ACCEPTED
01-15-00715-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/21/2015 3:23:43 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00715-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE FIRST DISTRICT COURT OF APPEALS
8/21/2015 3:23:43 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
IN RE CVR ENERGY, INC. AND CVR REFINING, LP,
RELATORS
Original Proceeding
th
From the 268 Judicial District Court of Fort Bend County, Texas
Cause No. 2015-DCV-220330
The Honorable Brady G. Elliott, Presiding
PETITION FOR WRIT OF MANDAMUS
Phillip D. Sharp Lee M. Smithyman
State Bar No. 18118680 Kansas State Bar No. 09391
MARTIN, DISIERE, JEFFERSON & SMITHYMAN & ZAKOURA, CHARTERED
WISDOM, L.L.P. 750 Commerce Plaza II Building
808 Travis, 20th Floor 7400 West 110th Street
Houston, Texas 77002 Overland Park, Kansas 66210-2362
(713) 632-1700 – Telephone (913) 661-9800 – Telephone
(713) 222-0101 – Facsimile (913) 661-9861 – Facsimile
sharp@mdjwlaw.com lee@smizak-law.com
Application for pro hac admission
pending
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Relators/Defendants:
CVR Energy, Inc. and CVR Refining, LP
In the trial court, the relators/defendants are represented by the following
attorneys:
Phillip D. Sharp
State Bar No. 18118680
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
sharp@mdjwlaw.com
Lee M. Smithyman
Kansas State Bar No. 09391
SMITHYMAN & ZAKOURA, CHARTERED
750 Commerce Plaza II Building
7400 West 110th Street
Overland Park, Kansas 66210-2362
(913) 661-9800 – Telephone
(913) 661-9861 – Facsimile
lee@smizak-law.com
In this original proceeding, the relators/defendants are represented by the
following attorneys:
Mr. Sharp and Mr. Smithyman
i
Real Parties In Interest/Plaintiffs:
Donald R. Collier, Jennifer J. Collier, Dale A. Niemeyer, and Wendy
Niemeyer
In the trial court the real parties in interest/plaintiffs are represented by the
following attorneys:
Mr. Gary M. Riebschlager
State Bar No. 16902200
THE RIEBSCHLAGER LAW FIRM, PC
801 Congress, Suite 250
Houston, Texas 77002
Telephone: (713) 980-5300
Facsimile: (713) 583-5915
gary@riebschlagerlaw.com
Mr. Richard L. Tate
State Bar No. 19664460
Ms. Kristin Reis
State Bar No. 24060478
TATE, MOERER & KING, LLP
206 South 2nd Street
Richmond, Texas 77469
Telephone: (281) 341-0077
Facsimile: (281) 341-1003
rltate@tate-law.com
kreis@tate-law.com
ii
Respondent:
The Honorable Brady G. Elliott
268TH JUDICIAL DISTRICT COURT
FORT BEND COUNTY, TEXAS
1422 Eugene Heimann Circle
Room 30250, Courtroom 3D
Richmond, Texas 77469
Telephone: (281) 341-8610
Facsimile: unknown
E-mail: unknown
iii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL ............................................................i
TABLE OF CONTENTS .........................................................................................iv
TABLE OF AUTHORITIES ...................................................................................vi
STATEMENT OF THE CASE ................................................................................ix
STATEMENT REGARDING ORAL ARGUMENT ..............................................x
STATEMENT OF JURISDICTION.........................................................................x
STATEMENT OF FACTS .......................................................................................1
SUMMARY OF THE ARGUMENT .......................................................................6
ARGUMENT ............................................................................................................7
I. THE STANDARD FOR MANDAMUS RELIEF ON FORUM NON
CONVENIENS DECISIONS. ........................................................................7
II. THE DISTRICT COURT ABUSED ITS DISCRETION IN
DENYING RELATORS’ MOTION TO DISMISS FOR FORUM
NON CONVENIENS. ..................................................................................10
A. Consideration of Section 71.051 (b) Factors. ....................................12
1. Kansas is an Alternate Forum in Which the Claim or
Action May be Tried. ...............................................................12
2. Kansas is a Forum Which Provides an Adequate
Remedy. ...................................................................................13
3. Maintenance of the Claim or Action in Texas Would
Work a Substantial Injustice. ...................................................14
4. Kansas Can Exercise Jurisdiction Over Properly-Joined
Defendant. ................................................................................18
5. Balance of Private and Public Interests. ..................................18
iv
III. KANSAS LAW APPLIES TO THIS ACCIDENT. .....................................21
A. Restatement General Factors. .............................................................22
1. Needs of the Interstate and International Systems. ..................23
2. Relevant Policies of the Forum. ...............................................23
3. Relevant Policies and Interests of Other Interested States. .....24
4. Protection of Justified Expectations. .......................................24
6. Certainty, Predictability, and Uniformity of Result.................25
7. Ease in Determination and Application of the Law to be
Applied. ....................................................................................26
B. Restatement Specific Factors. ............................................................26
C. The Fact that Kansas Law is Different is Irrelevant. .........................27
IV. PLAINTIFFS' ARGUMENT THAT DEFENDANTS' NEGLIGENCE
OCCURRED IN TEXAS DOES NOT OVERCOME THE SECTION
71.051 FACTORS. .......................................................................................28
V. CONCLUSION & PRAYER........................................................................32
CERTIFICATION ..................................................................................................33
CERTIFICATE OF COMPLIANCE ......................................................................34
CERTIFICATE OF SERVICE ...............................................................................34
APPENDICES & RELATOR’S RECORD
v
TABLE OF AUTHORITIES
PAGE
Cases
Berg v. AMF, Inc.,
29 S.W.3d 212 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ................13, 28
Coca-Cola Co. v. Harmar Bottling Co.,
218 S.W.3d 671 (Tex. 2006) ...........................................................................7, 21
Duncan v. Perry Packing Co.,
162 Kan. 79 P.2d 78 (1946) ................................................................................23
Fugit v. United Beechcraft, Inc.,
222 Kan. 312, 564 P.2d 521 (1977) ....................................................................20
Gomez de Hernandez v. Bridgestone/Firestone N. Am. Tire, L.L.C.,
204 S.W .3d 473 (Tex. App.—Corpus Christi 2006, pet. denied) ......................28
Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) .............................................16
Gutierrez v. Collins,
583 S.W.2d 312 (Tex. 1979) .........................................................................21, 26
Hollingsworth v. Fehrs Equip. Co. of K.C.,
240 Kan. 398, 729 P.2d 1214 (1986) ..................................................................20
Hughes Wood Prods. v. Wagner,
18 S.W.3d 202, 205-206 (Tex. 2000)......................................................20, 22, 25
In re Arthur Andersen LLP,
121 S.W.3d 471 (Tex. App.—Houston [14th Dist.] 2003,
orig. proceeding) ...................................................................................................8
In re BPZ Res.,
359 S.W.3d 866 (Tex. App.—Houston [14th Dist.] 2012,
orig. proceeding) ......................................................................................... passim
vi
In re Dauajare-Johnson,
No. 14-14-00256-CV,
2014 WL 3401094 (Tex. App.—Houston [14th Dist.] July 10, 2014,
orig. proceeding) .....................................................................................12, 19, 26
In re Ensco Offshore Int’l Co.,
311 S.W.3d 921 (Tex. 2010) ....................................................................... passim
In re Gen. Elec. Co.,
271 S.W.3d 681 (Tex. 2008) ....................................................................... passim
In re Mantle Oil & Gas, LLC,
426 S.W.3d 182 (Tex. App.—Houston [1st Dist.] 2012,
orig. proceeding) ......................................................................................... passim
