Preview
Filed: 11/6/2017 9:11 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 20517520
By: Rolande Kain
CAUSE NO. 17-CV-1242 11/6/2017 9:45 AM
BLANCHARD REFINING COMPANY § IN THE DISTRICT COURT
LLC and MARATHON PETROLEUM §
COMPANY, LP §
§ 212th JUDICIAL DISTRICT
V. §
§
INDUSTRIAL SPECIALISTS, LLC § GALVESTON COUNTY, TEXAS
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S
ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant Industrial Specialists, LLC (“Defendant” or “ISI”) in the
above-entitled and numbered cause and files this Original Answer, Affirmative Defenses and
Counterclaim and, in support thereof, would respectfully show the Court as follows:
I.
GENERAL DENIAL
1. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant ISI
generally denies each and every, all and singular, the assertions alleged in Plaintiff’s Original
Petition and requests that Plaintiff be required to prove the charges and allegations against
Defendant by a preponderance of the evidence and/or by clear and convincing evidence, as
required by the Constitution and the laws of the State of Texas.
II.
AFFIRMATIVE DEFENSES
2. ISI affirmatively states it is a subscriber under Texas Workers’ Compensation
laws and that the fifteen injured ISI employees in No. 16-MDL-0000; In Re: Blanchard
Refining Galveston Bay Refinery FCCU3 Fire Litigation (the “Underlying Lawsuit”) at all
relevant times were covered by workers’ compensation insurance and that Plaintiffs’ breach
of contract claim as it relates to sums paid to settle the claims of ISI’s employees are barred
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 1
by Texas Workers’ Compensation laws, including Section 417.004 of the Texas Labor Code,
which provides in relevant part, that “in an action for damages brought by an injured employee
… against a third party,” the “employer is not liable to the third party for the reimbursement
or damages … unless the employer executed, before the injury or death occurred, a written
agreement with the third party to assume the liability.”
3. ISI affirmatively alleges that the contractual indemnity provision that is the basis
of Plaintiffs’ alleged claims is unenforceable as written because, inter alia, it fails to meet the
“fair notice,” ”conspicuousness” and “express negligence” doctrines as required by Texas law.
4. Plaintiff may not recast its contractual indemnity claim as a claim for damages
under the Major Service Contract’s safety provisions; Plaintiffs in the Underlying Litigation
did not sue Plaintiffs for ISI’s violations of any safety provision, they sued Plaintiffs for what
Plaintiffs did or failed to do asserting that ISI failed to fulfill any oral or written contractual
obligations are precluded by the teachings of Fisk Elec. Co. v. Constructors & Assocs., 888
S.W.2d 813 (Tex. 1994), Amerisure Mut. Ins. Co. v. American Home Assur. Co., Civil Action
No. 4:07–cv–01760; 2008 WL8053468 (S.D. Tex. Aug. 4, 2008) and Gilbane Bldg. Co. v.
Keystone Structural Concrete, Ltd., 263 S.W.3d 291 (Tex. App.—Houston [1st Dist.] 2007,
no pet.).
4. ISI affirmatively alleges that Plaintiffs fail to state a claim upon which relief can
be granted.
5. ISI affirmatively alleges that Plaintiffs’ claims are barred, in whole or in part,
by the defense of unclean hands.
6. ISI affirmatively alleges that Plaintiffs’ claims are barred, in whole or in part,
by the defense of waiver.
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 2
7. ISI affirmatively alleges that Plaintiffs’ claims are barred, in whole or in part,
by their failure to mitigate damages.
8. ISI affirmatively alleges that it did not engage in any wrongful or negligent
conduct, or breach of any common law or contractual obligation owing to Plaintiffs.
9. ISI affirmatively alleges that its conduct was not an actual, sole, proximate,
producing, direct or indirect cause of any loss alleged by Plaintiffs.
10. ISI affirmatively alleges that Plaintiffs’ claims are barred in whole or in part by
the doctrines of comparative negligence, contributory negligence.
11. ISI affirmatively alleges that that Plaintiffs’ recovery, if any, should be reduced
by the comparative negligence, fault, responsibility, or causation attributable to Plaintiff and/or
Plaintiff’s Next Friend. TEX. CIV. PRAC. &REM. CODE § 33.001 et seq. In the event
Plaintiffs’ responsibility exceeds 50 percent, Plaintiff is not entitled to any recovery.
COUNTERCLAIMS
DISCOVERY CONTROL PLAN
12. Plaintiff intends that discovery be conducted under Level 2 pursuant to Rule
190.3 of the Texas Rules of Civil Procedure.
THE PARTIES
13. Counter-Plaintiff, Industrial Specialist, LLC is a Delaware limited liability
company with its principal place of business in Georgia.
14. Counter-Defendant Blanchard Refining Company, LLC is a Delaware limited
liability company with its principal place of business in Ohio.
