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9/24/2020 9:28:34 AM
Marilyn Burgess - District Clerk
Harris Count,
Envelope No: 46523860
By: PATTON, JONATHAN R
Filed: 9/24/2020 9:28:34 AM
Pgs-4
CAUSE NO. 2017-48075
ENPTX
TOTAL PETROCHEMICALS & IN THE DISTRICT COURT OF
REFINING USA, INC. and
ACE PROPERTY & CASUALTY
INSURANCE COMPANY
v. HARRIS COUNTY, TEXAS
KINDER MORGAN PETCOKE, LP and
KINDER MORGAN PETCOKE GP LLC 129th JUDICIAL DISTRICT
CAUSE NO. 2017-48075
TOTAL PETROCHEMICALS & IN THE DISTRICT COURT OF
REFINING USA, INC. and
ACE PROPERTY & CASUALTY
INSURANCE COMPANY
Vv. HARRIS COUNTY, TEXAS
KINDER MORGAN PETCOKE, LP and
KINDER MORGAN PETCOKE GP LLC 164th JUDICIAL DISTRICT
CORRECTED FINAL SUMMARY JUDGMENT
ON THIS DAY the Court heard Plaintiff TOTAL Petrochemicals & Refining USA, Inc.’s
(“TOTAL”) Motion for Final Summary Judgment against defendants Kinder Morgan Petcoke LP
and its general partner, Kinder Morgan Petcoke GP LLC (together “KINDER MORGAN’), filed
on July 30, 2019 (“MFSJ”); and KINDER MORGAN’s Motion for Partial Summary Judgment as
to Damages (“MPSJ,” filed August 13, 2019). Having considered the foregoing motions, together
with the parties’ several replies, sur-replies and letters to the Court, the arguments of counsel at
the (Zoom) hearing held on May 5, 2020, and the Court’s prior interlocutory summary judgment
Order in this matter (entered on August 17, 2019), which granted TOTAL’s and Ace Property &
Casualty Insurance Company’s (“CHUBB”) motions for partial summary judgment on liability,
the undersigned finds and rules as follows
1 KINDER MORGAN’s MPSJ is hereby DENIED in party. The Court finds, as a
matter of law, that TOTAL’s damages as asserted herein are direct and not consequential; and,
therefore, KINDER MORGAN’s affirmative defense based upon the contractual exclusion of
liability for consequential damages in Article 23 of the Crane Contract (“the Contract”) fails as a
matter of law
2 TOTAL’s MFSJ is hereby GRANTED in part. Specifically, the Court finds that
(as previously ruled in the August 17, 2019 interlocutory Order) KINDER MORGAN breached
the Contract by
a) Failing to carry the required minimum insurance policies (not less than $1 million
Commercial General Liability [CGL] and not less than $5 million follow form
excess (umbrella) liability) in accordance with the terms of the Contract; and by
b) Failing to make TOTAL and its employees additional insureds on the Contract’s
required minimum insurance policies.
3 KINDER MORGAN’s breaches of the Contract caused TOTAL damages by
depriving TOTAL and its employees of primary and non-contributory coverage of the underlying
claims arising out of the fatal injury of Gary Counts. Further, pursuant to its insurance policy
issued to TOTAL, CHUBB is subrogated to TOTAL’s right to recover for KINDER MORGAN’ s
contractual breaches as set forth herein.
4 The Court further finds that TOTAL’s damages for the foregoing breaches of
contract are limited to the $6 million minimum policy limits required by the terms of the Contract.
Specifically, the Court adopts KINDER MORGAN’ interpretation of the contract’s terms on this
point because, without limitation: a) its obligation to provide insurance coverage extends (per
Article 9 of the Contract) to the “insurance coverage as set forth on Exhibit ‘X’”; (b) the
requirement to name TOTAL an additional insured likewise relates to those policies “[a]s outlined
in greater detail in Exhibit X” and, per Section 1.3 of Exhibit X, “to the extent required by the
Contract ”: (c) Exhibit X references neither KINDER MORGAN’s $10 million self-insured
retention nor its $25 million excess (umbrella) liability coverage (which, undisputedly, is not
“follow form” of the required CGL coverage), and (d) Section 1.3(b) of Exhibit X clarifies that it
is the “coverage provided to the Additional Insureds by [KINDER MORGAN’s] insurance under
this Contract” that must be primary and non-contributory. (Emphasis added.)
