the equipment’s utility were available but not utilized. Plaintiffs invoke the
doctrine of strict liability, Sections 402A and 402B, Restatement (Second) of Torts, as adopted by
the Texas Supreme Court.
9.03 The defects herein described were a producing cause of the occurrence at issue, Rowdy Lee
Holbert’s injuries and death, and the Plaintiffs’ damages set forth below.
10. Gross Negligence
10.01 When viewed objectively from the standpoint of the Defendants at the time, the negligent
conduct described herein involved an extreme degree of risk considering the probability and
magnitude of the potential harm. The Defendants had actual, subjective awareness of such risk, yet
nevertheless proceeded with conscious indifference to the rights, safety and welfare of Rowdy Lee
Holbert and other similarly situated. Such negligence constitutes gross negligence, entitling the
Plaintiffs to recover exemplary/punitive damages in a substantial amount to punish and deter such
conduct in the future.
11. Breach of Warranty
11.01 At all material times, Defendants represented and warranted, expressly and/or impliedly, as
follows:
a. that the Cretic Commander system was designed, manufactured, assembled, tested
and inspected in a good and workmanlike manner;
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 7
b. that the equipment at issue was fit for the ordinary purposes for which it was
marketed and used;
c. That the equipment at issue conformed to industry standards; and
d. That the equipment at issue was safe when erected in the manner intended.
11.02 The Defendants breached all or some of such warranties by the conducted described aboe.
Such breaches directly, foreseeably and proximately caused and produced the occurrence, injuries,
death and damages described herein.
12. Damages
12.01 Rowdy Lee Holbert was 30-years-old at the time of his death. During his lifetime, Holbert
was a loving, generous, affectionate, industrious, compassionate and attentive husband to Ashley
Holbert and father to K.H., the minor Plaintiff. Rowdy Holbert was, in addition, a beloved and
loving son of Donna Holbert.
12.02 Plaintiffs are entitled to bring this action pursuant to Title 4, Chapter 71, Subchapter A of the
Texas Civil Practices and Remedies Code (Texas’ Wrongful Death Statutue) and Title 4, Chapter
71, Subchapter B of the Texas Civil Practices and Remedies Code (Texas’ Survival Statute).
Defendants are liable to the Plaintiffs for the actual damages arising from the injuries which caused
Rowdy Lee Holbert’s death because such injuries were caused by the Defendants’ neglect,
carelessness, unskillfulness, or default, as described above. This action is brought for the benefit of
all beneficiaries of the estate of Rowdy Lee Holbert. No administration of estate is pending and none
is necessary.
12.03 As a direct, foreseeable and proximate cause of the Defendants’ negligence and injuries and
death suffered by Rowdy Holbert, the Plaintiffs have suffered and will continue to suffer damages
for which they are entitled to recover including, but not limited to, the loss of care, love,
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 8
maintenance, support, companionship, consortium, society, services, advice, counsel, and reasonable
contributions of a pecuniary value that they would have received from Rowdy Holbert had he lived.
In addition, the Plaintiffs are entitled to recover survival damages for the physical pain and mental
anguish that Rowdy Holbert would have been entitled to recover from the Defendants had he lived,
as well as reasonable and necessary medical/psychological expenses, funeral/burial costs, and loss
of future income.
12.04 The Plaintiffs reserve the right to prove the amount of damages at trial.
13. Jury Demand
13.01. Plaintiff hereby requests trial by jury and tenders the required fee.
14. Judgment Interest
To the Court Only:
14.01 Plaintiff is entitled to an award of pre-judgment interest as a matter of law upon such terms,
conditions, and rates as allowed by law, for which Plaintiff sues.
14.02 Plaintiff further requests that the Court take judicial notice of the rate of interest published
by the Texas Consumer Credit Commission in the Texas Register on the date of judgment in this
cause for purposes of calculating the rate of pre-judgment interest to be awarded to Plaintiff in this
case, or such other periods of time, and such other rate or rates of interest allowed by law for
determination of pre-judgment interest.