15. Counter-Defendant Marathon Petroleum Company, LP is a Delaware limited
partnership with its principal place of business in Ohio.
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 3
JURISDICTION AND VENUE
16. An actual controversy exists between the parties hereto within the meaning of
TEXAS CIVIL PRACTICE & REMEDIES CODE §37.001, et seq. and a ruling by this Court
will not be advisory in nature, but will dispose of the issues and the parties involved.
17. This Court has subject matter jurisdiction of this suit. Plaintiffs allege the
amount in controversy exceeds $5,000.00 and this action arises out of business engaged by
defendants in this state.
18. Venue of this suit is proper in Galveston County, Texas because all claims or
actions arise out of the same transaction, occurrence, or series of transactions or occurrences.
TEXAS CIVIL PRACTICE & REMEDIES CODE§ 15.005.
IV.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Industrial Specialists, LLC,
respectfully prays that Plaintiffs take nothing by way of their Original Petition, that Defendant
be dismissed from this case with prejudice, and that it recover its costs incurred hereby.
Defendant also prays for all other and further relief, both general and special, at law and in
equity, to which it is justly entitled.
V.
COUNTERCLAIM
SUMMARY OF THE ACTION
19. This action arises from a fire at the Galveston Bay Refinery (“GBR”) in Texas
City, Texas that occurred on January 11, 2016. Fifteen employees of Industrial Specialists, and
one employee of another subcontractor, Certified Safety, were injured when a fire broke out
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 4
in a fluid catalytic cracker unit, referred to as “FCCU3,” which was undergoing a maintenance
turnaround.
The Contract.
20. Prior to beginning the work, ISI and Blanchard entered into a Major Service
Agreement. The Agreement contained an indemnification provision, which provides as
follows:
ARTICLE 13—INDEMNITY
13.1 CONTRACTOR AGREES TO PROTECT, INDEMNIFY, HOLD
HARMLESS, AND DEFEND COMPANY, ITS AFFILIATED
COMPANIES, AND THE OFFICERS, DIRECTORS, EMPLOYEES,
WORKMEN, AGENTS, SERVANTS, AN INVITEES OF THE
COMPANY, AND ITS AFFILIATED COMPANIES (ALL
HEREINAFTER REFERRED TO AS “INDEMNITEES”) FROM AND
AGAINST ALL LOSSES, DAMAGES, (INCLUDING PUNITIVE
DAMAGES), DEMANDS, CLAIMS, SUITS AND OTHER LIABILITIES,
INCLUDING ATTORNEY FEES AND OTHER EXPENSES OF
LITIGATION OR DEFENSE (ALL HEREINAFTER REFERRED TO AS
“CLAIMS”), BECAUSE OF:
(i) BODILY INJURY, INCLUDING DEATH AT ANY TIME RESULTING
THEREFROM; AND/OR;
(ii) DAMAGES TO ALL PROPERTY, INCLUDING LOSS OF USE
THEREOF AND DOWNTIME (BUT EXCLUDING LOSS OF USE
THEREOF AND DOWNTIME OF COMPANY AND PROPERTY
DAMAGE TO COMPANY AS PROVIDED IN ARTICLE 13.4 BELOW);
AND/OR
(iii) CONTAMINATION OF OR ADVERSE EFFECTS ON THE
ENVIRONMENT, INCLUDING BUT NOT LIMITED TO THE COST OF
ASSESSMENT, REMEDIATION AND ALL OTHER RELATED
ACTIVITIES,
WHICH OCCUR, EITHER DIRECTLY OR INDIRECTLY, IN
CONNECTION WITH PERFORMANCE OF THE WORK
CONTEMPLATED HEREUNDER OR BY REASON OF THE
CONTRACTOR AND ITS EMPLOYEES, WORKMEN, AGENTS,
SERVANTS, SUBCONTRACTORS AND VENDORS BEING PRESENT
ON COMPANY’S PREMISES, EXCEPT TO THE EXTENT THE
LIABILITY, LOSS OR DAMAGE IS ATTRIBUTABLE TO AND
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 5
CAUSED BY THE NEGLIGENCE OF THE COMPANY, OR EXCEPT
TO THE EXTENT AS LIMITED BY APPLICABLE LAW.
13.2 CONTRACTOR AGREES TO PROTECT, INDEMNIFY, HOLD
HARMLESS, AND DEFEND INDEMNITEES FROM AND AGAINST
ALL CLAIMS BECAUSE OF:
(i) VIOLATION OR FAILURE TO COMPLY WITH ANY APPLICABLE
LAW; AND/OR
(ii) A BREACH BY CONTRACTOR, ITS EMPLOYEES, WORKMEN,
AGENTS, SERVANTS, SUBCONTRACTORS OR VENDORS, OF ANY
TERM, PROVISION OR WARRANTY CONTAINED HEREIN;
AND/OR
(iii) INFRINGEMENT OF PATENT OR MISAPPROPRIATION OF TRADE
SECRET OR PROPRIETARY RIGHTS OF ANY THIRD PARTY BY
ANY DEVICE, PROCESS OR MATERIAL, NOT SPECIFIED BY THE
COMPANY,
WHICH OCCUR EITHER DIRECTLY OR INDIRECTLY, IN
CONNECTION WITH PERFORMANCE OF THE WORK
CONTEMPLATED HEREUNDER OR BY REASON OF
CONTRACTOR AND ITS EMPLOYEES, WORKMEN, AGENTS,
SERVANTS, SUBCONTRACTORS AND VENDORS BEING PRESENT
ON COMPANY’S PREMISES.
