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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
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 thJUDICIAL DISTRICT
KINDER MORGAN’S MOTION TO CORRECT THE JUDGMENT
Defendants Kinder Morgan Petcoke, LP and Kinder Morgan Petcoke GP LLC
(individually and/or collectively “Kinder Morgan”) file this Motion to Correct the Judgment as
follows:
SUMMARY
In its Final Summary Judgment Order dated August 25, 2020 (the “Order”), the
Court clearly states that it “finds 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.” It is
undisputed in the summary judgment record that Kinder Morgan already contributed
$5 million in
Apzil 2016 pursuant to a funding agreement with TOTAL. Therefore, Kinder Morgan respectfully
requests the Court correct the judgment to reflect Kinder Morgan’s previous contribution and
reduce the amount owed on the judgment to the remaining $1 million
of damages, as determined
by the Court, plus prejudgment interest on that $1 million.
ARGUMENTS AND AUTHORITIES
“A trial court... has plenary power to grant anew tial orto vacate, modify, correct,
or reform the judgment within thirty days after the judgement was signed.”
329b(d). This Court signed the Order on August 25, 2020, which is less than 30 days from the
date of this motion.
In the Order, the Court explained that TOTAL’s damages are limited to the
million minimum policy limits contained
within the Crane Contract. SeeOrder
at {4 and 6.
Tt is undisputed that Kinder Morgan already contributed $5 million, for which it
sought reimbursement in its Counterclaim. In its Answer to Kinder Morgan’s Counterclaim,
Plaintiffs expressly acknowledged
that Kinder Morgan already made
a partial payment
of the loss
(“[t]he payment made by Kinder Morgan amounts only
to a partial payment
of the loss caused by
the breach... .).” See Plaintiffs’ Original Answer to Defendants Kinder Morgan Petcoke, LP’s
Counterclaim at {| 1. In addition, TOTAL and CHUBB discuss Kinder Morgan's contribution
towards the funding of the settlement in the underlying case in detail in their Motion for Final
Summary Judgment. In its Motion for Final Summary Judgment, TOTAL acknowledges that it
“paid the full $5 millionthe maximum amount it owed under its primary fronting polic and
Chubb and Kinder Morgan funded the remainder of the settlement.” See Plaintiffs’ Final Motion
for Summary Judgment
at 6 (emphasis added). TOTAL goes on to state that “the First Amendment
By requesting only the conection of the amount of the judgment in this motion, Kinder Morgan is not
agreeing that it owes any damages and it not waiving any other arguments or remedies available to it at law or in
equity. Kinder Morgan merely soeiss to correct the amount of the judgment listed ser]. on the Court's reasoning in
the
Kinder Morgan did not receive notice of the order until September 21, 2020.
to the Settlement Funding Agreement establishes the dollar amounts each party paid.” Id.
(emphasis added)The First Amendment to the Funding Agreement is attached to TOTAL’s
motion as Exhibit H 1 and shows that Kinder Morgan agreed to pay $5 million. See Exhibit H
to Plaintiffs’ Motion for Final Summary Judgment (filed under seal), First Amendment to
Agreement to Fund a Settlement of Claims Against TOTAL at 2.
Inaddition
to seeking reimbursement of the $5 million Kinder Morgan already paid
through its counterclaim, Kinder Morgan also raised its prior payment in its Motion for Partial
Summary Judgment on Damages seeking a reduction of any award to Plaintiffs by the amount it
had already paid under the funding agreement. See Defendants’ Motion for Partial Summary
Judgment
as to Damages at 6. Kinder Morgan’ s request to reduce any award to the Plaintiffs by
the amount of its prior payment of $5 million is uncontested in the record. Notably, TOTAL and
CHUBB discuss the Funding Agreement and Kinder Morgan’ s prior payment
no less than thirty
times throughout its Pleadings, Motions for Summary Judgments, and Responses. TOTAL and.