15. Request for Disclosure
15.01 Pursuant to Rule 194, Texas Rules of Civil Procedure, Defendants are requested to
Disclose to Plaintiffs, within fifty (50) days of service of this request, the information or material
described in Rule 194.2(a) through (l), to be produced at the office of Noteboom-The Law Firm, 669
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 9
Airport Freeway, Suite 100, Hurst, Texas 76053.
PRAYER
WHEREFORE, Plaintiffs respectfully requests that Defendants be duly cited to appear and
answer herein, and that, upon final trial of this cause, Plaintiffs recover judgment against the
Defendants for Plaintiffs’ damages; for costs of court; for pre-judgment and post-judgment interest,
as provided by law; and for such other further relief, both general and special, at law or in equity,
to which Plaintiffs may show themself justly entitled.
Respectfully submitted,
/s/ Brian W. Butcher
Charles M. Noteboom
State Bar No. 15116875
Brian W. Butcher
State Bar No. 24029928
Noteboom The Law Firm
669 Airport Freeway, Suite 100
Hurst, Texas 76053
butcher@noteboom.com
817.282.9700
817.282.8073 Fax
COUNSEL FOR PLAINTIFF
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 10
Preview
FILED DALLAS COUNTY 5/7/2018 2:55 PM FELICIA PITRE DISTRICT CLERK 4-CIT ES Marissa Pittman CAUSE NO.DC-18-05978 ASHLEY HOLBERT, INDIVIDUALLY, § IN THE DISTRICT COURT AND AS NEXT FRIEND OF K.H., A MINOR § AND AS REPRESENTATIVE OF THE § ESTATE OF ROWDY LEE HOLBERT, § DECEASED AND DONNA HOLBERT § § Plaintiffs § § 101ST JUDICIAL DISTRICT v. § § CRETIC ENERGY SERVICES, LLC; § CATAPULT ENERGY SERVICES § GROUP, LLC; NGP CAPITAL § MANAGEMENT, LLC.; and SERVA § CORPORATION § § Defendants. § DALLAS COUNTY, TEXAS PLAINTIFFS’ ORIGINAL PETITION AND REQUEST FOR DISCLOSURE TO THE HONORABLE JUDGE OF SAID COURT: COME NOW the Plaintiffs, Ashley Holbert, Individually, as Next Friend of K.H., a Minor, and as representative of the Estate of Rowdy Lee Holbert, Deceased; and Donna Holbert, complaining of and against the following entities, which hereinafter may be referred to as “Defendants” in this petition: A. Cretic Energy Services, LLC (hereinafter referred to as “Cretic”); B. Catapult Energy Services Group, LLC (hereinafter referred to as “Catapult”); C. NGP Capital Management, LLC d/b/a Natural Gas Partners, NGP Energy Capital Management, NGP Natural Resources, NGP Global Adaptation Partners, NGP Global Agribusiness Partners (hereinafter referred to as “NGP”); and PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 1 D. Serva Corporation (hereinafter referred to as “Serva”). 1. Discovery Control Plan 1.01 Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Plaintiff states that discovery in this cause is intended to be conducted under a Level 3 in accordance with Rule 190.4 of the Texas Rules of Civil Procedure. 2. Parties 2.01 Plaintiff Ashley Holbert, Individually, as Next Friend of K.H., and as representative of the Estate of Rowdy Lee Holbert, is an individual who resides in Hill County, Texas. 2.02 Plaintiff Donna Holbert is an individual who resides in Hill County, Texas. 2.03 Defendant, Cretic Energy Services, LLC, is a foreign limited liability company doing business in Texas and may be served with process by serving its registered agent, Cretic Energy Services, LLC, at 11633 Grandview Drive, Montgomery, Texas 77356. 2.04 Catapult Energy Services Group, LLC, is a foreign limited liability company doing business in Texas and may be served with process by serving its registered agent, Cogency Global, Inc., 1601 Elm Street, Suite 4360, Dallas, Texas 75201. 2.05 NGP Capital Management, LLC, is a domestic limited liability company doing business in Texas and may be served with process by serving its registered agent, Christopher D. Ray, 5221 North O’Connor Boulevard, Suite 1100, Irving, Texas 75039. 2.06 Serva Corporation, is a domestic corporation doing business in Texas and may be served with process by serving its registered agent, CT Corporation System, 1500 Fisher Road, Wichita Falls, Texas 76305. PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 2 3. Jurisdiction and Venue 3.01 This suit is brought in accordance with the laws of the State of Texas for the recovery of damages which are in excess of the minimal jurisdictional limits of this Court, to which Plaintiffs are entitled to receive compensation for the damages described below. Accordingly, the Court has jurisdiction over this matter. Dallas County is the county of residence of at least one of the named defendants herein. Accordingly, venue in this county is proper under TEX. CIV. PRAC. & REM. CODE §15.002(2) and TEX. CIV. PRAC. & REM. CODE §15.005. 