In re Omega Protein, Inc.,
288 S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2009, no pet.) ..................10, 17
In re Pirelli Tire, L.L.C.,
247 S.W.3d 670 (Tex. 2007) ....................................................................... passim
In re Team Rocket, L.P.,
256 S.W.3d 257 (Tex. 2008) .................................................................................8
Lalila v. Parker Drilling Co.,
No. 01-07-00281-CV, 2009 WL 618248
(Tex. App.—Houston [1st Dist.] Mar. 12, 2009, no pet.) ...................................13
Liberty Mut. Ins. Co. v. Transit Mix Concrete & Materials Co,
06-12-00117-CV, 2013 WL 3329026
(Tex. App.—Texarkana, Oct. 18, 2013, pet. denied)..............................13, 26, 27
Quixtar, Inc. v. Signature Mgmt. Team, LLC,
315 S.W.3d 28 (Tex. 2010) .................................................................................17
Sacks v. Four Seasons Hotel, Ltd.,
No. 5:04CV73, 2006 WL 783441 (E.D. Tex. Mar. 24, 2006) ............................23
Sammons & Berry P.C. v. Nat'l Indem. Co.,
No. 14-13-00070-CV, 2014 WL 3400713
(Tex. App.—Houston [14th Dist.] July 10, 2014, no pet.) .....................14, 19, 28
vii
Schippers v. Mazak Props., Inc.,
350 S.W.3d 294 (Tex. App.—San Antonio 2011, pet denied) .....................14, 16
Torrington v. Stutzman,
46 S.W.3d 829 (Tex. 2000) .................................................................................21
Vinmar Trade Fin., Ltd. v. Util. Trailers de Mexico,
336 S.W.3d 664 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ....13, 19, 21, 26
Zermeno v. McDonnell Douglas Corp.,
246 F. Supp. 2d 646 (S.D. Tex. 2003) ................................................................21
Statutes
K.S.A. § 44-501 ........................................................................................................2
K.S.A. § 44-501b(d)..........................................................................................20, 23
K.S.A. § 60-258a.....................................................................................................14
K.S.A. § 60-513a(4) ................................................................................................14
TEX. CIV. PRAC. & REM. CODE § 71.051......................................................... passim
TEX. GOV'T CODE § 22.221(b) ...................................................................................x
Other Authorities
P.I.K.4th § 171.02 ...................................................................................................14
RESTATEMENT (SECOND) CONFLICT OF LAWS § 145 .........................................22, 26
RESTATEMENT (SECOND) CONFLICT OF LAWS § 6 ...................................................22
TEX. CONST. art. V § 6 ..............................................................................................x
Rules
TEX. R. CIV. P. 176.3(a) ..........................................................................................15
TEX. R. CIV. P. 52 ......................................................................................................x
viii
STATEMENT OF THE CASE
Relators' Petition for a Writ of Mandamus addresses Judge Elliott's denial of
a motion to dismiss for forum non conveniens pursuant to Section 71.051 of the
Texas Civil Practice and Remedies Code in the 268th Judicial District Court of
Fort Bend County, Texas.
Real Parties in Interest are the plaintiffs in a Fort Bend County civil suit for
damages sustained by Donald Collier and Dale Niemeyer in a Coffeyville, Kansas
refinery fire, caused by a pump seal leak, during their Kansas employment with
Coffeyville Resources Refining & Marketing, LLC (“CRRM”). Relators, who are
the named Defendants, are parent companies with an equity interest in CRRM.
The Respondent is the Honorable Brady G. Elliott.
Plaintiffs' Original Petition was filed on January 12, 2015; service was
obtained on May 18, 2015. Relators filed their Motion to Dismiss for forum non
conveniens on June 1, 2015 because:
(1) virtually all material witnesses and evidence regarding the
accident are located in Kansas;
(2) Kansas law applies to the Kansas accident; and
(3) the Plaintiffs reside in Independence, Kansas and the adjacent
South Coffeyville, Oklahoma.
Judge Elliott denied said Motion on August 7, 2015.
ix
STATEMENT REGARDING ORAL ARGUMENT
The relators respectfully suggest that the Court should grant oral argument.
This case requires detailed analysis of the Texas forum non conveniens statute, the
facts, and Kansas law. Oral argument will provide the Court helpful elaboration on
the issues, which are detailed and particular.
STATEMENT OF JURISDICTION
This Court has jurisdiction to issue a writ of mandamus in this case under
Article V, Section 6 of the Texas Constitution, Section 22.221(b) of the Texas
Government Code, and Rule 52 of the Texas Rules of Appellate Procedure.
ISSUE PRESENTED
Did the district court abuse its discretion by denying a motion to dismiss for
forum non conveniens where the evidence established (1) the real parties in interest
are residents of Kansas and Oklahoma, (2) the real parties in interest were injured
in a fire occurring in Kansas during the course and scope of their employment in a
Kansas refinery, and (3) virtually all witnesses and evidence surrounding the cause
of the fire, the events occurring during and after the fire, and damages are located
in Kansas and Oklahoma, outside subpoena range of the Fort Bend County, Texas
trial court.
x
STATEMENT OF FACTS
1. Real Parties in Interest/Plaintiffs Donald R. Collier and Jennifer J.
Collier are individuals who reside in Independence, Kansas. RR Tab 4 at 1.1
2. Real Parties In Interest/Plaintiffs Dale A. Niemeyer and Wendy
Niemeyer are individuals who reside in South Coffeyville, Oklahoma, which is
immediately adjacent to Coffeyville, Kansas. RR Tab 4 at 1.
3. The Plaintiffs filed their Original Petition on January 12, 2015. RR
Tab 4 at 1.
4. The Relator Defendants, CVR Energy, Inc. and CVR Refining, LP
(collectively, “CVR”), were served on or about May 18, 2015. RR Tab 3 at 2.
5. The Plaintiffs' causes of action address work injuries sustained in an
accident by Mr. Collier and Mr. Niemeyer, which occurred in the Coffeyville
Refinery, located in Coffeyville, Kansas. RR Tab 4 at 2-3.
6. Mr. Collier and Mr. Niemeyer are employees of Coffeyville
Resources Refining & Marketing, LLC (“CRRM”), which is a subsidiary of these
Relators. RR Tab 4 at 3.
1
For ease of reference, the Appendix and Relator’s Record is cited as “RR Tab [Number] at
[Page Number].”
1
7. CRRM is alleged to be a wholly-owned subsidiary of CVR. RR Tab 4
at 3.2
8. Mr. Collier and Mr. Niemeyer received workers' compensation
benefits pursuant to the Kansas Workers' Compensation Act, K.S.A. 44-501, et.
seq. RR Tab 7 at Ex. 1.
9. Plaintiffs allege that the fire resulted when “a critical leak occurred on
a pump in the Isometric Unit of the Refinery.” RR Tab 4 at 3.
10. Plaintiffs allege that because CRRM is a wholly-owned subsidiary of
CVR, CVR is liable for the torts of CRRM. 3 RR Tab 4 at 3-4.
11. Plaintiffs allege that CVR committed unspecified acts of negligence.
Paragraph 19 of their Petition states:
On the occasion in question, CVR, by and through their officers,
employees, agents and representatives, independently committed acts
of omission and commission which collectively and severally
constitute negligence that proximately caused the deaths of plaintiffs'
decedents and damages to Plaintiffs. CVR failed. CVR's failure is
negligence as defined above.4
2
That allegation is inaccurate, CRRM is a wholly-owned subsidiary of CVR Refining, LP. CVR
Energy, Inc. owns the General Partner and 66% of the Limited Partner units of CVR Refining,
LP; hence, CRRM is not a wholly-owned subsidiary of CVR Energy, Inc. RR Tab 7 at Ex. 1.
3
See fn. 2 above. Independent of the factual inaccuracy, wholly-owned status does not result in
the liability of a parent or owner as a matter of law. Abdel-Fattah v. Pepsico, Inc., 948 S.W.2d
381, 384 (Tex. App.-Houston [14th Dist.] 1997, no writ).
4
The allegation is inaccurate; neither Mr. Collier nor Mr. Niemeyer died in the fire and no
wrongful death case is being pursued. See RR Tab 4.
2
12. Plaintiffs also allege that CVR committed acts of gross negligence,
without further specification. RR Tab 4 at 4.