Chubb even conclude their Motion for Final Summary Judgment with what it believes “gives
Kinder Morgan credit for the portion of the settlements that it funded” based on the totality of the
damages Plaintiffs claimed in the lawsuit. See TOTAL Petrochemicals and Refining U.S.A., Inc.’s
and Ace Property & Casualty Insurance Company’ s Motion for Final Summary Judgment at 12.
The Court’s Order concludes with ordering Kinder Morgan to pay $6 million
in
damages, plus prejudgment
interest on that amount. Based on the Court’s reasoning in the Order,
the $6 million
in damages should be reduced by the $5 million already paid. Therefore, the Order
Plaintiffs Ace Property & Casualty Insurance Company’ s Motionfor Partial Summary Judgment at 3 5, 18
21; Plaintiff
Ace Property & Casualty Insurance Company’ s Response to Defendants Kinder Morgan Petcoke, LP and
Kinder Morgan Petcoke GP, LLC’s Motion for Summary Judgment at 2, 10; Plaintiff’ s Original Answerto Defendant
Kinder Morgan Petcoke, LP’s Counterclaim at 1 2; TOTAL Petrochemicals and Refining U.S.A., Inc.’s and Ace
Property
& Casualty Insurance Company’
s Motion for Final Summary Judgment at 6 7, 11 12.
should only require Kinder Morgan to pay an additional $1 million in damages to the Plaintiffs,
plus prejudgment interest on that $1 million.
Although Kinder Morgan does not agree that it owes any damages or interest, it
believes there is an error in the amounts awarded based on the Court’s reasoning in the Order.
Therefore, Kinder Morgan requests the Court correct paragraph 7 of the Order to read:
“Ttis, accordingly, ORDERED, ADJUDGED and DECREED that:
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
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.”
CONCLUSION
The Court’ s Orderis clear that TOTAL’ s damages for breach of the Crane Contract
are limited
to $6 million. Itis undisputed and acknowledged by TOTAL in the summary judgment
record that Kinder Morgan has already paid $5 million, pursuant to the Funding Agreement
with
TOTAL, which Kinder Morgan sought to have reimbursed. See Exhibit H 1 to Plaintiffs’ Motion
for Final Summary Judgment (filed under seal), First Amendment
to Agreement to Fund a
Settlement of Claims Against TOTAL at 2. Therefore, under the Court’s express findings, the
judgment should be corrected to reduce the total remaining damages owed to Plaintiffs to
million, plus interest
on that amount, instead of requiring Kinder Morgan to pay what would.
amount to $11 million, plus interest in damages for breach of the Crane Contract.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants Kinder Morgan Petcoke, LP and
Kinder Morgan Petcoke GP LLC pray that their motion
to correct the judgment
be granted 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/ Jame
s M Bettis, Jr.
James M. Bettis, Jr.
State Bar No. 02268650
jbettis@munsch.com
D. Mitchell McFarland
State Bar No. 13597700
mamcfarand@mumsch.com
Justin K. Ratley
State Bar No.
jretley@munsch.com
700 Milam Street, Suite 2700
Houston, Texas 2806
Tel: (713) 222
Fax: (713) 222
BUTCH BOYD LAW FIRM
By: /s/ Butch Boyd, Jr.
Emest “Butch” Boyd Jr.
butchboyd@butchboydlawfirm.com
State Bar No. 00783694.
2905 Sackett St
Houston, Texas 77098
Tel: (713) 589
ATTORNEY S FOR DEFENDANTS,
KINDER MORGAN PETCOKE, LP AND
KINDER MORGAN PETCOKE GP, LLC
CERTIFICATE OF SERVICE
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 4th day of September, 2020:
Jack G. Camegie
LARK ILL TRASBURGER
909 Fannin, Suite 2300
Houston, Texas 77010
Jack.camegie@strasburger.com
Sarah R. Smith
EWIS RISBOIS ISGAARD MITH, LLP
24 East Greenway Plaza, Suite 1400
Houston, Texas 77046
Sarah.Smith@lewishrisbois.com
/s/ James M. Bettis, Jr.
