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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, TEXAS
KINDER MORGAN PETCOKE, LP and
KINDER MORGAN PETCOKE GP LLC 129th JUDICIAL DISTRICT
KINDER MORGAN’S RESPONSE TO TOTAL AND CHUBB’S
MOTION TOMODIFY, CORRECT OR REFORM THE JUDGMENT
Defendants Kinder Morgan Petcoke, LP and Kinder Morgan Petcoke GP LLC
(individually and/or collectively “Kinder Morgan”) file this Response to TOTAL Petrochemicals
& Refining USA, Inc.’s (“TOTAL”) and Ace Property & Casualty Insurance Company’s
(“CHUBB”) Motion to Modify, Correct or Reform the Judgment as follows:
SUMMARY
TOTAL and CHUBB seek to re litigate the very issues the Court has already
decided. The substance of their motion has already been briefed ad nauseum to the Court and has
been the subject of multiple oral hearings. The Court has decided and ruled on these issues.
TOTAL and CHUBB obviously disagree with the Court’s reasoning and judgment. Thus,
TOTAL’s and CHUBB’s remedy is an appeal, for which it has already given notice. Therefore,
the Court should summarily deny TOTAL’s and Chubb’s Motion to Modify, Correct or Reform
the Judgment.
By comparison, Kinder Morgan’s Motion to Correct the Judgment seeks only to have the amount of the
judgment reflect the undisputed amounts that were already paid by Kinder Morgan.
ARGUMENTS AND AUTHORITIES
Collectively, the Parties have provided over 200 pages of motions, responses,
replies and briefings on the issues resolved by the Court’s Final Summary Judgment Order
(the“Order”). Despite the Court’s clear findings in the Order, TOTAL and CHUBB now ask the
Court to “correct” the judgment by turning the Court’s findings on their head.
The Order clearly holds that Kinder Morgan breached the Crane Contract by not
having the minimum required insurance policies and by failing to make TOTAL and its employees
additional insureds on those minimum required insurance policies. In making this finding, the
Court concluded that TOTAL’s damages were capped at the minimum amount of the policy limits
for those insurance policiesa total of $6 million.
TOTAL’s and CHUBB’s arguments did not prevail. So, this newest motion
seeking to have the court reverse itself is directly contrary to many of their other motions. Now
TOTAL and CHUBB admit that TOTAL and its employees were additional insureds, despite
earlier claims that “Kinder Morgan failed to extend additional insured status to all the entities and
individuals the Crane Contract required to be made additional insureds … .” See TOTAL’s Cross
Motion for Partial Summary Judgment on Liability, filed May 17, 2019 at 5.
TOTAL and CHUBB use this new admission as a basis to say they should be
entitled to the proceeds from the entirety of Kinder Morgan’s insurance program, despite the fact
that TOTAL itself concedes the insurance program provided no coverage. Regardless, the court’s
express reasoning is still applicable: TOTAL’s and CHUBB’S damages are capped at $6 million.
After accounting for the $5 million already paid by Kinder Morgan, the remaining balance is
million.
The Court’s Order failed to account for the undisputed $5 million that Kinder Morgan has already paid, which
is the sole basis for Kinder Morgan’s own Motion to Modify the Judgment.
TOTAL’s and CHUBB’s desire to have the Court reconsider and reverse its
findings that it made based on the review of over 200 pages of briefing and extensive oral argument
is not a proper motion to modify, correct, or reform the judgment. Therefore, rather than reassert
every prior argument here, Kinder Morgan instead incorporates its prior Motions for Summary
Judgment, Responses, and Replies made in the case, and requests that the Court summarily deny
TOTAL’s and CHUBB’s Motion to Modify, Correct or Reform the Judgment.
CONCLUSION
The Court’s Order is clear that TOTAL’s and CHUBB’s damages for breach of the
Crane Contract are capped at the $6 million insurance limits set forth in the Crane Contract. The
issues of whether and how Kinder Morgan breached the Crane Contract have been briefed
nauseum and the Court issued its ruling and its express reasoning. Further debate through
TOTAL’s and CHUBB’s improper Motion to Modify, Correct or Reform the Judgment is
unwarranted. TOTAL’s and CHUBB’s motion should be summarily denied. They can take the
matter up on appeal if they wish.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants Kinder Morgan Petcoke, LP and
Kinder Morgan Petcoke GP LLC pray that TOTAL Petrochemicals & Refining USA, Inc.’s and
Ace Property & Casualty Insurance Company’s Motion to Modify, Correct or Reform the
Judgment be denied in its entirety and that Defendants Kinder Morgan Petcoke, LP and Kinder
Morgan Petcoke GP LLC’s recover all other relief at law or in equity to which they are entitled.
Respectfully submitted,
UNSCH ARDT OPF ARR, P.C.
By:/s/ James M. Bettis, Jr.
James M. Bettis, Jr.
State Bar No. 02268650
jbettis@munsch.com
D. Mitchell McFarland
State Bar No. 13597700
mmcfarland@munsch.com
Justin K. Ratley
State Bar No.
jratley@munsch.com
700 Milam Street, Suite 2700
Houston, Texas 77002
Tel: (713) 222
Fax: (713) 222
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 has been electronically filed
and served on the following counsel of record on this the 1st day of October, 2020:
Jack G. Carnegie
LARK ILL TRASBURGER
909 Fannin, Suite 2300
Houston, Texas 77010
Jack.carnegie@strasburger.com
Sarah R. Smith
EWIS RISBOIS ISGAARD MITH, LLP
24 East Greenway Plaza, Suite 1400
Houston, Texas
Sarah.Smith@lewisbrisbois.com
/s/ James M. Bettis, Jr.
