On July 20, 2017 a
Motion-Secondary
was filed
involving a dispute between
Ace Property & Casualty Insurance Company,
Total Petrochemicals & Refining Usa Inc,
and
Kinder Morgan Petcoke Gp Llc,
Kinder Morgan Petcoke Lp,
for Insurance
in the District Court of Harris County.
Preview
CAUSE NO. 2017
TOTAL PETROCHEMICALS & REFINING IN THE DISTRICT COURT OF
USA, INC. and ACE PROPERTY &
CASUALTY INSURANCE COMPANY
HARRIS COUNTY, TEXAS
KINDER MORGAN PETCOKE, LP and.
KINDER MORGAN PETCOKE GP LLC 164th JUDICIAL DISTRICT
KINDER MORGAN PETCOKE, LP OBJECTION
TO PLAINTIFFS’ PROPOSED SUMMARY JUDGMENT
The parties filed cross motions for summary judgment on the issue of whether
Kinder Morgan Petcoke, LP was in breach of the Crane Contract. Significantly, none of the
parties’ motions moved for summary judgment on damages.
A hearing was held on the parties’ motions on June 25, 2019. At the conclusion o
the hearing, the Court asked Plaintiffs’ attorney to submit an order in the event the Court granted
their motion, which was taken under advisement. Plaintiffs filed a proposed order on June 25,
2019. , Ex. “A.” The order is not proper because it exceeds the issues on which Plaintiffs
moved for summary judgment. Plaintiffs moved for summary judgment on the issue of whether
Kinder Morgan breached the Crane Contract. Plaintiffs did not, however, move for summary
judgment on the damages caused by any such breach, the measure of damages, or the amount of
damages. The fact that the summary judgments did not address damages was discussed by the
parties and the Court at the hearing. The Court stated that if Plaintiffs’ motions were granted, it
be on damages and that damages would remain to be determined.
Plaintiffs’ proposed order does state that the issue regarding the amount of damages
suffered by TOTAL and Chubb remains pending before this Court, but it also contradictorily states
that “Kinder Morgan Petcoke LP’s breaches of the Contract caused TOTAL, and its excess carrier
Chubb, damages by increasing the amount they had to pay to resolve the ‘Underlying Claims’
(as that term is used in the Motions for Summary Judgment)” (emphasis added). The damages
caused by any breach and the measure of any damages was not part of Plaintiffs’ motion for
summary judgment, no summary judgment evidence was submitted as to damages, and certainly
causation/measure of damages was not proven as a matter of law. Additionally, the proposed order
is vague and unclear as to what is meant by “increasing the amount they had to pay to resolve” the
Underlying Claims.
For the above reasons, Kinder Morgan Petcoke, LP objects to the proposed order submitted
by Plaintiffs.
MUNSCH HARDT KOPF & HARR, P.C.
/s/ James M. Bettis, Jr.
James M. Bettis, Jr.
jbettis@munsch.com
State Bar No. 02268650
700 Milam Street, Suite 2700
Houston, Texas 77002-2806
Tel: (713) 222-1470
Fax: (713) 222-1475
BUTCH BOYD LAW FIRM
/s/ Ernest “Butch” Boyd, Jr.
Ernest “Butch” Boyd Jr.
butchboyd@butchboydlawfirm.com
State Bar No. 00783694
2905 Sackett St.
Houston, Texas 77098
Tel: (713) 589-8477
ATTORNEYS FOR DEFENDANTS,
KINDER MORGAN PETCOKE, LP AND
KINDER MORGAN PETCOKE GP LLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading has been
electronically filed and served on the following counsel of record on this the 26th day of June,
2019:
Jack G. Carnegie
Kelly H. Leonard
Strasburger & Price, LLP
909 Fannin, Suite 2300
Houston, Texas 77010
Jack.carnegie@strasburger.com
Kelly.leonard@strasburger.com
Sarah R. Smith
Lewis Brisbois Bisgaard & Smith, LLP
24 East Greenway Plaza, Suite 1400
Houston, Texas 77046
Sarah.Smith@lewisbrisbois.com
/s/James M. Bettis, Jr.