13.3 AS PART OF THE INDEMNITIES IN ARTICLES 13.1 AND 13.2,
CONTRACTOR EXPRESSLY WAIVES ANY IMMUNITY
AVAILABLE TO IT UNDER APPLICABLE WORKERS’
COMPENSATION LAWS OR APPLICABLE STATE
CONSTITUTIONAL PROVISIONS WITH RESPECT TO INJURY OR
DEATH TO ANY EMPLOYEES, BUT ONLY TO THE EXTENT
NECESSARY TO GIVE FULL EFFECT TO THE PURPOSE AND
INTENT OF SAID INDEMNITY.
13.4 NOTWITHSTANDING ARTICLE 13.1 ABOVE, CONTRACTOR
SHALL NOT BE LIABLE TO THE COMPANY IN RESPECT OF ALL
PHYSICAL LOSS OR DAMAGE (EXCLUDING THE COST OF
CORRECTING DEFECTIVE WORK) TO THE WORK, TOGETHER
WITH THE MATERIALS SUPPLIED BY CONTRACTOR AND ANY
MATERIALS SUPPLIES BY COMPANY OR THIRD PARTIES WHICH
ARE UNDER THE CARE, CUSTODY AND CONTROL OF
CONTRACTOR, ITS EMPLOYEES, WORKMEN, AGENTS,
SERVANTS, SUBCONTRACTORS AND VENDORS TO THE EXTENT
SUCH LOSS OR DAMAGE EXCEEDS ONE HUNDRED THOUSAND
DOLLARS ($100,000) WITH RESPECT TO ANY SINGLE;
OCCURRENCE.
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 6
13.5 CONTRACTORS’ SAID AGREEMENT TO PROTECT,
INDEMNIFY, HOLD HARMLESS AND DEFEND AS SET FORTH IN
ARTICLES 13.1 AND 13.2 ABOVE SHALL NOT BE NEGATED OR
REDUCED BY VIRTUE OF CONTRACTOR’S INSURANCE
CARRIER’S DENIAL OF INSURANCE COVERAGE OF THE
OCCURRENCE OR EVENT WHICH IS THE SUBJECT MATTER OF
CLAIMS AND/OR REFUSAL TO DEFEND CONTRACTOR OR
COMPANY. IN ADDITION, CONTRACTOR WILL PAY ALL COSTS
AND EXPENSES, INCLUDING ATTORNEY FEES AND ALL OTHER
EXPENSES OF LITIGATION INCURRED BY COMPANY TO
ENFORCE THE FOREGOING AGREEMENT TO PROTECT,
INDEMNIFY, HOLD HARMLESS AND DEFEND COMPANY OR TO
ENFORCE CONTRACTOR’S INSURANCE CARRIER’S
OBLIGATIONS TO COMPANY AS AN ADDITIONAL INSURED
UNDER ARTICLE 12.1.4 ABOVE.
The Underlying Lawsuit.
21. Following the fire, the injured ISI employees received workers’ compensation
benefits through ISI’s workers’ compensation plan, thereby preventing them from suing ISI.
The injured ISI employees sued Blanchard, Marathon and several other subcontractors for their
alleged negligent acts and omissions in No. 16-MDL-0000, In Re: Blanchard Refining
Galveston Bay Refinery FCCU3 Fire Litigation (the “Underlying Lawsuit"). The one injured
employee who was not an employee of ISI elected not to bring suit against ISI.
22. As this Court is aware, Blanchard, Marathon and several subcontractors recently
entered into an agreement to fully and completely settle all claims against the Underlying
Plaintiffs. Subsequent to the settlement (and with the obvious knowledge that Blanchard-ISI
Master Service Contract did not satisfy the express negligence rule), Plaintiffs filed this action
in which Plaintiffs assert a breach of contract claim against ISI. Specifically, Plaintiffs claim
that ISI breached a duty to indemnity and further breached the contract’s safety and operational
rules.