Defendants' acts and omission are of such a character as to lead to the
conclusion that they not only constitute negligence, but rise to the
level of gross negligence/malice. Defendants acted with conscious
indifference to the rights, safety and welfare of Donald R. Collier and
Dale A. Niemeyer, and proximately caused their injuries through the
enumerated acts or omissions.
RR Tab 4 at 4.
13. On June 1, 2015, twelve days after service upon them, Relators filed
their motion to dismiss for forum non conveniens pursuant to section 71.051 of the
Texas Civil Practice and Remedies Code. RR Tab 6.
14. On July 6, 2015, Relators responded to Plaintiffs' Rule 194 Request
for Disclosure by identifying 34 potential witnesses with knowledge of the relevant
facts associated with the accidental fire. RR Tab 8. Of those witnesses identified:
(i) Twenty-nine are residents of Kansas,
(ii) Three are residents of Oklahoma or Missouri,
(iii) Two (one being an expert) are residents of Texas.
RR Tab 8 at Ex. 1 at 4-10.
15. Relators' Rule 194 disclosures identified CRRM, which owns the
refinery located in Coffeyville, Kansas, as a responsible third party (“RTP”). RR
Tab 8 at Ex. 1 at 11.
3
16. While emergency medical technicians (EMTs), police officers and
firemen have not yet been identified, all emergency responders to the Kansas fire
are likely from the Coffeyville, Kansas area. To the best of Relators' belief, all
healthcare providers are located in Kansas, or adjacent areas of Oklahoma and
Missouri. To Relators' knowledge, there are no Texas healthcare providers
associated with the care and treatment of Mr. Collier or Mr. Niemeyer.
17. On August 7, 2015, the date the motion to dismiss was orally argued,
the Plaintiffs filed a Supplemental Petition to also allege:
In addition to the allegations previously pled, Plaintiffs allege that
Defendants were independently negligent in the performance of their
duties under the Management Services Agreement proximately
causing Plaintiffs damages and injuries as previously pled.
RR Tab 10 at 1.5
18. By the terms of that Services Agreement (RR Tab 11), the
Relators agreed that:
(i.) They were amenable to legal proceedings brought in the
State of Kansas (RR Tab 11 at ¶ 10.08);
(ii) The agreement would be governed by Kansas law (RR
Tab 11 at ¶ 10.07); and
(iii) The agreement’s provisions would create no rights for
alleged third party beneficiaries (RR Tab 11 at ¶ 10.05).
5
The referenced Services Agreement is found at RR Tab 11.
4
19. Judge Elliott denied Relators’ motion to dismiss for forum non
conveniens on the record at the conclusion of August 7 oral argument. RR Tab 2
at 33 (“On the issue that I have to decide on today, I’m going to deny your
motion.”).
20. CVR Energy, Inc. and CVR Refining, LP, are in good standing with
and registered to do business in Kansas. RR Tab 8 at Ex. 1, ¶¶ 8-9. Both are
amenable to service of process through their registered agent in Kansas. See id.
21. The pump which experienced a seal failure is estimated to weigh
1,000 pounds and is stored in Coffeyville, Kansas. RR Tab 8 at Ex. 1, ¶¶ 8-9.
5
SUMMARY OF THE ARGUMENT
The district court abused its discretion by denying the relators’ motion to
dismiss for forum non conveniens where the evidence presented to the district
court established that Texas is an inconvenient forum to try the underlying lawsuit.
Specifically, as required by Section 71.051 of the Civil Practice and Remedies
Code, the evidence established (1) Kansas is an alternate forum in which the
underlying lawsuit may be tried; (2) Kansas law provides an adequate remedy to
the real parties in interest; (3) that maintenance of the lawsuit in Texas would work
a substantial injustice to the relators as witnesses necessary to the defense are
outside the district court’s subpoena power; (4) Kansas can exercise jurisdiction
over all the defendants in the underlying lawsuit, as well as the designated
responsible third party; and (5) that dismissal of the underlying lawsuit in order to
allow the case to proceed in Kansas would not result in unreasonable duplication or
proliferation of litigation. See Tex. Civ. Prac. & Rem. Code § 71.051.
The balance of private interests of the parties, as well as the public interest
of Texas and Kansas favor the dismissal of the underlying lawsuit in Texas in
order to allow the Kansas judicial system to assert jurisdiction. Texas has no
public interest in taxing its citizens and judicial system to adjudicate claims of
Kansas and Oklahoma citizens injured in a fire occurring in Coffeyville, Kansas.
Moreover, this case concerns novel issues of Kansas law, specifically, whether
6
Kansas workers’ compensation law bars employees of a subsidiary entity from
suing the subsidiary’s parents. Comity requires dismissal of the Texas action to
allow the Kansas judicial system to define the scope of its own laws. See Coca-
Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 680-82 (Tex. 2006).
The evidence simply does not support the district court’s conclusion that
Texas is a proper and convenient forum. The Court should direct the district court
to vacate its order denying the relators’ motion to dismiss for forum non
conveniens and instruct it to dismiss the underlying lawsuit in order to allow the
suit to proceed in the courts of Kansas. See Tex. Civ. Prac. & Rem. Code
§ 71.051.
ARGUMENT
I. THE STANDARD FOR MANDAMUS RELIEF ON FORUM NON
CONVENIENS DECISIONS.
A district court’s decision to deny a motion to dismiss for forum non
conveniens is reviewed for abuse of discretion. In re Gen. Elec. Co., 271 S.W.3d
681, 685 (Tex. 2008). The district court abuses its discretion if its decision is
arbitrary, unreasonable, or without reference to guiding principles. In re Pirelli
Tire, L.L.C., 247 S.W.3d 670, 676 (Tex. 2007). In applying the forum non
conveniens factors of section 71.051 of the Texas Civil Practice and Remedies
Code, “a trial court has no discretion in determining what the law is or in applying
the law to the particular facts.” In re Mantle Oil & Gas, LLC, 426 S.W.3d 182,
7
187 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); In re Brokers
Logistics, Ltd., 320 S.W.3d 402, 405 (Tex. App.—El Paso 2010, orig. proceeding)
(holding that a failure by the district court to analyze or apply the law correctly
constitutes an abuse of discretion); see also In re Arthur Andersen LLP, 121
S.W.3d 471, 476 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (“[A]s
to legal issues, an error amounting to an abuse of discretion can be as simple as
misinterpreting or misapplying the law.”).
Mandamus relief is appropriate to remedy an improper denial of a motion to
dismiss for forum non conveniens. See In re Ensco Offshore Int’l Co., 311 S.W.3d
921, 923, 929 (Tex. 2010); In re Mantle Oil & Gas, 426 S.W.3d at 187; In re
Omega Protein, Inc., 288 S.W.3d 17, 21 (Tex. App.—Houston [1st Dist.] 2009, no
pet.). Indeed, the Supreme Court specifically recognizes that “[a]n adequate
remedy by appeal does not exist when a motion to dismiss for forum non
conveniens is erroneously denied.” In re Gen. Elec. Co., 271 S.W.3d at 685.
Mandamus relief in the present situation will “spare litigants and the public
the time and money utterly wasted enduring eventual reversal of improperly
conducted proceedings.” In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.
2008). The benefits of mandamus review clearly outweigh the detriments. Here,
the grant of mandamus can prevent this Kansas based dispute, which is governed
by Kansas law, from proceeding in a Texas forum five hundred miles from the
8
location of the witnesses and evidence. Mandamus relief will spare the litigants
and the State of Texas from the waste of time and money preceding an eventual
reversal for improperly conducted proceedings. The judiciary and citizenry of
Texas should not be burdened to resolve a dispute involving a Kansas accident to
Kansas workers, governed by Kansas law, for which Kansas evidence is required.