James M. Bettis, Jr.
5103 9692v.1
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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 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 thJUDICIAL DISTRICT KINDER MORGAN’S MOTION TO CORRECT THE JUDGMENT Defendants Kinder Morgan Petcoke, LP and Kinder Morgan Petcoke GP LLC (individually and/or collectively “Kinder Morgan”) file this Motion to Correct the Judgment as follows: SUMMARY In its Final Summary Judgment Order dated August 25, 2020 (the “Order”), the Court clearly states that it “finds 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.” It is undisputed in the summary judgment record that Kinder Morgan already contributed $5 million in Apzil 2016 pursuant to a funding agreement with TOTAL. Therefore, Kinder Morgan respectfully requests the Court correct the judgment to reflect Kinder Morgan’s previous contribution and reduce the amount owed on the judgment to the remaining $1 million of damages, as determined by the Court, plus prejudgment interest on that $1 million. ARGUMENTS AND AUTHORITIES “A trial court... has plenary power to grant anew tial orto vacate, modify, correct, or reform the judgment within thirty days after the judgement was signed.” 329b(d). This Court signed the Order on August 25, 2020, which is less than 30 days from the date of this motion. In the Order, the Court explained that TOTAL’s damages are limited to the million minimum policy limits contained within the Crane Contract. SeeOrder at {4 and 6. Tt is undisputed that Kinder Morgan already contributed $5 million, for which it sought reimbursement in its Counterclaim. In its Answer to Kinder Morgan’s Counterclaim, Plaintiffs expressly acknowledged that Kinder Morgan already made a partial payment of the loss (“[t]he payment made by Kinder Morgan amounts only to a partial payment of the loss caused by the breach... .).” See Plaintiffs’ Original Answer to Defendants Kinder Morgan Petcoke, LP’s Counterclaim at {| 1. In addition, TOTAL and CHUBB discuss Kinder Morgan's contribution towards the funding of the settlement in the underlying case in detail in their Motion for Final Summary Judgment. In its Motion for Final Summary Judgment, TOTAL acknowledges that it “paid the full $5 millionthe maximum amount it owed under its primary fronting polic and Chubb and Kinder Morgan funded the remainder of the settlement.” See Plaintiffs’ Final Motion for Summary Judgment at 6 (emphasis added). TOTAL goes on to state that “the First Amendment By requesting only the conection of the amount of the judgment in this motion, Kinder Morgan is not agreeing that it owes any damages and it not waiving any other arguments or remedies available to it at law or in equity. Kinder Morgan merely soeiss to correct the amount of the judgment listed ser]. on the Court's reasoning in the Kinder Morgan did not receive notice of the order until September 21, 2020. to the Settlement Funding Agreement establishes the dollar amounts each party paid.” Id. (emphasis added)The First Amendment to the Funding Agreement is attached to TOTAL’s motion as Exhibit H 1 and shows that Kinder Morgan agreed to pay $5 million. See Exhibit H to Plaintiffs’ Motion for Final Summary Judgment (filed under seal), First Amendment to Agreement to Fund a Settlement of Claims Against TOTAL at 2. Inaddition to seeking reimbursement of the $5 million Kinder Morgan already paid through its counterclaim, Kinder Morgan also raised its prior payment in its Motion for Partial Summary Judgment on Damages seeking a reduction of any award to Plaintiffs by the amount it had already paid under the funding agreement. See Defendants’ Motion for Partial Summary Judgment as to Damages at 6. Kinder Morgan’ s request to reduce any award to the Plaintiffs by the amount of its prior payment of $5 million is uncontested in the record. Notably, TOTAL and CHUBB