James M. Bettis, Jr.
4840-5626-4091v.1
Document Filed Date
June 26, 2019
Case Filing Date
July 20, 2017
Status
Case On Appeal - Civil
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CAUSE NO. 2017 TOTAL PETROCHEMICALS & REFINING IN THE DISTRICT COURT OF USA, INC. and ACE PROPERTY & CASUALTY INSURANCE COMPANY HARRIS COUNTY, TEXAS KINDER MORGAN PETCOKE, LP and. KINDER MORGAN PETCOKE GP LLC 164th JUDICIAL DISTRICT KINDER MORGAN PETCOKE, LP OBJECTION TO PLAINTIFFS’ PROPOSED SUMMARY JUDGMENT The parties filed cross motions for summary judgment on the issue of whether Kinder Morgan Petcoke, LP was in breach of the Crane Contract. Significantly, none of the parties’ motions moved for summary judgment on damages. A hearing was held on the parties’ motions on June 25, 2019. At the conclusion o the hearing, the Court asked Plaintiffs’ attorney to submit an order in the event the Court granted their motion, which was taken under advisement. Plaintiffs filed a proposed order on June 25, 2019. , Ex. “A.” The order is not proper because it exceeds the issues on which Plaintiffs moved for summary judgment. Plaintiffs moved for summary judgment on the issue of whether Kinder Morgan breached the Crane Contract. Plaintiffs did not, however, move for summary judgment on the damages caused by any such breach, the measure of damages, or the amount of damages. The fact that the summary judgments did not address damages was discussed by the parties and the Court at the hearing. The Court stated that if Plaintiffs’ motions were granted, it be on damages and that damages would remain to be determined. Plaintiffs’ proposed order does state that the issue regarding the amount of damages suffered by TOTAL and Chubb remains pending before this Court, but it also contradictorily states that “Kinder Morgan Petcoke LP’s breaches of the Contract caused TOTAL, and its excess carrier Chubb, damages by increasing the amount they had to pay to resolve the ‘Underlying Claims’ (as that term is used in the Motions for Summary Judgment)” (emphasis added). The damages caused by any breach and the measure of any damages was not part of Plaintiffs’ motion for summary judgment, no summary judgment evidence was submitted as to damages, and certainly causation/measure of damages was not proven as a matter of law. Additionally, the proposed order is vague and unclear as to what is meant by “increasing the amount they had to pay to resolve” the Underlying Claims. For the above reasons, Kinder Morgan Petcoke, LP objects to the proposed order submitted by Plaintiffs. MUNSCH HARDT KOPF & HARR, P.C. /s/ James M. Bettis, Jr. James M. Bettis, Jr. jbettis@munsch.com State Bar No. 02268650 700 Milam Street, Suite 2700 Houston, Texas 77002-2806 Tel: (713) 222-1470 Fax: (713) 222-1475 BUTCH BOYD LAW FIRM /s/ Ernest “Butch” Boyd, Jr. Ernest “Butch” Boyd Jr. butchboyd@butchboydlawfirm.com State Bar No. 00783694 2905 Sackett St. Houston, Texas 77098 Tel: (713) 589-8477 ATTORNEYS FOR DEFENDANTS, KINDER MORGAN PETCOKE, LP AND KINDER MORGAN PETCOKE GP LLC CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been electronically filed and served on the following counsel of record on this the 26th day of June, 2019: Jack G. Carnegie Kelly H. Leonard Strasburger & Price, LLP 909 Fannin, Suite 2300 Houston, Texas 77010 Jack.carnegie@strasburger.com Kelly.leonard@strasburger.com Sarah R. Smith Lewis Brisbois Bisgaard & Smith, LLP 24 East Greenway Plaza, Suite 1400 Houston, Texas 77046 Sarah.Smith@lewisbrisbois.com /s/James M. Bettis, Jr. James M. Bettis, Jr. 4840-5626-4091v.1