Mandamus is an appropriate remedy where, as here, a district court abuses
its discretion in denying a motion to dismiss for forum non conveniens. See In re
Ensco Offshore Int’l Co., 311 S.W.3d 921, 929 (Tex. 2010) (granting mandamus,
despite defendants’ Dallas offices, where Australian citizen employed by
Australian company suffered fatal accident on drilling rig in Singapore waters); In
re Pirelli Tire, L.L.C., 247 S.W.3d 670, 676 (Tex. 2007) (granting mandamus in
Texas suit by Mexican citizens as survivors of Mexican citizen who died in
rollover accident on Mexican highway); In re Gen. Elec. Co., 271 S.W.3d 681, 694
(Tex. 2008) (granting mandamus where Maine citizen injured from asbestos
exposure at Maine jobsite filed suit against Texas companies that manufactured or
distributed asbestos); In re BPZ Res., 359 S.W.3d 866, 881 (Tex. App.—Houston
[14th Dist.] 2012, orig. proceeding (granting mandamus where Peruvian oil tanker
exploded off Peruvian coast, despite fact that Texas corporations were parents of
Peruvian company that owned oil production platform); In re Mantle Oil & Gas,
LLC, 426 S.W.3d 182, 187 (Tex. App.—Houston [1st Dist.] 2012, orig.
9
proceeding), (granting mandamus where Louisiana residents injured by a
Louisiana oil well blowout sued the Texas oil well operator in Texas); In re Omega
Protein, Inc., 288 S.W.3d 17, 21 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
(“We hold that an analysis incorporating the Gulf Oil factors strongly favors a
Virginia forum, where the plaintiff and the witnesses live, the documents are
housed, and the fishing vessel alleged to be unseaworthy docks.”).
II. THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING
RELATORS’ MOTION TO DISMISS FOR FORUM NON
CONVENIENS.
Upon receipt of a motion to dismiss due to forum non conveniens, the
district court must evaluate and analyze the section 71.051 factors in order to
determine whether to stay or dismiss the action. The forum non conveniens statute
does not place the burden of proof on either party. In re Ensco Offshore Int'l Co.,
311 S.W.3d at 927. To the extent evidence is necessary to support a party's
position, the trial court must base its decision on the greater weight of the
evidence. In re Gen. Elec. Co., 271 S.W.3d at 687. If the court determines that in
the interest of justice and for the convenience of the parties, the plaintiff's claim
would be more properly heard in a forum outside the state, the statute instructs that
“the court shall decline to exercise jurisdiction under the doctrine of forum non
conveniens and shall stay or dismiss the claim or action." Tex. Civ. Prac. & Rem.
Code § 71.051(b) (emphasis supplied).
10
Section 71.051(b) of the Texas Civil Practice & Remedies Code sets forth
the factors relevant to the inconvenient forum analysis, providing:
In determining whether to grant a motion to stay or dismiss an action
under the doctrine of forum non conveniens, the court shall consider
whether:
(1) an alternate forum exists in which the claim or action
may be tried;
(2) an alternative forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this
state would work a substantial injustice to the moving
party;
(4) the alternate forum, as a result of the submission of the
parties or otherwise, can exercise jurisdiction over all the
defendants properly joined to the plaintiff's claim;
(5) the balance of the private interests of the parties and the
public interest of the state predominate in favor of the
claim or action being brought in an alternate forum,
which shall include consideration of the extent to which
an injury or death resulted from acts or omissions that
occurred in this state; and
(6) the stay or dismissal would not result in unreasonable
duplication or proliferation of litigation.
Tex. Civ. Prac. & Rem. Code § 71.051(b).
The statute further provides:
The court shall dismiss a claim under Subsection (b) if the court finds
by a preponderance of the evidence that a party was joined solely for
the purpose of obtaining or maintaining jurisdiction in this state and
the party's claim would be more properly heard in a forum outside this
state.
11
Tex. Civ. Prac. & Rem. Code § 71.051(e) (emphasis supplied.). As noted by the
Texas Supreme Court: “The word ‘shall’ in the statute ‘requires dismissal of the
claim or action if the statutory factors weigh in favor of the claim or action being
more properly heard in a forum outside of Texas.’” In re Ensco Offshore Int'l Co.,
311 S.W.3d 921, 924 (Tex. 2010) (quoting In re Gen. Elec., 271 S.W.3d at 686.
A. Consideration of Section 71.051 (b) Factors.
Consideration of the section 71.051 factors reflects that Kansas is clearly an
appropriate and superior forum to resolve the issues presented by the underlying
litigation.
1. Kansas is an Alternate Forum in Which the Claim or
Action May be Tried.
“An alternate forum is one where the defendant is amenable to process.” In
re Ensco Offshore Int'l Co at 311 S.W.3d at 924; In re Gen. Elec. Co., 271 S.W.3d
at 687. A alternative forum is available when the entire case and all the parties can
come within the jurisdiction of that forum. Vinmar Trade Fin. Ltd., 336 S.W.3d at
674; In re Dauajare-Johnson, No. 14-14-00256-CV, 2014 WL 3401094 (Tex.
App.—Houston [14th Dist.] July 10, 2014, orig. proceeding). CVR Energy, Inc.
and CVR Refining, LP are registered to do business in Kansas and doing business
in Kansas. See RR Tab 8 at Ex 1. Thus, each Relator has a registered agent
amenable to process in the State of Kansas. See id.
12
2. Kansas is a Forum Which Provides an Adequate Remedy.
“An alternative forum is inadequate if the remedies that it offers are so
unsatisfactory that they really comprise no remedy at all.” In re Ensco, 311
S.W.3d at 924; In re Gen. Elec., 271 S.W.3d at 688; In re Mantle, 426 S.W.3d at
189. "That the substantive law of alternative forum may be less favorable to the
plaintiff is entitled to little, if any, weight." In re Pirelli Tire, 247 S.W.3d 670, at
678 (Tex. 2007). "An alternative forum is adequate if the parties will not be
deprived of all remedies or treated unfairly, even though they may not enjoy the
same benefits as they might receive in an American court." Vinmar Trade Fin.,
Ltd. v. Util. Trailers de Mexico, 336 S.W.3d 664, 674 (Tex. App.—Houston [1st
Dist.] 2010, no pet.).
In the recent past, Texas appellate courts have determined the following
forums provide adequate remedies: Mexico (Id.), Peru (In re BPZ Res., 359
S.W.3d at 879), Australia (In re Ensco, supra), Canada (Berg v. AMF, Inc., 29
S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2000, no pet.)), Bangladesh
(Lalila v. Parker Drilling Co., No. 01-07-00281-CV, 2009 WL 618248 (Tex.
App.—Houston [1st Dist.] Mar. 12, 2009, no pet.)), Louisiana (In re Mantle,
supra), Arkansas (Liberty Mut. Ins. Co. v. Transit Mix Concrete & Materials Co,
06-12-00117-CV, 2013 WL 3329026 at *10 (Tex. App.—Texarkana, Oct. 18,
2013, pet. denied)), Florida (Schippers v. Mazak Properties, Inc., 350 S.W.3d 294,
13
298 (Tex. App.—San Antonio 2011, pet denied)), and New Mexico (Sammons &
Berry P.C. v. Nat'l Indem. Co., No. 14-13-00070-CV, 2014 WL 3400713, at *5
(Tex. App.—Houston [14th Dist.] July 10, 2014, no pet.)).
Kansas has a comparative negligence statute similar to that of Texas. See
K.S.A. § 60-258a (RR Tab 13). Kansas has a two-year tort statute of limitations,
similar to Texas, for personal injuries. K.S.A. § 60-513a(4) (RR Tab 14). Kansas
permits full recovery of economic damages for bodily injury. See P.I.K.4th §
171.02 (RR Tab 15). As a sister state to Texas, Kansas provides similar causes of
action and remedies to its citizenry. Obviously, a Kansas forum will provide an
adequate remedy. See In re Ensco, 311 S.W.3d at 924
3. Maintenance of the Claim or Action in Texas Would Work
a Substantial Injustice.