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 7
23. Plaintiffs’ claims border on frivolity because the indemnification provisions in
the Master Service Contract do not satisfy the express negligence rule. Further, Plaintiffs may
not recast their contractual indemnity claim as a claim for damages under the contract’s safety
provisions. The Underlying Plaintiffs did not sue Blanchard and Marathon for ISI’s violations
of any safety provision: they sued Blanchard and Marathon for what Blanchard and Marathon
did or failed to do. To allow Blanchard and Marathon to litigate the question of who caused
the injuries of the Underlying Plaintiffs post-settlement and without a valid indemnity
agreement “retards rather than advances the policy of preventing satellite litigation regarding
interpretation of indemnity contracts disapproved of in Texas. Moreover, Section 417.004 of
the Texas Labor Code “prohibits indemnity in a workers’ compensation context unless one
party expressly agrees to indemnify the other in writing.” Tex. Lab. Code § 417.004; Enserch
v. Parker, 794 S.W.2d 2, 7 (Tex.1990). Because the indemnity agreement here fails to comply
with the express negligence rule is unenforceable and Plaintiffs’ claims fail as a matter of law.
DISCOVERY CONTROL PLAN
24. ISI intends that discovery be conducted under Level 2 pursuant to Rule 190.3
of the Texas Rules of Civil Procedure.
THE PARTIES
25. Industrial Specialists, LLC is a limited liability company organized and existing
under the laws of Delaware with its principal place of business in Georgia.
26. Blanchard Refining is a limited liability company organized and existing under
the laws of Delaware with its principal place of business in Ohio. Blanchard Refining has
already entered an appearance in this matter.
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 8
27. Marathon Petroleum is a limited liability company organized and existing under
the laws of Delaware with its principal place of business in Ohio. Marathon Petroleum has
already entered an appearance in this matter.
CAUSES OF ACTION
DECLARATORY JUDGMENT
28. The allegations in Paragraphs 1 through 27 are incorporated herein by reference.
Industrial Specialists, LLC seeks a declaration concerning the construction of the indemnity
provision of the Master Service Contract entered between Plaintiffs and ISI and the rights and
obligations of the parties thereto. Specifically,
a. ISI owes no duty to defend or indemnity Blanchard Refining and Marathon
Petroleum from the claims and damages asserted in the Underlying Lawsuit because
the indemnity provisions in the Master Service Contract fail to satisfy the
requirements of the express negligence doctrine;
b. ISI owes no duty to defend or indemnify losses or damages attributable to
subcontractors in the Underlying Lawsuit because the indemnity provisions in the
Master Service Contract fail to satisfy the requirements of the express negligence
doctrine;
c. ISI owes no duty to defend or indemnity Blanchard Refining and Marathon
Petroleum for its alleged damages because Section 417.004 of the Texas Labor
Code bars Plaintiffs’ breach of contract claims against ISI.
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 9
ATTORNEYS' FEES AND EXPENSES
29. The allegations in Paragraphs 1 through 28 are incorporated herein by reference.
30. Industrial Specialists, LLC was required to retain the services of the undersigned
attorney to prosecute this counterclaim.
31. Pursuant to Section 37.009 of the TEXAS CIVIL PRACTICE & REMEDIES
CODE, Industrial Specialists, LLC seeks the recovery of all costs and attorneys’ fees incurred
by Counter-Plaintiff in connection with having to file and prosecute this action.
VI.
REQUEST FOR DISCLOSURE
32. Pursuant to Texas Rule of Civil Procedure 194, Plaintiffs are requested to
disclose, within 30 days of the service of this request, the information or material described in
Rule 194.2.
VII.
CONCLUSION AND PRAYER
Counter-Plaintiff Industrial Specialists, LLC respectfully prays that on final hearing
this honorable court grant Industrial Specialists, LLC:
a. A declaratory judgment that:
i. ISI owes no duty to defend or indemnity Blanchard Refining and Marathon
Petroleum from the claims and damages asserted in the Underlying Lawsuit
because the indemnity provisions in the Master Service Contract fail to
satisfy the requirements of the express negligence doctrine;
ii. ISI owes no duty to defend or indemnity losses or damages attributable to
subcontractors in the Underlying Lawsuit because the indemnity provisions
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 10
in the Master Service Contract fail to satisfy the requirements of the express
negligence doctrine; and
iii. ISI owes no duty to defend or indemnity Blanchard Refining and Marathon
Petroleum for its alleged damages because Section 417.004 of the Texas
Labor Code bars Plaintiffs’ breach of contract claims against ISI.
b. All costs, expenses and reasonable attorneys' fees incurred in this action; and
c. All other and further relief, at law or in equity, general or special, to which Industrial
Specialists, LLC may be justly entitled.
Respectfully submitted,
HOLDEN & MONTEJANO
JACQUELINE MONTEJANO
State Bar No. 24027402
JacquelineMontejano@HoldenLitigation.com
1717 Main Street, Suite 5800
Dallas, Texas 75201
Telephone (214) 745-8888
Facsimile (918) 295-8889
ATTORNEY FOR DEFENDANT
INDUSTRIAL SPECIALISTS, LLC
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document was
served on all counsel of record in accordance with the Texas Rules of Civil Procedure on the
6th day of November, 2017.