4. Monetary Relief 4.01 Plaintiffs are seeking monetary relief pursuant to Rule 47(c)(5) of the Texas Rules of Civil Procedure. Pursuant to Rule 47(d), Plaintiffs also seek any and all such other and further relief to which they may show themself entitled. 5. CPRC 30.014 Statement 5.01 Plaintiff Ashley Holbert provides the following information in compliance with TEX. CIV. PRAC. & REM. CODE 30.014(a)(1) and (2), respectively 299, 686. 5.02 Plaintiff Donna Holbert provides the following information in compliance with TEX. CIV. PRAC. & REM. CODE 30.014(a)(1) and (2), respectively 217, 763. 6. Facts 6.01 This wrongful death and survival lawsuit arises from a catastrophic failure of equipment and operations at an oil field lease in Reagan County. At the time of his death on January 11, 2018, Rowdy Lee Holbert, and employee of Big B Crane, was performing his job as a crane operator at well site known as the Sugg-B 134 Lease. Defendant Cretic, which was contracted to provide coil tubing equipment and services at the site, was supervising the erection of its “Cretic Commander” PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 3 extraction system. At Cretic’s direction, Holbert was raising a single-unit, hinge-mounted blow-out preventer (“BOP”) and lubricator over a well head. As the equipment was being raised into position, a section of steel pipe supporting the entire weight of the unit fractured, causing the BOP and lubricator stack to rotate, detach from the crane hook, fall and crush the cab of the crane Holbert was operating. 6.02 Holbert suffered severe traumatic injuries to his head and internal organs. He died while being transported to the hospital. 7. Assumed Names, Agents and Employees 7.01 Pursuant to Rule 28 of the of the Texas Rules of Civil Procedure, Plaintiffs are suing any partnership, unincorporated association, private corporation, or individual whose name contains the words, or who does business under, the names of the Defendants. 7.02 Whenever alleged in this Petition that any non-natural Defendant did or failed to do any act or thing, it is meant that such Defendant’s directors, officers, agents, servants, employees, representatives and/or contractors subject to such Defendant’s control did or failed to do such act or thing and that at the time such conduct occurred, it occurred with the authorization and/or ratification of such Defendant and/or was done in the normal and routine course and scope of employment or agency of such Defendant’s directors, officers, agents, servants, employees, representatives and/or contractors subject to such Defendant’s control, making that Defendant responsible and liable for all such conduct. Plaintiffs invoke the doctrine of respondeat superior. 7.03 Upon current information and belief, the Defendants named herein were engaged in a joint enterprise or joint venture in the manufacturing, design, marketing, implementation and use of the Cretic Commander equipment at issue, as well as compliance with contracted terms and state and PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 4 federal laws applicable to this project. Additionally and/or alternatively, they were managers, vice principals, agents, mere tools, instrumentalities, departments, and/or alter egos of each other or of one or another of them with regard to design, marketing, implementation and use of such equipment. The Defendants are directly, vicariously, and/or jointly and/or severally liable for the conduct of one another in such regard. 8. Causes of Action: Negligence 8.01 Plaintiffs would show that at the time of the incident at issue, the Defendants, by and through their employees, agents, representatives, and/or vice principals, failed to exercise the reasonable care that an ordinary prudent company would under the same or similar circumstances. In particular, Plaintiffs would show that the Defendants were negligent by using and allowing the use of the combined BOP and lubricator stack that lifted from a zero- to 90-degree position despite having actual and/or constructive knowledge that the extreme weight exerted at the base of the unit while lifting made it susceptible to sheering. Plaintiffs would show that other Cretic Commander units had failed in similar fashion on previous occasions and that the Defendants had knowledge of such failures. Moreover, upon information and belief, the steel pipe or riser supporting this particular stack had, in fact, broken before at the exact location and had been welded by Cretic employees. 