The Real Parties in Interest premise jurisdiction and venue in Fort Bend
County upon the fact that the CVR Defendants operate a joint office in Sugar
Land, Texas. RR Tab 4 at 3. However, the location of this office is the only real
connection with Texas. As reflected in the Statement of Facts, virtually all
identified witnesses to the accident are residents of Coffeyville, Kansas, or South
Coffeyville, Oklahoma. 6 Common sense indicates that virtually all emergency
responders and healthcare providers are also from Kansas or Oklahoma. Only two
6
Plaintiffs identified four or five of Relators' employees who allegedly made management
decisions in Texas. These allegations are addressed in Section IV.
14
of the identified witnesses could be compelled to testify by Texas process: one
Sugar Land office worker investigated the incident and an identified expert
witness. See RR Tab 8. The healthcare providers attending to Mr. Collier and
Mr. Neimeyer would all reside in the Kansas and Oklahoma areas.
Texas Rule of Civil Procedure 176.3(a) states:
A person may not be required by subpoena to appear or produce
documents or other things in a county that is more than 150 miles
from where the person resides or is served.
The Texas Supreme Court has held that “the lack of compulsory process in Texas
for reaching the great majority of witnesses would be substantially unjust.” In re
Ensco, 311 S.W.3d at 921; In re Gen. Elec., 271 S.W.3d at 689. It is undisputed,
and indisputable, that witnesses residing in Kansas and Oklahoma are more than
150 miles from Fort Bend County, Texas. Accordingly, virtually none of the fact
witnesses can be compelled to testify. See Tex. R. Civ. P. 176.3(a). In General
Electric, the Texas Supreme Court emphasized that trial should proceed where the
witnesses and evidence are located:
. . . [T]he practical problems of trying a personal injury case hundreds
of miles from the scene of the occurrence, the place where the lay
witnesses reside, and where most other evidence is located is
manifest. . . . Reasonable access to witnesses and evidence is a
fundamental need in regard to any trial . . .
15
In re Gen. Elec., 271 S.W.3d at 691-92. See also In re BPZ Res., 359 S.W.3d at
879; Schippers v. Mazak Props., Inc., 350 S.W. 3d 294, 296 (Tex. App.—San
Antonio 2011, pet. denied).
In Judge Elliott's decision commentary, he noted that the witnesses of
Kansas could be available to his Court through deposition presentations, video
depositions, telephone testimony and the like. App Tab 2 at 9:24 - 12:20.
However, the U.S. Supreme Court has long instructed that “to fix the place of trial
at a point where litigants cannot compel personal attendance and may be forced to
try their case on deposition, is to create a condition not satisfactory to court, jury or
most litigants.” See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511, 67 S.Ct. 839, 91
L.Ed. 1055 (1947). Moreover, while the availability of such witnesses remains
speculative, trial presentation would certainly be impaired by days of reading
depositions, presenting videotape depositions or telephone testimony. Video
depositions have been commonly available for at least ten years. The
“substantially unjust” determinations of the Texas Supreme Court in Ensco (2010)
and General Electric (2008) were made at a time when video depositions were
established procedures.
This court may take judicial notice that Coffeyville is approximately 500
miles from Fort Bend County, Texas. Live testimony would require that each
16
witness travel more than 500 miles to testify. Travel and lodging costs would be
prohibitive.
Section 71.051 does not contain any language placing the burden of proof on
a particular party; instead, section 71.051 simply requires the trial court to consider
the factors, and it must do so to the extent the factors apply. In re Mantle Oil &
Gas, LLC, 426 S.W.3d at 188. To the extent necessary, the trial court must base its
decision on the weight of the evidence, and it is entitled to “take into account the
presence or absence of evidence as to some issue or position of a party.” Id.
Clearly, the weight of the evidence regarding compulsory witness testimony
favors dismissal in favor of Kansas. In re Gen. Elec. Co., 271 S.W.3d at 689
(“requiring parties to litigate a case . . . in Texas until it becomes clear that it is
‘impossible’ to defend the case due to unavailability of evidence and fact witnesses
because they are beyond the reach of compulsory process is a waste of private and
public resources.”).
Plaintiffs are not Texas residents. RR Tab 4 at 1. The forum non
conveniens doctrine “generally affords substantially less deference to a non
resident's forum choice.” In re Mantle, 426 S.W.3d at 188; In re Pirelli Tire, 247
S.W.3d at 675; In re Omega Protein, Inc., 288 S.W.3d at 21; Quixtar, Inc. v.
Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010). “Dismissal on
forum non conveniens grounds is appropriate where sufficient contacts between
17
the defendant and the forum state exist so as to confer personal jurisdiction, but the
case itself has no significant connection to the forum state.” In re Pirelli Tire, 247
S.W.3d at 675-76. “Allowing the suit to proceed in Texas simply because this
State may provide the most attractive or convenient forum for the plaintiffs, or
because plaintiffs rate Texas as the most advantageous forum as a matter of legal
strategy, is not justified where Texas has no stake in the outcome.” Id. at 682.
4. Kansas Can Exercise Jurisdiction Over Properly-Joined
Defendant.
As previously stated, the Relator Defendants are in good standing and
registered to do business in the State of Kansas. RR Tab 8 at Ex. 1, ¶¶ 8-9. As
such, both are amenable to service through their registered agent in Kansas. Id.
Thus, Kansas has jurisdiction over the Plaintiffs, these Relators, and the designated
responsible third party (CRRM). See id. It also has jurisdiction over the vast
majority of fact witnesses. See RR Tab 8 at Ex. 1 at 4-10.
5. Balance of Private and Public Interests.
(i) Private Interests of the Parties.
The pump which failed is estimated to weigh 1,000 pounds and is stored in
Coffeyville, Kansas. RR Tab 8 at Ex. 1, ¶¶ 8-9. Obviously, the site of the accident
and the related piping, machinery and facilities are all located within the
Coffeyville refinery. Jury access to the site of the accident and the equipment
exists in Kansas, not Texas. Thus, the private interests of the parties in the conduct
18
of trial in the jurisdiction where the accident occurred and machinery exists is
beneficial to both the parties and to the proper resolution of the litigation.
(ii) Public Interest of Texas.
This is an accident which occurred to Kansas residents, employed at a
Kansas place of business, through a Kansas employment relationship, for which
Kansas workers' compensation benefits were provided. See RR Tab 8 at Ex. 1, ¶¶
8-9. Texas has little, if any, relevance to the litigation. “It is fundamentally unfair
to burden the people of Texas with the cost of providing courts to hear cases that
have no significant connection with the State.” In re Mantle Oil & Gas, 426
S.W.3d at 189, 194-195; see also In re Dauajare-Johnson, No. 14–14–00256–CV,
2014 WL 3401094, at *11 (Tex. App.—Houston [14th Dist.] July 10, 2014, orig.
proceeding).
(iii) Public Interest of Kansas.
In In re Dauajare-Johnson, the Fourteenth Court of Appeals recognized that
"even the possibility that foreign law applies to a dispute is sufficient to warrant
dismissal on forum non conveniens grounds." 2014 WL 3401094 at *11; see also
Vinmar Trade Fin., Ltd., 336 S.W.3d at 679 (holding same); Sammons & Berry,
P.C., 2014 WL 3400713 at * 5 (holding same). As noted in Section III below,
Kansas law applies to this accident. See Section III. Because the Plaintiffs
received workers' compensation benefits pursuant to the Kansas Workers'
19
Compensation Act (RR Tab 8 at Ex. 1), there exists the issue of the extent to which
the Kansas workers' compensation immunity provided by K.S.A. 44-501b(d) will
protect parent companies. In Hughes Wood Products, Inc. v. Wagner, the Texas
Supreme Court stated:
Section 184 of the Restatement provides the standards by which a
court is to determine immunity from a tort suit when an employee is
covered by workers' compensation insurance . . . That section
provides:
Recovery for tort or wrongful death will not be permitted in any
state if the defendant is declared immune from such liability by
the workmen's compensation statute of a state under which the
defendant is required to provide insurance against the particular
risk and under which
(a) the plaintiff has obtained an award for the injury, or . . . .