Shipley Snell Montgomery
Joel Z. Montgomery
Laina Miller
Z. Alex Ramirez
712Main Street, Suite 1400
Houston, Texas 77002
Jacqueline Montejano
DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 12
Preview
Filed: 11/6/2017 9:11 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 20517520 By: Rolande Kain CAUSE NO. 17-CV-1242 11/6/2017 9:45 AM BLANCHARD REFINING COMPANY § IN THE DISTRICT COURT LLC and MARATHON PETROLEUM § COMPANY, LP § § 212th JUDICIAL DISTRICT V. § § INDUSTRIAL SPECIALISTS, LLC § GALVESTON COUNTY, TEXAS DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant Industrial Specialists, LLC (“Defendant” or “ISI”) in the above-entitled and numbered cause and files this Original Answer, Affirmative Defenses and Counterclaim and, in support thereof, would respectfully show the Court as follows: I. GENERAL DENIAL 1. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant ISI generally denies each and every, all and singular, the assertions alleged in Plaintiff’s Original Petition and requests that Plaintiff be required to prove the charges and allegations against Defendant by a preponderance of the evidence and/or by clear and convincing evidence, as required by the Constitution and the laws of the State of Texas. II. AFFIRMATIVE DEFENSES 2. ISI affirmatively states it is a subscriber under Texas Workers’ Compensation laws and that the fifteen injured ISI employees in No. 16-MDL-0000; In Re: Blanchard Refining Galveston Bay Refinery FCCU3 Fire Litigation (the “Underlying Lawsuit”) at all relevant times were covered by workers’ compensation insurance and that Plaintiffs’ breach of contract claim as it relates to sums paid to settle the claims of ISI’s employees are barred DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 1 by Texas Workers’ Compensation laws, including Section 417.004 of the Texas Labor Code, which provides in relevant part, that “in an action for damages brought by an injured employee … against a third party,” the “employer is not liable to the third party for the reimbursement or damages … unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability.” 3. ISI affirmatively alleges that the contractual indemnity provision that is the basis of Plaintiffs’ alleged claims is unenforceable as written because, inter alia, it fails to meet the “fair notice,” ”conspicuousness” and “express negligence” doctrines as required by Texas law. 4. Plaintiff may not recast its contractual indemnity claim as a claim for damages under the Major Service Contract’s safety provisions; Plaintiffs in the Underlying Litigation did not sue Plaintiffs for ISI’s violations of any safety provision, they sued Plaintiffs for what Plaintiffs did or failed to do asserting that ISI failed to fulfill any oral or written contractual obligations are precluded by the teachings of Fisk Elec. Co. v. Constructors & Assocs., 888 S.W.2d 813 (Tex. 1994), Amerisure Mut. Ins. Co. v. American Home Assur. Co., Civil Action No. 4:07–cv–01760; 2008 WL8053468 (S.D. Tex. Aug. 4, 2008) and Gilbane Bldg. Co. v. Keystone Structural Concrete, Ltd., 263 S.W.3d 291 (Tex. App.—Houston [1st Dist.] 2007, no pet.). 4. ISI affirmatively alleges that Plaintiffs fail to state a claim upon which relief can be granted. 5. ISI affirmatively alleges that Plaintiffs’ claims are barred, in whole or in part, by the defense of unclean hands. 6. ISI affirmatively alleges that Plaintiffs’ claims are barred, in whole or in part, by the defense of waiver. DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 2 7. ISI affirmatively alleges that Plaintiffs’ claims are barred, in whole or in part, by their failure to mitigate damages. 8. ISI affirmatively alleges that it did not engage in any wrongful or negligent conduct, or breach of any common law or contractual obligation owing to Plaintiffs. 9. ISI affirmatively alleges that its conduct was not an actual, sole, proximate, producing, direct or indirect cause of any loss alleged by Plaintiffs. 10. ISI affirmatively alleges that Plaintiffs’ claims are barred in whole or in part by the doctrines of comparative negligence, contributory negligence. 