8.02 In addition to knowingly, intentionally, recklessly, and/or necessarily using and allowing the use of unreasonably dangerous and defective equipment with a known defect, the Defendants were negligent in at least the following ways: a. improperly securing the unit to the base plate to prevent it from falling; b. improperly welding the steel pipe at issue on previous occasions; c. using equipment that had been compromised by breakage on previous occasions; PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 5 d. failing to properly secure the rigging; e. failing to warn the decedent and other workers nearby of the risk and threat of the unit breaking/falling; f. failing to warn the decedent and others at the job site of previous failures; g. failing to replace the equipment at issue after previous failures; h. failing to take reasonable precautions to prevent the stack from falling; i. Otherwise failing to use ordinary care to prevent injuries to the decedent and other workers given their knowledge of the danger posed by raising and erecting the BOP and lubricator at issue; and j. failing to devise and implement policies and procedures for the safe construction and erection of its coil tubing equipment. 8.03 Plaintiffs allege that Defendants Cretic, Catapult and NGP were agents and/or alter egos of one another and/or were acting as a joint venture, each with knowledge, actual or constructive, of the dangers at issue and design defect of the equipment and devices at issue. 8.04 The above-referenced negligent acts and omissions, as well as others, proximately caused the incident at issue, the injuries and death of Rowdy Lee Holbert, and the Plaintiffs’ damages herein described. 9. Causes of Action: Strict Liability 9.01 The Defendants were involved, as part of their business, in manufacturing, assembling, leasing, selling, and/or otherwise placing into the course and stream of commerce the pre-assembled, hinge-raised BOP and lubricator at issue at issue. Said equipment was marketed as a safe and efficient means of avoiding the standard and cumbersome process of stacking the individual parts. The Defendants had a duty to design, manufacture, and market the equipment at issue in a manner that did not cause it to be unreasonably dangerous. PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 6 9.02 Defendants are strictly liable to the Plaintiffs for placing the defective Cretic Commander equipment into the stream of commerce when it was unreasonably dangerous for the equipment’s intended and foreseeable uses. The Cretic Commander equipment at issue was defectively designed, manufactured and marketed by the Defendants. Technologically feasible safer, alternative designs that did not impair the equipment’s utility were available but not utilized. Plaintiffs invoke the doctrine of strict liability, Sections 402A and 402B, Restatement (Second) of Torts, as adopted by the Texas Supreme Court. 9.03 The defects herein described were a producing cause of the occurrence at issue, Rowdy Lee Holbert’s injuries and death, and the Plaintiffs’ damages set forth below. 10. Gross Negligence 10.01 When viewed objectively from the standpoint of the Defendants at the time, the negligent conduct described herein involved an extreme degree of risk considering the probability and magnitude of the potential harm. The Defendants had actual, subjective awareness of such risk, yet nevertheless proceeded with conscious indifference to the rights, safety and welfare of Rowdy Lee Holbert and other similarly situated. Such negligence constitutes gross negligence, entitling the Plaintiffs to recover exemplary/punitive damages in a substantial amount to punish and deter such conduct in the future. 11. Breach of Warranty 11.01 At all material times, Defendants represented and warranted, expressly and/or impliedly, as follows: a. that the Cretic Commander system was designed, manufactured, assembled, tested and inspected in a good and workmanlike manner; PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 7 b. that the equipment at issue was fit for the ordinary purposes for which it was marketed and used; c. That the equipment at issue conformed to industry standards; and d. That the equipment at issue was safe when erected in the manner intended. 