18 S.W.3d 202, 205-06 (Tex. 2000) (citing RESTATEMENT (SECOND) OF CONFLICT
OF LAWS § 184). The issue of whether the stockholders or the equity interest
holders of an employer enjoy identical workers' compensation immunity, and what
the parameters and extent of that immunity might be, are matters of developing
Kansas law. Kansas provides workers’ compensation immunity to independent
contractors, providing work which “is necessarily inherent in and an integral part”
of the statutory employer’s trade or business. Hollingsworth v. Fehrs Equip. Co. of
K.C., 240 Kan. 398, 405, 729 P.2d 1214, 1219 (1986). However, that principle has
received limited examination in the context of a parent-subsidiary relationship.
See Fugit v. United Beechcraft, Inc., 222 Kan. 312, 315, 564 P.2d 521, 524 (1977).
20
Kansas has a keen and abiding interest in allowing its judicial system to address
and determine such issues, and such issues should not be determined by a district
court sitting in Fort Bend County, Texas, as a matter of comity. Coca-Cola Co. v.
Harmar Bottling Co., 218 S.W.3d 671, 680-82 (Tex. 2006) (“On occasion, comity
and choice of law may suggest that a Texas court should dismiss a claim in favor
of a foreign forum under principles of forum non conveniens.”).
III. KANSAS LAW APPLIES TO THIS ACCIDENT.
Where a foreign law governs the relief to be afforded by a lawsuit, such a
factor also weighs in favor of dismissal under the doctrine of forum non
conveniens. See Vinmar Trade Fin., Ltd., 336 S.W.3d at 678. As Kansas law
applies to the underlying litigation, this factor also shows the district court abused
its discretion by denying Relators’ motion to dismiss. Id.
Texas courts follow the "most significant relationship test" set out in the
Second Restatement of the Conflict of Laws to determine the applicable law in tort
cases where the injury occurred outside the state of Texas. See Zermeno v.
McDonnell Douglas Corp., 246 F. Supp. 2d 646, 655 (S.D. Tex. 2003) (citing
Torrington v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000)); Gutierrez v. Collins,
583 S.W.2d 312, 318 (Tex. 1979). Section 145 of the Restatement outlines the
factual matters to consider in applying the Section 6 principles to a given case. See
RESTATEMENT (SECOND) CONFLICT OF LAWS § 145. Applying the “most
21
significant relationship test,” the present facts compel the application of Kansas
substantive law to an employment accident for which workers' compensation was
provided. Hughes Wood Products v. Wagner, 18 S.W.3d at 205-06.
A. Restatement General Factors.
Section 6 of the Restatement identifies the general factors relevant to the
choice of law question. As the Court will see, an analysis of these considerations
weighs heavily in support of applying Kansas law:
(a) the needs of the interstate and international systems;
(b) the relevant policies of the forum;
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular
issue;
(d) the protection of the justified expectations;
(e) the basic policies underlying the particular field of law;
(f) certainty, predictability and uniformity of result; and
(g) ease in determination and application of the law to be applied.
See RESTATEMENT (SECOND) CONFLICT OF LAWS § 6.
22
1. Needs of the Interstate and International Systems.
The goal of this initial factor is to harmonize relations between the states and
to facilitate commercial activities between them. See Sacks v. Four Seasons Hotel,
Ltd., No. 5:04CV73, 2006 WL 783441 at *17 (E.D. Tex. Mar. 24, 2006). Statutory
workers' compensation immunity is the most significant difference between the
Kansas and Texas laws relevant to this case. Unlike Texas law, Kansas does not
allow plaintiffs to circumvent the workers' compensation immunity by allegations
of gross negligence. K.S.A. § 44-501b(d); see also Duncan v. Perry Packing Co.,
162 Kan. 79, 174 P.2d 78 (1946).
2. Relevant Policies of the Forum.
Texas is the site of the joint headquarters of CVR Energy, Inc. and CVR
Refining, LP, which possess an indirect equity interest in Plaintiffs' employer,
CRRM. See RR Tab 8 at Ex. 1; RR Tab 9 at Ex. 2. With that lone exception,
Texas has no recognizable interest in protecting Kansas citizens from Kansas
injuries occurring in Kansas by a company doing business in Kansas. See In re
Mantle Oil & Gas, 426 S.W.3d at 189, 194-195. The fire at issue occurred on the
premises of Coffeyville Resources Refining & Marketing, LLC's refinery, located
in Coffeyville, Kansas. See RR Tab 4 at 3. This Kansas fire harmed Kansas
residents who were full-time employees of their Kansas-based employer. Id. For
their injuries, the Kansas residents received Kansas workers' compensation. RR
23
Tab 8 at Ex. 1. Texas has no real interest in the litigation. See In re Mantle Oil &
Gas, 426 S.W.3d at 189, 194-195.
3. Relevant Policies and Interests of Other Interested States.
The relevant policies of Kansas impact this litigation. Kansas is the
residential state of Donald R. Collier and the state in which Dale A. Niemeyer is
employed. RR Tab 4 at 1-3. Kansas is the state where the employment
relationship between Mr. Collier, Mr. Niemeyer and Coffeyville Resources
Refining & Marketing, LLC ("CRRM") exists. See id. Kansas is the state where
the accident occurred. Id. Kansas law governed the payment of workers'
compensation benefits to Mr. Collier and Mr. Niemeyer and governs the
subrogation rights of CRRM and its insurer. RR Tab 8 at Ex. 1. Again, Texas has
no real interest in this matter. See In re Mantle Oil & Gas, 426 S.W.3d at 189,
194-195.
4. Protection of Justified Expectations.
According to comment (g) on Subsection 2 of Section 6 of the Restatement,
the protection of justified expectations is least appropriate in negligence cases.
Restatement (Second) Conflict of Laws § 6, cmt. (g). Specifically, comment (g)
states:
There are occasions, particularly on the area of negligence, when the
parties act without giving thought to the legal consequences of their
conduct or to the law that may be applied. In such situations, the
parties have no justified expectations to protect, and this factor can
24
play no part in the decision of a choice-of-law question. (Emphasis
added.)
Id. Moreover, there is no evidence that the real parties’ “justified
expectation” was that Texas law would apply to any injuries resulting from
their Kansas employment with CRRM.
5. Basic Policies Underlying the Particular Field of Law.
The workers' compensation policies of Texas have no relationship to the
instant litigation. Here, Kansas workers' compensation benefits were provided to
Kansas workers injured in Kansas. RR Tab 8 at Ex. 1. Kansas, not Texas, has the
immediate interest to insure that its public policies are correctly implemented to
regulate its employers and its employees.
6. Certainty, Predictability, and Uniformity of Result.
The principles of certainty, predictability and uniformity of result would be
furthered by application of Kansas law to this Kansas accident. Plaintiffs received
the statutory benefits available to them through the workers' compensation law of
Kansas. See RR Tab 8 at Ex. 1. Utilization of the statutory workers' compensation
immunity of the state in which the accident occurred is required to obtain a certain,
predictable and uniform result. Hughes Wood Products, Inc. v. Wagner, 18
S.W.3d at 205-206.
25
7. Ease in Determination and Application of the Law to be
Applied.
The application of Kansas law to this case is best accomplished by a Kansas
Court. Indeed, as courts recognize that “[e]ven the possibility that foreign law
applies to a dispute is sufficient to warrant dismissal on forum non conveniens
grounds,” the evidence establishes that the trial court abused its discretion in
denying the relators’ motion to dismiss. In re Dauajare-Johnson, 2014 WL
3401094 at *11; Vinmar, 336 S.W.3d at 679.
B. Restatement Specific Factors.
While Section 6 of the Restatement “sets out the general principles by which
the more specific rules are to be applied,” Section 145 of the Restatement provides
the more specific criteria applicable to a tort case. Gutierrez, 583 S.W.2d at 318-
19. Section 145 emphasizes the following four factors:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil[e], residence, nationality, place of incorporation and
place of business of the parties, and
(d) the place where the relationship, if any, between the parties is
centered.
Id. at 319 (quoting RESTATEMENT (SECOND) CONFLICTS OF LAW § 145).) See also,
Transit Mix Concrete & Materials Co., 2013 WL 3329026 at *5.
