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CAUSE NO. 2017-48075
TOTAL PETROCHEMICALS & REFINING § IN THE DISTRICT COURT OF
USA, INC. and ACE PROPERTY & §
CASUALTY INSURANCE COMPANY §
vs. HARRIS COUNTY, TEXAS
KINDER MORGAN PETCOKE, LP and. §
KINDER MORGAN PETCOKE GP LLC § 164th JUDICIAL DISTRICT
DEFENDANT’S ORIGINALCOUNTERCLAIM AND REQUEST S FOR DISCLOSURE
Kinder Morgan Petcoke, LP (“Kinder Morgan”) files its original counterclaim against
Total Petrochemical & Refining USA, Inc. (“TOTAL”) as follows:
Background
A Kinder Morgan employee, Thomas Gary Counts, was fatally injured while
working at TOTAL’s Port Arthur Refinery n September 5, 2015. Mr. Counts’ estate and heirs
filed a lawsuit for recovery of wrongful death damages against TOTAL, various TOTAL
employees, and Kinder Morgan. The lawsuit was styled: Wanda Counts, Individually and as
Representative of the Estate of Thomas Gary Counts, Deceased v. Total Petrochemicals &
Refining USA, Inc. and Kinder Morgan, Inc.; Cause No. A 197,516 in the 58 Judicial District
Court of Jefferson County, Texas (the “Counts Lawsuit”).
TOTAL and Kinder Morgan disputed the nature and scope of the parties’ rights,
duties, and/or obligations under a Coke Cutting and Crane Contract dated April 2009 (the “Crane
Contract”) as it related to the Counts Lawsuit. Specifically, TOTAL claimed that Kinder
Morgan was legally obligated to pay for any settlement by or judgment against TOTAL and its
employees (the “TOTAL Defendants”), and Kinder Morgan denied any such obligations. In
order to prevent this dispute from hindering settlement efforts by TOTAL with Plaintiffs,
4812 0648 1003v.1
TOTAL and Kinder Morgan entered into an Agreement to Fund a Settlement of Claims Against
Total dated October 12, 2016 (the “Funding Agreement”). The purpose of the Funding
Agreement was determine a way for Kinder Morgan and TOTAL to fund a settlement between
the TOTAL Defendants and the Counts Plaintiffs without having to first resolv the dispute
between Kinder Morgan and TOTAL. The Funding Agreement also provided that TOTAL and
Kinder Morgan could subsequently recover their contributions toward the settlement m the
other party depending upon the legal resolution of the dispute. The Funding Agreement was
later amended by the First Amendment to Agreement to Fund a Settlement of Claims Against
Total dated December 20, 2016.
Pursuant to the Funding Agreement as amended, Kinder Morgan contributed
significant funds toward the settlement of the claims against the TOTAL Defendants in the
Counts Lawsuit. Such contribution was made expressly without prejudice or waiver of any right
to seek reimbursement. The parties agreed that they had the express right to seek reimbursement
for such contribution and the right to have a court of competent jurisdiction determine how the
settlement of the Counts Lawsuit should have been funded and obtain reimbursement of any
amount paid in excess of what it is subsequently determined that Kinder Morgan was legally
obligated to pay.
Breach of Contract
TOTAL and Kinder Morgan entered into the Crane Contract and the Funding
Agreement. Pursuant to the Crane Contract and the Funding Agreement, TOTAL owes
reimbursement to Kinder Morgan for the full amount paid by Kinder Morgan towards to
settlement of the claims against the TOTAL Defendants in the Counts Lawsuit. TOTAL has
refused to pay such reimbursement and is in breach of both contracts. The breach of contract has
4812 0648 1003v.1
caused damages to Kinder Morgan for the amount of money paid by Kinder Morgan towards the
settlement of the claims against the TOTAL Defendants in the Counts Lawsuit.
Attorneys’ Fees
Kinder Morgan was required to retain the services of counsel to prosecute this
counterclaim as a result of TOTAL’s breaches of contract. Kinder Morgan seeks the recovery of
its reasonable and necessary attorneys’ fees and costs pursuant to Tex. Civ. Prac. & Rem Code
t. seq
Request for Disclosure
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, TOTALis requested
to disclose the information or material described in Rule 194.2.
Prayer
WHEREFORE, PREMISES CONSIDERED, Kinder Morgan prays that TOTAL take
nothing by this suit, that Kinder Morgan have judgment against TOTAL for the full amount paid
by Kinder Morgan towards settlement of the claims against the TOTAL Defendants in the
Counts Lawsuit, that it recover its attorneys’ fees, costs, and all such other and further relief,
general and special, at law and in equity, to which Kinder Morgan is entitled.
4812 0648 1003v.1
MUNSCH HARDT KOPF & HARR, P.C.
/s/James M. Bettis, Jr.
James M. Bettis, Jr.
jbettis@munsch.com
State Bar No. 02268650
Paul D. Sculley
psculley@munsch.com
State Bar No. 09113800
700 Milam Street, Suite 2700
Houston, Texas 77002
Tel: (713) 222
Fax: (713) 222
BUTCH BOYD LAW FIRM
/s/Butch Boyd, Jr.
Ernest “Butch” Boyd Jr.
butchboyd@butchboydlawfirm.com
State Bar No. 00783694
2905 Sackett St.
Houston, Texas 77098
Tel: (713) 589
ATTORNEYS FOR DEFENDANTS KINDER
MORGAN PETCOKE, LP
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 day of August
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.