11. ISI affirmatively alleges that that Plaintiffs’ recovery, if any, should be reduced by the comparative negligence, fault, responsibility, or causation attributable to Plaintiff and/or Plaintiff’s Next Friend. TEX. CIV. PRAC. &REM. CODE § 33.001 et seq. In the event Plaintiffs’ responsibility exceeds 50 percent, Plaintiff is not entitled to any recovery. COUNTERCLAIMS DISCOVERY CONTROL PLAN 12. Plaintiff intends that discovery be conducted under Level 2 pursuant to Rule 190.3 of the Texas Rules of Civil Procedure. THE PARTIES 13. Counter-Plaintiff, Industrial Specialist, LLC is a Delaware limited liability company with its principal place of business in Georgia. 14. Counter-Defendant Blanchard Refining Company, LLC is a Delaware limited liability company with its principal place of business in Ohio. 15. Counter-Defendant Marathon Petroleum Company, LP is a Delaware limited partnership with its principal place of business in Ohio. DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 3 JURISDICTION AND VENUE 16. An actual controversy exists between the parties hereto within the meaning of TEXAS CIVIL PRACTICE & REMEDIES CODE §37.001, et seq. and a ruling by this Court will not be advisory in nature, but will dispose of the issues and the parties involved. 17. This Court has subject matter jurisdiction of this suit. Plaintiffs allege the amount in controversy exceeds $5,000.00 and this action arises out of business engaged by defendants in this state. 18. Venue of this suit is proper in Galveston County, Texas because all claims or actions arise out of the same transaction, occurrence, or series of transactions or occurrences. TEXAS CIVIL PRACTICE & REMEDIES CODE§ 15.005. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant Industrial Specialists, LLC, respectfully prays that Plaintiffs take nothing by way of their Original Petition, that Defendant be dismissed from this case with prejudice, and that it recover its costs incurred hereby. Defendant also prays for all other and further relief, both general and special, at law and in equity, to which it is justly entitled. V. COUNTERCLAIM SUMMARY OF THE ACTION 19. This action arises from a fire at the Galveston Bay Refinery (“GBR”) in Texas City, Texas that occurred on January 11, 2016. Fifteen employees of Industrial Specialists, and one employee of another subcontractor, Certified Safety, were injured when a fire broke out DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 4 in a fluid catalytic cracker unit, referred to as “FCCU3,” which was undergoing a maintenance turnaround. The Contract. 20. Prior to beginning the work, ISI and Blanchard entered into a Major Service Agreement. The Agreement contained an indemnification provision, which provides as follows: ARTICLE 13—INDEMNITY 13.1 CONTRACTOR AGREES TO PROTECT, INDEMNIFY, HOLD HARMLESS, AND DEFEND COMPANY, ITS AFFILIATED COMPANIES, AND THE OFFICERS, DIRECTORS, EMPLOYEES, WORKMEN, AGENTS, SERVANTS, AN INVITEES OF THE COMPANY, AND ITS AFFILIATED COMPANIES (ALL HEREINAFTER REFERRED TO AS “INDEMNITEES”) FROM AND AGAINST ALL LOSSES, DAMAGES, (INCLUDING PUNITIVE DAMAGES), DEMANDS, CLAIMS, SUITS AND OTHER LIABILITIES, INCLUDING ATTORNEY FEES AND OTHER EXPENSES OF LITIGATION OR DEFENSE (ALL HEREINAFTER REFERRED TO AS “CLAIMS”), BECAUSE OF: (i) BODILY INJURY, INCLUDING DEATH AT ANY TIME RESULTING THEREFROM; AND/OR; (ii) DAMAGES TO ALL PROPERTY, INCLUDING LOSS OF USE THEREOF AND DOWNTIME (BUT EXCLUDING LOSS OF USE THEREOF AND DOWNTIME OF COMPANY AND PROPERTY DAMAGE TO COMPANY AS PROVIDED IN ARTICLE 13.4 BELOW); AND/OR (iii) CONTAMINATION OF OR ADVERSE EFFECTS ON THE ENVIRONMENT, INCLUDING BUT NOT LIMITED TO THE COST OF ASSESSMENT, REMEDIATION AND ALL OTHER RELATED ACTIVITIES, WHICH OCCUR, EITHER DIRECTLY OR INDIRECTLY, IN CONNECTION WITH PERFORMANCE OF THE WORK CONTEMPLATED HEREUNDER OR BY REASON OF THE CONTRACTOR AND ITS EMPLOYEES, WORKMEN, AGENTS, SERVANTS, SUBCONTRACTORS AND VENDORS BEING PRESENT ON COMPANY’S PREMISES, EXCEPT TO THE EXTENT THE LIABILITY, LOSS OR DAMAGE IS ATTRIBUTABLE TO AND DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 5 CAUSED BY THE NEGLIGENCE OF THE COMPANY, OR EXCEPT TO THE EXTENT AS LIMITED BY APPLICABLE LAW. 13.2 CONTRACTOR AGREES TO PROTECT, INDEMNIFY, HOLD HARMLESS, AND DEFEND INDEMNITEES FROM AND AGAINST ALL CLAIMS BECAUSE OF: (i) VIOLATION OR FAILURE TO COMPLY WITH ANY APPLICABLE LAW; AND/OR (ii) A BREACH BY CONTRACTOR, ITS EMPLOYEES, WORKMEN, AGENTS, SERVANTS, SUBCONTRACTORS OR VENDORS, OF ANY TERM, PROVISION OR WARRANTY CONTAINED HEREIN; AND/OR (iii) INFRINGEMENT OF PATENT OR MISAPPROPRIATION OF TRADE SECRET OR PROPRIETARY RIGHTS OF ANY THIRD PARTY BY ANY DEVICE, PROCESS OR MATERIAL, NOT SPECIFIED BY THE COMPANY, WHICH OCCUR EITHER DIRECTLY OR INDIRECTLY, IN CONNECTION WITH PERFORMANCE OF THE WORK CONTEMPLATED HEREUNDER OR BY REASON OF CONTRACTOR AND ITS EMPLOYEES, WORKMEN, AGENTS, SERVANTS, SUBCONTRACTORS AND VENDORS BEING PRESENT ON COMPANY’S PREMISES. 