26
“In an action for a personal injury, the local law of the state where the injury
occurred determines the rights and liabilities of the parties . . .” Transit Mix
Concrete & Materials Co., 2013 WL 3329026 at *6. Here, the injuries occurred in
Kansas. RR Tab 4 at 3; RR Tab 7 at Ex. 1. The pump seal leak occurred in
Kansas. Id. The fire occurred in Kansas. Id. The conduct associated with the
pump seal leak and fire occurred in Kansas. Id. The domicile, residence, and
place of business of the parties is in Kansas. Id. The employment relationship
between Mr. Collier, Mr. Niemeyer and their employer exists in Kansas. Id.
Moreover, virtually all witnesses to the accident reside in Kansas. RR Tab 10 at
Ex. 1. How could the law of any other forum apply?
C. The Fact that Kansas Law is Different is Irrelevant.
Plaintiffs are likely to argue that the law of Kansas is different in many
respects. However, the fact “that the substantive law of the alternative forum may
be less favorable to the plaintiff is entitled to little, if any, weight” in a choice of
law or a forum non conveniens decision. In re Mantle Oil & Gas, LLC, 426
S.W.3d at 189 (Louisiana was an adequate alternative forum, despite the fact that
plaintiff's claims would be barred under the Louisiana statute of limitations and
punitive damages were not recoverable in Louisiana.); see also, In re Pirelli Tire,
LLC, 247 S.W.3d at 678.
27
In Sammons & Berry, P.C. v. Nat'l Indemnity Co., No. 14-13-00070-CV,
2014 WL 3400713 at * 5 (Tex. App.—Houston [14th Dist.] July 10, 2014, no pet.),
the Court stated:
[t]hat the substantive law of an alternative forum may be less
favorable to the plaintiff is entitled to little, if any, weight.” In re
Pirelli Tire, L.L.C., 247 S.W.3d at 678. Forum non conveniens
requires an available remedy in the alternative forum, but does not
require the same cause of action or equivalent relief be available. In re
Gen. Elec. Co., 271 S.W.3d at 687; In re Pirelli Tire, L.L.C., 247
S.W.3d at 678 (holding Mexico was adequate forum even though it
may not afford cause of action for strict liability, or provide for
“American–Style” discovery or right to jury); Berg v. AMF, Inc., 29
S.W.3d 212, 216–17 (Tex. App.—Houston [14th Dist.] 2000, no pet.)
(holding Canada was adequate forum although it “does not recognize
strict liability causes of action, has monetary limits on non-economic
damages, and only allows for recovery of punitive damages upon a
showing of intentional conduct”); Gomez de Hernandez v.
Bridgestone/Firestone North Am. Tire, L.L.C., 204 S.W .3d 473, 483
(Tex. App.—Corpus Christi 2006, pet. denied) (“The primary
consideration is whether the alternate forum entitles appellants to a
remedy for their losses, even if the compensation available under the
remedy is less than what may be recovered in a Texas court.”).
Here, the evidence established that Kansas law should be applied by a Kansas
court.
IV. PLAINTIFFS' ARGUMENT THAT DEFENDANTS' NEGLIGENCE
OCCURRED IN TEXAS DOES NOT OVERCOME THE SECTION
71.051 FACTORS.
Here, the Plaintiffs' Original Petition does not identify any specific acts of
negligence associated with the Relators. The closest identification of alleged
negligence is the allegation that Relators “committed acts of omission and
28
commission which collectively and severally constitute negligence” at paragraph
19 of the Petition. RR Tab 4 at 4. Plaintiffs further allege those “acts of omission
and commission” rose “to the level of gross negligence/malice” (RR Tab 4 at 4)
and, such negligence occurred in the performances of a Management Services
Agreement between the Relators and CRRM. RR Tab 10 at 1. No further
specification is provided.
Plaintiffs are presently without a specific theory of negligence against the
Relators. See RR Tab 4, 10. Plaintiffs clearly hope to develop a theory that
Relators' corporate decisions somehow affected the pump seal leak, and the Texas
law of gross negligence will allow them to circumvent the Kansas workers'
compensation immunity. See RR Tab 10. However, even these theories are
insufficient to avoid a dismissal on a forum non conveniens basis. Similar
arguments were presented and rejected in In re BPZ Resources, Inc., 359 S.W.3d
866, 870-80 (Tex. App.—Houston [14 Dist.] 2012, orig. proceeding):
Though the relators are Texas corporations who made allegedly
negligent decisions that allegedly led to the explosion on the Supe,
consideration of all the Lauritzen - Rhodits factors, we conclude as a
matter of law, that Peruvian law applies to the real parties’ claims. . . .
We presume, without deciding, that the relators made decisions in
Houston that were a legal cause of the explosion when they allegedly
ordered production on the platform to be “ramped up” to quickly
generate needed cash, even though they allegedly knew that the
operations involved dangerous procedures, insufficient equipment,
and unseaworthy vessels. Under this presumption, the real parties’
injuries would have resulted in part from acts or omissions that
29
occurred in Texas. Nonetheless, these alleged acts and omissions in
Texas would be a more remote cause of the real parties' injuries than
the alleged acts or omissions in Peru of Paolillo, the crew of the Supe,
and BPZ Peru. . . .
We conclude that the balance of the parties' private interests and the
public interest of the state predominate in favor of this action being
brought in a Peruvian court. [Citations omitted.]
Similar arguments received similar results in In re Mantle Oil & Gas, LLC, 426
S.W.3d 182, 195 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding), where
the plaintiffs contended that:
. . . because Mantle Oil is a Texas limited liability company and made
decisions regarding the operation of the well from its Texas
headquarters, Texas courts and juries have a "significant interest in
how [it] operates as a business. Essentially, the Alcee plaintiffs
claim that Mantle Oil negligently operated the Well from its
Texas headquarters which caused the blowout, and, therefore,
because the acts in Texas caused their damages, Texas has a local
interest in adjudicating this dispute. . . .”
(Emphasis supplied). The Mantle court rejected these arguments holding that the
plaintiffs were not Texas residents and Texas generally afforded “less deference to
a non resident's forum choice.” In re Mantle, 426 S.W.3d at 188. The court
further stated:
. . . it is undisputed that the Alcee plaintiffs are Louisiana residents,
that the blowout occurred in Louisiana, and that any alleged personal
injuries and property damage occurred in Louisiana. Louisiana has a
substantial interest in making sure that its citizens and their property
are not harmed by oil and gas operations within its borders.
30
Id. at 195. After noting that the witnesses and evidence were primarily in
Louisiana and that compulsory process was unavailable to compel witness
testimony in Texas, the court concluded:
It is fundamentally unfair to burden the people of Texas with
the cost of providing courts to hear cases that have no
significant connection with the state.
Id. at 189. Thus, arguments that the decisions of companies headquartered in
Texas caused or contributed to accidents in the out-of-state operations of affiliates
or subsidiaries have been rejected by the First and the Fourteenth Courts of
Appeals. In such cases, the courts of appeals dismissed the litigation upon the
forum non conveniens analysis statutorily enacted by Section 71.051 of the Texas
Civil Practice & Remedies Code reflecting the fundamental:
(1) need for reasonable access to out-of-state witnesses and
evidence,
(2) ease of having the out-of-state law administered by the
courts of that state, and
(3) burden which trial would place upon the people of Texas
for issues not significant to Texas.
See In re BPZ Resources, Inc., 359 S.W.3d at 870-80; see also In re Mantle, 426
S.W.3d at 188, 189
31
V. CONCLUSION & PRAYER.
The rulings of the Texas Supreme Court and the First and Fourteenth Courts
of Appeals present clear decisions on similar forum non conveniens issues. Those
decisions provide unmistakable binding guidance to the district court, which
guidance the district court ignored. Where Kansas residents were injured in a
Kansas accident performing work for their Kansas employer, the case should be
tried in Kansas under Kansas law. Kansas is the state of compulsory service;
Texas is not. Texas has little or no interest in the matter and Texas courts and
jurors should not be burdened with administering and resolving the litigation. The
cause of action should have been dismissed in favor of Kansas litigation pursuant
to Section 71.051(b) of the Texas Civil Practice and Remedies Code.