4812 0648 1003v.1
Preview
CAUSE NO. 2017-48075 TOTAL PETROCHEMICALS & REFINING § IN THE DISTRICT COURT OF USA, INC. and ACE PROPERTY & § CASUALTY INSURANCE COMPANY § vs. HARRIS COUNTY, TEXAS KINDER MORGAN PETCOKE, LP and. § KINDER MORGAN PETCOKE GP LLC § 164th JUDICIAL DISTRICT DEFENDANT’S ORIGINALCOUNTERCLAIM AND REQUEST S FOR DISCLOSURE Kinder Morgan Petcoke, LP (“Kinder Morgan”) files its original counterclaim against Total Petrochemical & Refining USA, Inc. (“TOTAL”) as follows: Background A Kinder Morgan employee, Thomas Gary Counts, was fatally injured while working at TOTAL’s Port Arthur Refinery n September 5, 2015. Mr. Counts’ estate and heirs filed a lawsuit for recovery of wrongful death damages against TOTAL, various TOTAL employees, and Kinder Morgan. The lawsuit was styled: Wanda Counts, Individually and as Representative of the Estate of Thomas Gary Counts, Deceased v. Total Petrochemicals & Refining USA, Inc. and Kinder Morgan, Inc.; Cause No. A 197,516 in the 58 Judicial District Court of Jefferson County, Texas (the “Counts Lawsuit”). TOTAL and Kinder Morgan disputed the nature and scope of the parties’ rights, duties, and/or obligations under a Coke Cutting and Crane Contract dated April 2009 (the “Crane Contract”) as it related to the Counts Lawsuit. Specifically, TOTAL claimed that Kinder Morgan was legally obligated to pay for any settlement by or judgment against TOTAL and its employees (the “TOTAL Defendants”), and Kinder Morgan denied any such obligations. In order to prevent this dispute from hindering settlement efforts by TOTAL with Plaintiffs, 4812 0648 1003v.1 TOTAL and Kinder Morgan entered into an Agreement to Fund a Settlement of Claims Against Total dated October 12, 2016 (the “Funding Agreement”). The purpose of the Funding Agreement was determine a way for Kinder Morgan and TOTAL to fund a settlement between the TOTAL Defendants and the Counts Plaintiffs without having to first resolv the dispute between Kinder Morgan and TOTAL. The Funding Agreement also provided that TOTAL and Kinder Morgan could subsequently recover their contributions toward the settlement m the other party depending upon the legal resolution of the dispute. The Funding Agreement was later amended by the First Amendment to Agreement to Fund a Settlement of Claims Against Total dated December 20, 2016. Pursuant to the Funding Agreement as amended, Kinder Morgan contributed significant funds toward the settlement of the claims against the TOTAL Defendants in the Counts Lawsuit. Such contribution was made expressly without prejudice or waiver of any right to seek reimbursement. The parties agreed that they had the express right to seek reimbursement for such contribution and the right to have a court of competent jurisdiction determine how the settlement of the Counts Lawsuit should have been funded and obtain reimbursement of any amount paid in excess of what it is subsequently determined that Kinder Morgan was legally obligated to pay. Breach of Contract TOTAL and Kinder Morgan entered into the Crane Contract and the Funding Agreement. Pursuant to the Crane Contract and the Funding Agreement, TOTAL owes reimbursement to Kinder Morgan for the full amount paid by Kinder Morgan towards to settlement of the claims against the TOTAL Defendants in the Counts Lawsuit. TOTAL has refused to pay such reimbursement and is in breach of both contracts. The breach of contract has 4812 0648 1003v.1 caused damages to Kinder Morgan for the amount of money paid by Kinder Morgan towards the settlement of the claims against the TOTAL Defendants in the Counts Lawsuit. Attorneys’ Fees Kinder Morgan was required to retain the services of counsel to prosecute this counterclaim as a result of TOTAL’s breaches of contract. Kinder Morgan seeks the recovery of its reasonable and necessary attorneys’ fees and costs pursuant to Tex. Civ. Prac. & Rem Code t. seq Request for Disclosure Pursuant to Rule 194 of the Texas Rules of Civil Procedure, TOTALis requested to disclose the information or material described in Rule 194.2. Prayer WHEREFORE, PREMISES CONSIDERED, Kinder Morgan prays that TOTAL take nothing by this suit, that Kinder Morgan have judgment against TOTAL for the full amount paid by Kinder Morgan towards settlement of the claims against the TOTAL Defendants in the Counts Lawsuit, that it recover its attorneys’ fees, costs, and all such other and further relief, general and special, at law and in equity, to which Kinder Morgan is entitled. 4812 0648 1003v.1 MUNSCH HARDT KOPF & HARR, P.C. /s/James M. Bettis, Jr. James M. Bettis, Jr. jbettis@munsch.com State Bar No. 02268650 Paul D. Sculley psculley@munsch.com State Bar No. 09113800 700 Milam Street, Suite 2700 Houston, Texas 77002 Tel: (713) 222 Fax: (713) 222 BUTCH BOYD LAW FIRM /s/Butch Boyd, Jr. Ernest “Butch” Boyd Jr. butchboyd@butchboydlawfirm.com State Bar No. 00783694 2905 Sackett St. Houston, Texas 77098 Tel: (713) 589 ATTORNEYS FOR DEFENDANTS KINDER MORGAN PETCOKE, LP 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 day of August 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. 4812 0648 1003v.1