13.3 AS PART OF THE INDEMNITIES IN ARTICLES 13.1 AND 13.2, CONTRACTOR EXPRESSLY WAIVES ANY IMMUNITY AVAILABLE TO IT UNDER APPLICABLE WORKERS’ COMPENSATION LAWS OR APPLICABLE STATE CONSTITUTIONAL PROVISIONS WITH RESPECT TO INJURY OR DEATH TO ANY EMPLOYEES, BUT ONLY TO THE EXTENT NECESSARY TO GIVE FULL EFFECT TO THE PURPOSE AND INTENT OF SAID INDEMNITY. 13.4 NOTWITHSTANDING ARTICLE 13.1 ABOVE, CONTRACTOR SHALL NOT BE LIABLE TO THE COMPANY IN RESPECT OF ALL PHYSICAL LOSS OR DAMAGE (EXCLUDING THE COST OF CORRECTING DEFECTIVE WORK) TO THE WORK, TOGETHER WITH THE MATERIALS SUPPLIED BY CONTRACTOR AND ANY MATERIALS SUPPLIES BY COMPANY OR THIRD PARTIES WHICH ARE UNDER THE CARE, CUSTODY AND CONTROL OF CONTRACTOR, ITS EMPLOYEES, WORKMEN, AGENTS, SERVANTS, SUBCONTRACTORS AND VENDORS TO THE EXTENT SUCH LOSS OR DAMAGE EXCEEDS ONE HUNDRED THOUSAND DOLLARS ($100,000) WITH RESPECT TO ANY SINGLE; OCCURRENCE. DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 6 13.5 CONTRACTORS’ SAID AGREEMENT TO PROTECT, INDEMNIFY, HOLD HARMLESS AND DEFEND AS SET FORTH IN ARTICLES 13.1 AND 13.2 ABOVE SHALL NOT BE NEGATED OR REDUCED BY VIRTUE OF CONTRACTOR’S INSURANCE CARRIER’S DENIAL OF INSURANCE COVERAGE OF THE OCCURRENCE OR EVENT WHICH IS THE SUBJECT MATTER OF CLAIMS AND/OR REFUSAL TO DEFEND CONTRACTOR OR COMPANY. IN ADDITION, CONTRACTOR WILL PAY ALL COSTS AND EXPENSES, INCLUDING ATTORNEY FEES AND ALL OTHER EXPENSES OF LITIGATION INCURRED BY COMPANY TO ENFORCE THE FOREGOING AGREEMENT TO PROTECT, INDEMNIFY, HOLD HARMLESS AND DEFEND COMPANY OR TO ENFORCE CONTRACTOR’S INSURANCE CARRIER’S OBLIGATIONS TO COMPANY AS AN ADDITIONAL INSURED UNDER ARTICLE 12.1.4 ABOVE. The Underlying Lawsuit. 21. Following the fire, the injured ISI employees received workers’ compensation benefits through ISI’s workers’ compensation plan, thereby preventing them from suing ISI. The injured ISI employees sued Blanchard, Marathon and several other subcontractors for their alleged negligent acts and omissions in No. 16-MDL-0000, In Re: Blanchard Refining Galveston Bay Refinery FCCU3 Fire Litigation (the “Underlying Lawsuit"). The one injured employee who was not an employee of ISI elected not to bring suit against ISI. 22. As this Court is aware, Blanchard, Marathon and several subcontractors recently entered into an agreement to fully and completely settle all claims against the Underlying Plaintiffs. Subsequent to the settlement (and with the obvious knowledge that Blanchard-ISI Master Service Contract did not satisfy the express negligence rule), Plaintiffs filed this action in which Plaintiffs assert a breach of contract claim against ISI. Specifically, Plaintiffs claim that ISI breached a duty to indemnity and further breached the contract’s safety and operational rules. DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 7 23. Plaintiffs’ claims border on frivolity because the indemnification provisions in the Master Service Contract do not satisfy the express negligence rule. Further, Plaintiffs may not recast their contractual indemnity claim as a claim for damages under the contract’s safety provisions. The Underlying Plaintiffs did not sue Blanchard and Marathon for ISI’s violations of any safety provision: they sued Blanchard and Marathon for what Blanchard and Marathon did or failed to do. To allow Blanchard and Marathon to litigate the question of who caused the injuries of the Underlying Plaintiffs post-settlement and without a valid indemnity agreement “retards rather than advances the policy of preventing satellite litigation regarding interpretation of indemnity contracts disapproved of in Texas. Moreover, Section 417.004 of the Texas Labor Code “prohibits indemnity in a workers’ compensation context unless one party expressly agrees to indemnify the other in writing.” Tex. Lab. Code § 417.004; Enserch v. Parker, 794 S.W.2d 2, 7 (Tex.1990). Because the indemnity agreement here fails to comply with the express negligence rule is unenforceable and Plaintiffs’ claims fail as a matter of law. DISCOVERY CONTROL PLAN 24. ISI intends that discovery be conducted under Level 2 pursuant to Rule 190.3 of the Texas Rules of Civil Procedure. THE PARTIES 25. Industrial Specialists, LLC is a limited liability company organized and existing under the laws of Delaware with its principal place of business in Georgia. 