Motion-Secondary: TOTAL PETROCHEMICALS & REFINING USA INC vs. KINDER MORGAN PETCOKE LP

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                                CAUSE NO. 2017-48075

 TOTAL PETROCHEMICALS &                                        IN THE DISTRICT COURT OF
 REFINING USA, INC., and
 ACE PROPERTY & CASUALTY
 INSURANCE COMPANY,
                                                             HARRIS COUNTY


 KINDER MORGAN PETCOKE, LP
 AND KINDER MORGAN                                            164th DISTRICT COURT
 PETCOKE GP LLC


    RESPONSE TO KINDER MORGAN PETCOKE’S OBJECTION TO PLAINTIFF'S
                 PROPOSED SUMMARY JUDGMENT ORDER


          TOTAL Petrochemicals & Refining USA,             Inc. (“TOTAL”) and its excess insurer Ace

Property & Casualty Insurance Company (“Chubb”), moved for summary judgment on whether

Kinder Morgan Petcoke, LP breach _ the Crane Contract
                                                    by, among other things, failing
                                                                                to carry

the insurance required by the Crane Contract and improperly limiting the scope of coverage

afforded
    to TOTAL, as an additional insured, on the insurance
                                                   Kinder Morgan did carry.

            he motions also demonstrated that the Crane Contract required Kinder Morgan's

insurance to be primary and non contributory with TOTAL’s            insurance such that, in the eventof

aloss, Kinder Morgan’ s insurance would pay first. SeeTOTAL’s MSJ at p. 9.

            here was in fact a loss - the “Underlying Claims” arising from the Counts incident

which were settled.            Kinder Morgan admits that “Kinder Morgan denied that coverage existed

for TOTAL [for] the Underlying Claims .”             See    Kinder Morgan's MSJ at {| Had Kinder

Morgan’s insurance covered TOTAL for the Underlying Claims and paid first pursuant to the

Crane    Contract, the loss suffered
                                by TOTAL             and   its insurers would have been reduced. Thus,




4853-1029-7243.1/A7284/A26161/062719
the motions demonstrated that Kinder Morgan's breaches caused TOTAL and its excess carier

damagesby in creasing the amount they had to pay to resolve the Underlying Claims

         The motions did not address the specific amount of damages and, accordingly, the

proposed.      der states that the issue of the amount of damages remains pending before this Court.

         For the reasons stated above, TOTAL and Chubb respectfully request that this Court

grant their motions for summary judgment and sign their proposed                  der and for such other

relief to which they may be entitled.

                                                Respectfully submitted,

                                                CLARK HILL STRASBURGER

                                                /s{Jack Carnegie
                                                JACK CARNEGIE
                                                State Bar No. 03826100
                                                909 Fannin Street, Suite 2300
                                                Houston, Texas 77010
                                                (713) 951 Telephone
                                                (713) 951             Facsimile
                                                jack.camegie@clarkhillstrasburger.com

                                                COUNSEL FOR TOTAL PETROCHEMICALS
                                                & REFINING USA, INC.

                                      CERTIFICATE OF SERVICE

        This is to certify that the foregoing document has been forwarded to all counsel pursuant
to the Texas Rules of Civil Procedure    on June 2

                                                /s/   Jack Carnegie
                                               JACK CARNEGIE




    1029 7243.1/A7284/A26161/062719