11.02 The Defendants breached all or some of such warranties by the conducted described aboe. Such breaches directly, foreseeably and proximately caused and produced the occurrence, injuries, death and damages described herein. 12. Damages 12.01 Rowdy Lee Holbert was 30-years-old at the time of his death. During his lifetime, Holbert was a loving, generous, affectionate, industrious, compassionate and attentive husband to Ashley Holbert and father to K.H., the minor Plaintiff. Rowdy Holbert was, in addition, a beloved and loving son of Donna Holbert. 12.02 Plaintiffs are entitled to bring this action pursuant to Title 4, Chapter 71, Subchapter A of the Texas Civil Practices and Remedies Code (Texas’ Wrongful Death Statutue) and Title 4, Chapter 71, Subchapter B of the Texas Civil Practices and Remedies Code (Texas’ Survival Statute). Defendants are liable to the Plaintiffs for the actual damages arising from the injuries which caused Rowdy Lee Holbert’s death because such injuries were caused by the Defendants’ neglect, carelessness, unskillfulness, or default, as described above. This action is brought for the benefit of all beneficiaries of the estate of Rowdy Lee Holbert. No administration of estate is pending and none is necessary. 12.03 As a direct, foreseeable and proximate cause of the Defendants’ negligence and injuries and death suffered by Rowdy Holbert, the Plaintiffs have suffered and will continue to suffer damages for which they are entitled to recover including, but not limited to, the loss of care, love, PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 8 maintenance, support, companionship, consortium, society, services, advice, counsel, and reasonable contributions of a pecuniary value that they would have received from Rowdy Holbert had he lived. In addition, the Plaintiffs are entitled to recover survival damages for the physical pain and mental anguish that Rowdy Holbert would have been entitled to recover from the Defendants had he lived, as well as reasonable and necessary medical/psychological expenses, funeral/burial costs, and loss of future income. 12.04 The Plaintiffs reserve the right to prove the amount of damages at trial. 13. Jury Demand 13.01. Plaintiff hereby requests trial by jury and tenders the required fee. 14. Judgment Interest To the Court Only: 14.01 Plaintiff is entitled to an award of pre-judgment interest as a matter of law upon such terms, conditions, and rates as allowed by law, for which Plaintiff sues. 14.02 Plaintiff further requests that the Court take judicial notice of the rate of interest published by the Texas Consumer Credit Commission in the Texas Register on the date of judgment in this cause for purposes of calculating the rate of pre-judgment interest to be awarded to Plaintiff in this case, or such other periods of time, and such other rate or rates of interest allowed by law for determination of pre-judgment interest. 15. Request for Disclosure 15.01 Pursuant to Rule 194, Texas Rules of Civil Procedure, Defendants are requested to Disclose to Plaintiffs, within fifty (50) days of service of this request, the information or material described in Rule 194.2(a) through (l), to be produced at the office of Noteboom-The Law Firm, 669 PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 9 Airport Freeway, Suite 100, Hurst, Texas 76053. PRAYER WHEREFORE, Plaintiffs respectfully requests that Defendants be duly cited to appear and answer herein, and that, upon final trial of this cause, Plaintiffs recover judgment against the Defendants for Plaintiffs’ damages; for costs of court; for pre-judgment and post-judgment interest, as provided by law; and for such other further relief, both general and special, at law or in equity, to which Plaintiffs may show themself justly entitled. Respectfully submitted, /s/ Brian W. Butcher Charles M. Noteboom State Bar No. 15116875 Brian W. Butcher State Bar No. 24029928 Noteboom The Law Firm 669 Airport Freeway, Suite 100 Hurst, Texas 76053 butcher@noteboom.com 817.282.9700 817.282.8073 Fax COUNSEL FOR PLAINTIFF PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE PAGE 10