26. Blanchard Refining is a limited liability company organized and existing under the laws of Delaware with its principal place of business in Ohio. Blanchard Refining has already entered an appearance in this matter. DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 8 27. Marathon Petroleum is a limited liability company organized and existing under the laws of Delaware with its principal place of business in Ohio. Marathon Petroleum has already entered an appearance in this matter. CAUSES OF ACTION DECLARATORY JUDGMENT 28. The allegations in Paragraphs 1 through 27 are incorporated herein by reference. Industrial Specialists, LLC seeks a declaration concerning the construction of the indemnity provision of the Master Service Contract entered between Plaintiffs and ISI and the rights and obligations of the parties thereto. Specifically, a. ISI owes no duty to defend or indemnity Blanchard Refining and Marathon Petroleum from the claims and damages asserted in the Underlying Lawsuit because the indemnity provisions in the Master Service Contract fail to satisfy the requirements of the express negligence doctrine; b. ISI owes no duty to defend or indemnify losses or damages attributable to subcontractors in the Underlying Lawsuit because the indemnity provisions in the Master Service Contract fail to satisfy the requirements of the express negligence doctrine; c. ISI owes no duty to defend or indemnity Blanchard Refining and Marathon Petroleum for its alleged damages because Section 417.004 of the Texas Labor Code bars Plaintiffs’ breach of contract claims against ISI. DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 9 ATTORNEYS' FEES AND EXPENSES 29. The allegations in Paragraphs 1 through 28 are incorporated herein by reference. 30. Industrial Specialists, LLC was required to retain the services of the undersigned attorney to prosecute this counterclaim. 31. Pursuant to Section 37.009 of the TEXAS CIVIL PRACTICE & REMEDIES CODE, Industrial Specialists, LLC seeks the recovery of all costs and attorneys’ fees incurred by Counter-Plaintiff in connection with having to file and prosecute this action. VI. REQUEST FOR DISCLOSURE 32. Pursuant to Texas Rule of Civil Procedure 194, Plaintiffs are requested to disclose, within 30 days of the service of this request, the information or material described in Rule 194.2. VII. CONCLUSION AND PRAYER Counter-Plaintiff Industrial Specialists, LLC respectfully prays that on final hearing this honorable court grant Industrial Specialists, LLC: a. A declaratory judgment that: i. ISI owes no duty to defend or indemnity Blanchard Refining and Marathon Petroleum from the claims and damages asserted in the Underlying Lawsuit because the indemnity provisions in the Master Service Contract fail to satisfy the requirements of the express negligence doctrine; ii. ISI owes no duty to defend or indemnity losses or damages attributable to subcontractors in the Underlying Lawsuit because the indemnity provisions DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 10 in the Master Service Contract fail to satisfy the requirements of the express negligence doctrine; and iii. ISI owes no duty to defend or indemnity Blanchard Refining and Marathon Petroleum for its alleged damages because Section 417.004 of the Texas Labor Code bars Plaintiffs’ breach of contract claims against ISI. b. All costs, expenses and reasonable attorneys' fees incurred in this action; and c. All other and further relief, at law or in equity, general or special, to which Industrial Specialists, LLC may be justly entitled. Respectfully submitted, HOLDEN & MONTEJANO JACQUELINE MONTEJANO State Bar No. 24027402 JacquelineMontejano@HoldenLitigation.com 1717 Main Street, Suite 5800 Dallas, Texas 75201 Telephone (214) 745-8888 Facsimile (918) 295-8889 ATTORNEY FOR DEFENDANT INDUSTRIAL SPECIALISTS, LLC DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served on all counsel of record in accordance with the Texas Rules of Civil Procedure on the 6th day of November, 2017. Shipley Snell Montgomery Joel Z. Montgomery Laina Miller Z. Alex Ramirez 712Main Street, Suite 1400 Houston, Texas 77002 Jacqueline Montejano DEFENDANT INDUSTRIAL SPECIALISTS, LLC’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Page 12