5 TOTAL’s interpretation of the Crane Contract’s additional requirements effectively
reads the prefatory phrase — “[a]s outlined in greater detail in Exhibit X” — out of the contract,
contrary to Texas law. The Court further finds that Article 9’s phrase, “whether required hereby,”
modifies the immediately preceding exclusion respecting Worker’s Compensation and Employer’
[sic] Liability coverages rather than the more distance reference to “all insurance carried by
[KINDER MORGAN]” [as outlined in Exhibit X].
6 Accordingly, and to the extent described above, KINDER MORGAN’s MPS] is
hereby GRANTED in part, and TOTAL’s MFSJ is hereby DENIED in part, with respect to the
question whether TOTAL may recover more than $6 million on TOTAL’s breach of contract
claims against KINDER MORGAN as found by the Court.
7 It is, accordingly, ORDERED, ADJUDGED and DECREED that:
a) TOTAL and CHUBB shall recover from KINDER MORGAN actual damages in
the amount of $1,000,000.00 plus prejudgment at 5% per annum as and from
August 3, 2016 to the date of this Judgment; and
b) TOTAL and CHUBB shall have and recover from KINDER MORGAN post-
judgment interest on the above sums awarded herein at a rate of 5% per annum as
and from the date of this Judgment until the date said sums are paid in full.
8 Any relief requested by any party that is not granted herein is hereby DENIED.
This is a Final Judgment that is intended to dispose of all claims and all parties.
SIGNED this day of 2020.
Signed:
11/6/2020
Mabul Rey
PRESIDING JUDGE
* IT IS ORDERED that the Final Summary Judgment entered on August 25, 2020, is hereby set-aside and vacated and this Corrected Final
Summary Judgment is entered in its stead. Further, all pending post judgments motions, excepting Kinder Morgan's Motion to Correct
which is granted and effected herein, are hereby DENIED.
4822-5639-5724v.1
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9/24/2020 9:28:34 AM Marilyn Burgess - District Clerk Harris Count, Envelope No: 46523860 By: PATTON, JONATHAN R Filed: 9/24/2020 9:28:34 AM Pgs-4 CAUSE NO. 2017-48075 ENPTX TOTAL PETROCHEMICALS & IN THE DISTRICT COURT OF REFINING USA, INC. and ACE PROPERTY & CASUALTY INSURANCE COMPANY v. HARRIS COUNTY, TEXAS KINDER MORGAN PETCOKE, LP and KINDER MORGAN PETCOKE GP LLC 129th JUDICIAL DISTRICT CAUSE NO. 2017-48075 TOTAL PETROCHEMICALS & IN THE DISTRICT COURT OF REFINING USA, INC. and ACE PROPERTY & CASUALTY INSURANCE COMPANY Vv. HARRIS COUNTY, TEXAS KINDER MORGAN PETCOKE, LP and KINDER MORGAN PETCOKE GP LLC 164th JUDICIAL DISTRICT CORRECTED FINAL SUMMARY JUDGMENT ON THIS DAY the Court heard Plaintiff TOTAL Petrochemicals & Refining USA, Inc.’s (“TOTAL”) Motion for Final Summary Judgment against defendants Kinder Morgan Petcoke LP and its general partner, Kinder Morgan Petcoke GP LLC (together “KINDER MORGAN’), filed on July 30, 2019 (“MFSJ”); and KINDER MORGAN’s Motion for Partial Summary Judgment as to Damages (“MPSJ,” filed August 13, 2019). Having considered the foregoing motions, together with the parties’ several replies, sur-replies and letters to the Court, the arguments of counsel at the (Zoom) hearing held on May 5, 2020, and the Court’s prior interlocutory summary judgment Order in this matter (entered on August 17, 2019), which granted TOTAL’s and Ace Property & Casualty Insurance Company’s (“CHUBB”) motions for partial summary judgment on liability, the undersigned finds and rules as follows 1 KINDER MORGAN’s MPSJ is hereby DENIED in party. The Court finds, as a matter of law, that TOTAL’s damages as asserted herein are direct and not consequential; and, therefore, KINDER MORGAN’s affirmative defense based upon the contractual exclusion of liability for consequential damages in Article 23 of the Crane Contract (“the Contract”) fails as a matter of law 2 TOTAL’s MFSJ is hereby GRANTED in part. Specifically, the Court finds that (as previously ruled in the August 17, 2019 interlocutory Order) KINDER MORGAN breached the Contract by a) Failing to carry the required minimum insurance policies (not less than $1 million Commercial General Liability [CGL] and not less than $5 million follow form excess (umbrella) liability) in accordance with the terms of the Contract; and by b) Failing to make TOTAL and its employees additional insureds on the Contract’s required minimum insurance policies. 