James M. Bettis, Jr.
4849 4752 6349v.3
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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, TEXAS KINDER MORGAN PETCOKE, LP and KINDER MORGAN PETCOKE GP LLC 129th JUDICIAL DISTRICT KINDER MORGAN’S RESPONSE TO TOTAL AND CHUBB’S MOTION TOMODIFY, CORRECT OR REFORM THE JUDGMENT Defendants Kinder Morgan Petcoke, LP and Kinder Morgan Petcoke GP LLC (individually and/or collectively “Kinder Morgan”) file this Response to TOTAL Petrochemicals & Refining USA, Inc.’s (“TOTAL”) and Ace Property & Casualty Insurance Company’s (“CHUBB”) Motion to Modify, Correct or Reform the Judgment as follows: SUMMARY TOTAL and CHUBB seek to re litigate the very issues the Court has already decided. The substance of their motion has already been briefed ad nauseum to the Court and has been the subject of multiple oral hearings. The Court has decided and ruled on these issues. TOTAL and CHUBB obviously disagree with the Court’s reasoning and judgment. Thus, TOTAL’s and CHUBB’s remedy is an appeal, for which it has already given notice. Therefore, the Court should summarily deny TOTAL’s and Chubb’s Motion to Modify, Correct or Reform the Judgment. By comparison, Kinder Morgan’s Motion to Correct the Judgment seeks only to have the amount of the judgment reflect the undisputed amounts that were already paid by Kinder Morgan. ARGUMENTS AND AUTHORITIES Collectively, the Parties have provided over 200 pages of motions, responses, replies and briefings on the issues resolved by the Court’s Final Summary Judgment Order (the“Order”). Despite the Court’s clear findings in the Order, TOTAL and CHUBB now ask the Court to “correct” the judgment by turning the Court’s findings on their head. The Order clearly holds that Kinder Morgan breached the Crane Contract by not having the minimum required insurance policies and by failing to make TOTAL and its employees additional insureds on those minimum required insurance policies. In making this finding, the Court concluded that TOTAL’s damages were capped at the minimum amount of the policy limits for those insurance policiesa total of $6 million. TOTAL’s and CHUBB’s arguments did not prevail. So, this newest motion seeking to have the court reverse itself is directly contrary to many of their other motions. Now TOTAL and CHUBB admit that TOTAL and its employees were additional insureds, despite earlier claims that “Kinder Morgan failed to extend additional insured status to all the entities and individuals the Crane Contract required to be made additional insureds … .” See TOTAL’s Cross Motion for Partial Summary Judgment on Liability, filed May 17, 2019 at 5. TOTAL and CHUBB use this new admission as a basis to say they should be entitled to the proceeds from the entirety of Kinder Morgan’s insurance program, despite the fact that TOTAL itself concedes the insurance program provided no coverage. Regardless, the court’s express reasoning is still applicable: TOTAL’s and CHUBB’S damages are capped at $6 million. After accounting for the $5 million already paid by Kinder Morgan, the remaining balance is million. The Court’s Order failed to account for the undisputed $5 million that Kinder Morgan has already paid, which is the sole basis for Kinder Morgan’s own Motion to Modify the Judgment. TOTAL’s and CHUBB’s desire to have the Court reconsider and reverse its findings that it made based on the review of over 200 pages of briefing and extensive oral argument is not a proper motion to modify, correct, or reform the judgment. Therefore, rather than reassert every prior argument here, Kinder Morgan instead incorporates its prior Motions for Summary Judgment, Responses, and Replies made in the case, and requests that the Court summarily deny TOTAL’s and CHUBB’s Motion to Modify, Correct or Reform the Judgment. CONCLUSION The Court’s Order is clear that TOTAL’s and CHUBB’s damages for breach of the Crane Contract are capped at the $6 million insurance limits set forth in the Crane Contract. The issues of whether and how Kinder Morgan breached the Crane Contract have been briefed nauseum and the Court issued its ruling and its express reasoning. Further debate through TOTAL’s and CHUBB’s improper Motion to Modify, Correct or Reform the Judgment is unwarranted. TOTAL’s and CHUBB’s motion should be summarily denied. They can take the matter up on appeal if they wish. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants Kinder Morgan Petcoke, LP and Kinder Morgan Petcoke GP LLC pray that TOTAL Petrochemicals & Refining USA, Inc.’s and Ace Property & Casualty Insurance Company’s Motion to Modify, Correct or Reform the Judgment be denied in its entirety and that Defendants Kinder Morgan Petcoke, LP and Kinder Morgan Petcoke GP LLC’s recover all other relief at law or in equity to which they are entitled. Respectfully submitted, UNSCH ARDT OPF ARR, P.C. By:/s/ James M. Bettis, Jr. James M. Bettis, Jr. State Bar No. 02268650 jbettis@munsch.com D. Mitchell McFarland State Bar No. 13597700 mmcfarland@munsch.com Justin K. Ratley State Bar No. jratley@munsch.com 700 Milam Street, Suite 2700 Houston, Texas 77002 Tel: (713) 222 Fax: (713) 222 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 has been electronically filed and served on the following counsel of record on this the 1st day of October, 2020: Jack G. Carnegie LARK ILL TRASBURGER 909 Fannin, Suite 2300 Houston, Texas 77010 Jack.carnegie@strasburger.com Sarah R. Smith EWIS RISBOIS ISGAARD MITH, LLP 24 East Greenway Plaza, Suite 1400 Houston, Texas Sarah.Smith@lewisbrisbois.com /s/ James M. Bettis, Jr. James M. Bettis, Jr. 4849 4752 6349v.3