discuss the Funding Agreement and Kinder Morgan’ s prior payment no less than thirty times throughout its Pleadings, Motions for Summary Judgments, and Responses. TOTAL and. Chubb even conclude their Motion for Final Summary Judgment with what it believes “gives Kinder Morgan credit for the portion of the settlements that it funded” based on the totality of the damages Plaintiffs claimed in the lawsuit. See TOTAL Petrochemicals and Refining U.S.A., Inc.’s and Ace Property & Casualty Insurance Company’ s Motion for Final Summary Judgment at 12. The Court’s Order concludes with ordering Kinder Morgan to pay $6 million in damages, plus prejudgment interest on that amount. Based on the Court’s reasoning in the Order, the $6 million in damages should be reduced by the $5 million already paid. Therefore, the Order Plaintiffs Ace Property & Casualty Insurance Company’ s Motionfor Partial Summary Judgment at 3 5, 18 21; Plaintiff Ace Property & Casualty Insurance Company’ s Response to Defendants Kinder Morgan Petcoke, LP and Kinder Morgan Petcoke GP, LLC’s Motion for Summary Judgment at 2, 10; Plaintiff’ s Original Answerto Defendant Kinder Morgan Petcoke, LP’s Counterclaim at 1 2; TOTAL Petrochemicals and Refining U.S.A., Inc.’s and Ace Property & Casualty Insurance Company’ s Motion for Final Summary Judgment at 6 7, 11 12. should only require Kinder Morgan to pay an additional $1 million in damages to the Plaintiffs, plus prejudgment interest on that $1 million. Although Kinder Morgan does not agree that it owes any damages or interest, it believes there is an error in the amounts awarded based on the Court’s reasoning in the Order. Therefore, Kinder Morgan requests the Court correct paragraph 7 of the Order to read: “Ttis, accordingly, ORDERED, ADJUDGED and DECREED that: 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 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.” CONCLUSION The Court’ s Orderis clear that TOTAL’ s damages for breach of the Crane Contract are limited to $6 million. Itis undisputed and acknowledged by TOTAL in the summary judgment record that Kinder Morgan has already paid $5 million, pursuant to the Funding Agreement with TOTAL, which Kinder Morgan sought to have reimbursed. See Exhibit H 1 to Plaintiffs’ Motion for Final Summary Judgment (filed under seal), First Amendment to Agreement to Fund a Settlement of Claims Against TOTAL at 2. Therefore, under the Court’s express findings, the judgment should be corrected to reduce the total remaining damages owed to Plaintiffs to million, plus interest on that amount, instead of requiring Kinder Morgan to pay what would. amount to $11 million, plus interest in damages for breach of the Crane Contract. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants Kinder Morgan Petcoke, LP and Kinder Morgan Petcoke GP LLC pray that their motion to correct the judgment be granted 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/ Jame s M Bettis, Jr. James M. Bettis, Jr. State Bar No. 02268650 jbettis@munsch.com D. Mitchell McFarland State Bar No. 13597700 mamcfarand@mumsch.com Justin K. Ratley State Bar No. jretley@munsch.com 700 Milam Street, Suite 2700 Houston, Texas 2806 Tel: (713) 222 Fax: (713) 222 BUTCH BOYD LAW FIRM By: /s/ Butch Boyd, Jr. Emest “Butch” Boyd Jr. butchboyd@butchboydlawfirm.com State Bar No. 00783694. 2905 Sackett St Houston, Texas 77098 Tel: (713) 589 ATTORNEY S FOR DEFENDANTS, KINDER MORGAN PETCOKE, LP AND KINDER MORGAN PETCOKE GP, LLC CERTIFICATE OF SERVICE 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 4th day of September, 2020: Jack G. Camegie LARK ILL TRASBURGER 909 Fannin, Suite 2300 Houston, Texas 77010 Jack.camegie@strasburger.com Sarah R. Smith EWIS RISBOIS ISGAARD MITH, LLP 24 East Greenway Plaza, Suite 1400 Houston, Texas 77046 Sarah.Smith@lewishrisbois.com /s/ James M. Bettis, Jr. James M. Bettis, Jr. 5103 9692v.1