3 KINDER MORGAN’s breaches of the Contract caused TOTAL damages by depriving TOTAL and its employees of primary and non-contributory coverage of the underlying claims arising out of the fatal injury of Gary Counts. Further, pursuant to its insurance policy issued to TOTAL, CHUBB is subrogated to TOTAL’s right to recover for KINDER MORGAN’ s contractual breaches as set forth herein. 4 The Court further finds that TOTAL’s damages for the foregoing breaches of contract are limited to the $6 million minimum policy limits required by the terms of the Contract. Specifically, the Court adopts KINDER MORGAN’ interpretation of the contract’s terms on this point because, without limitation: a) its obligation to provide insurance coverage extends (per Article 9 of the Contract) to the “insurance coverage as set forth on Exhibit ‘X’”; (b) the requirement to name TOTAL an additional insured likewise relates to those policies “[a]s outlined in greater detail in Exhibit X” and, per Section 1.3 of Exhibit X, “to the extent required by the Contract ”: (c) Exhibit X references neither KINDER MORGAN’s $10 million self-insured retention nor its $25 million excess (umbrella) liability coverage (which, undisputedly, is not “follow form” of the required CGL coverage), and (d) Section 1.3(b) of Exhibit X clarifies that it is the “coverage provided to the Additional Insureds by [KINDER MORGAN’s] insurance under this Contract” that must be primary and non-contributory. (Emphasis added.) 5 TOTAL’s interpretation of the Crane Contract’s additional requirements effectively reads the prefatory phrase — “[a]s outlined in greater detail in Exhibit X” — out of the contract, contrary to Texas law. The Court further finds that Article 9’s phrase, “whether required hereby,” modifies the immediately preceding exclusion respecting Worker’s Compensation and Employer’ [sic] Liability coverages rather than the more distance reference to “all insurance carried by [KINDER MORGAN]” [as outlined in Exhibit X]. 6 Accordingly, and to the extent described above, KINDER MORGAN’s MPS] is hereby GRANTED in part, and TOTAL’s MFSJ is hereby DENIED in part, with respect to the question whether TOTAL may recover more than $6 million on TOTAL’s breach of contract claims against KINDER MORGAN as found by the Court. 7 It is, accordingly, ORDERED, ADJUDGED and DECREED that: a) TOTAL and CHUBB shall recover from KINDER MORGAN actual damages in the amount of $1,000,000.00 plus prejudgment at 5% per annum as and from August 3, 2016 to the date of this Judgment; and b) TOTAL and CHUBB shall have and recover from KINDER MORGAN post- judgment interest on the above sums awarded herein at a rate of 5% per annum as and from the date of this Judgment until the date said sums are paid in full. 8 Any relief requested by any party that is not granted herein is hereby DENIED. This is a Final Judgment that is intended to dispose of all claims and all parties. SIGNED this day of 2020. Signed: 11/6/2020 Mabul Rey PRESIDING JUDGE * IT IS ORDERED that the Final Summary Judgment entered on August 25, 2020, is hereby set-aside and vacated and this Corrected Final Summary Judgment is entered in its stead. Further, all pending post judgments motions, excepting Kinder Morgan's Motion to Correct which is granted and effected herein, are hereby DENIED. 4822-5639-5724v.1