WHEREFORE, the Relators pray that this Court issue a Writ of Mandamus
requiring the 268th Judicial District Court of Fort Bend County, Texas to vacate its
order denying Relators’ motion to dismiss and to order the dismissal of the
underlying action pursuant to Section 71.051(b) of the Texas Civil Practice and
Remedies Code.
32
Respectfully submitted,
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
By: /s/ Philip D. Sharp
Phillip D. Sharp
Texas State Bar No. 18118680
808 Travis, 20th Floor
Houston, TX 77002
Telephone: (713) 632-1700
Facsimile: (713) 222-0101
Email: sharp@mdjwlaw.com
SMITHYMAN & ZAKOURA, CHARTERED
By: /s/ Lee M. Smithyman
Lee M. Smithyman
KS Supreme Court #09391
750 Commerce Plaza II
7400 West 110th Street
Overland Park, KS 66210-2362
Telephone: (913) 661-9800
Facsimile: (913) 661-9863
Email: lee@smizak-law.com
Application for pro hac admission pending
ATTORNEYS FOR RELATORS
CERTIFICATION
The undersigned has reviewed the petition and concluded that every factual
statement in the petition is supported by evidence included in the appendix.
/s/ Philip D. Sharp
Philip D. Sharp
33
CERTIFICATE OF COMPLIANCE
This is to certify that this computer-generated Petition for Writ of
Mandamus contains 7,453 words and complies with rule 9.4 of the Texas Rules of
Appellate Procedure.
/s/ Philip D. Sharp
Philip D. Sharp
Dated: August 21, 2015
CERTIFICATE OF SERVICE
I hereby certify that on this 21th day of August, 2015, a true and correct
copy of the Petition for Writ of Mandamus and Relator’s Record were sent by the
method indicated to the following individuals:
Gary M. Riebschlager Via Email gary@riebschlagerlaw.com
THE RIEBSCHLAGER LAW FIRM
801 Congress, Suite 250
Houston, TX 77002
Richard L. Tate Via Email: rltate@tate-law.com
Kristin Reis Via Email: kreis@tate-law.com
TATE, MOERER & KING, LLP
206 South Second Street
Richmond, TX 77469
/s/ Philip D. Sharp
Philip D. Sharp
34
APPENDIX & RELATOR’S RECORD
INDEX TO APPENDIX & RELATOR’S RECORD
Tab 1 Affidavit of P. Sharp
Tab 2 Transcript of August 7, 2015 Motion to Dismiss Hearing
with Ruling Denying Motion To Dismiss
Tab 3 Docket Sheet
Tab 4 Original Petition
Tab 5 Original Answer
Tab 6 Defendants’ Motion To Dismiss
Tab 7 Memorandum in Support of Defendants’ Motion To Dismiss
Tab 8 Supplemental Memorandum in Support of Defendants’
Motion To Dismiss
Tab 9 Plaintiffs’ Response To Motion To Dismiss
Tab 10 Plaintiffs’ Supplemental Petition
Tab 11 Services Agreement
Tab 12 Tex. Civ. Prac. & Rem. Code § 71.051
Tab 13 KSA 60-258a
Tab 14 KSA 60-513
Tab 15 Kansas Pattern Jury Instructions – 171.02
Tab 1
AFFIDAVIT OF PHILLIP SHARP
STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, on this day personally appeared Phillip
Sharp, being by me duly sworn upon his oath, and he deposed and stated as follows:
1. My name is Phillip Sharp. I am a resident of Harris County, Texas. I am over 21
years of age and have never been convicted of a felony or a crime involving moral
turpitude, nor have I ever been adjudged incompetent.
2. I am duly competent and qualified in all respects to make this affidavit and
everything stated within this affidavit is true and within my personal knowledge.
3. I represent Relators/Defendants, CVR Energy, Inc. and CVR Refining, LP
(collectively "CVR"), in this mandamus proceeding, which arises out of the trial
court cause no. 2015-DCV-220330 in the 268th District Court of Fort Bend
County, Texas (the "Underlying Proceeding"). I also represent CVR in the
Underlying Litigation.
4. I have personal knowledge from my representation of the Relators that the
following items in the Relators' Record are true and correct copies of the original
documents material to the Relators' claims and that were filed in the Underlying
Proceeding:
Tab 2: Transcript of August 7, 2015 Motion to Dismiss Hearing with
Ruling Denying Motion To Dismiss;
Tab 3: Docket Sheet;
Tab 4: Original Petition;
Tab 5: Original Answer;
Tab 6: Defendants' Motion To Dismiss;
Tab 7: Memorandum in Support of Defendants' Motion To Dismiss;
Tab 8: Supplemental Memorandum in Support of Defendants' Motion To
Dismiss;
Tab 9: Plaintiffs' Response To Motion To Dismiss;
Tab I O:Plaintiffs' Supplemental Petition.
I also have personal knowledge from my representation of the Relators that Tab
II: "Services Agreement" is a true and correct copy of an agreement between
CVR Refining, L.P., CVR Refining GP, LLC, and CVR Energy, Inc., which is
referenced in the Plaintiffs' Supplemental Petition filed in the Underlying
Proceeding, but which was not filed in the Underlying Proceeding itself.
5. I am authorized by the Relators to make this affidavit. I have read this affidavit
and it is true and correct. All matters st therein are within my personal
knowledge and are true and correct.
SWORN TO AND SUBSCRIBED BEFORE ME on this 20th day of August, 2015.
~~~~~~~~~~-~~~
KATHERINE M BOCCO Printed Name: 'Rtitben.M OJ. f>oce..o
NOTARY PUBLIC, STATE OF TEXAa
MY COMMISSION EXI'IRES
Notary Public in and for the State of Texas.
• FEB. 19, 2017 · My commission expires: z-/Cf -2-l) 11
Tab2
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME(S)
2 COURT OF APPEALS NO.
3 TRIAL COURT CAUSE NO. 15-DCV-220330
4 DONALD R. COLLIER, ) IN THE DISTRICT COURT OF
JENNIFER J. COLLIER, )
5 DALE A. NIEMEYER, AND )
WENDY NIEMEYER )
6 )
vs. ) FORT BEND COUNTY, T E X A S
7 )
CVR ENERGY, INC. AND )
8 CVR REFINING, L.P. ) 268TH JUDICIAL DISTRICT
9
10
11
MOTION TO DISMISS HEARING
12
13
14
15 On the 7th day of August, 2015, the following
16 proceedings came on to be held in the above-titled and
17 numbered cause before the Honorable Brady G. Elliott,
18 Judge Presiding, held in Richmond, Fort Bend County,
19 Texas.
20 Proceedings reported by Certified Shorthand Reporter
21 and Machine Shorthand/Computer-Aided Transcription.
22
23
24
25
Mary Nancy Capetillo, CSR, RPR, CRR
2
1 A P P E A R A N C E S
2
COUNSEL FOR THE PLAINTIFFS:
3
Richard Tate
4 Texas State Bar No. 19664460
E-mail: rltate@tate-law.com
5 Tate, Moerer & King, LLP
206 South Second Street
6 Richmond, Texas 77469
Telephone: {281) 341-0077
7
David Medina
8 Texas State Bar No. 00000088
5300 Memorial Drive, Suite 890
9 Houston, Texas 77007
Telephone: {713) 653-3147
10
11 COUNSEL FOR THE DEFENDANTS:
12 Lee Smithyman
Kansas Supreme Court No. 09391
13 E-mail: lee@smizak-law.com
Smithyman & Zakoura, Chartered
14 750 Commerce Plaza II
7400 West 110th Street
15 Overland Park, Kansas 66210
Telephone: {913) 661-9800
16
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19
20
21
22
23
24
25
Mary Nancy Capetillo, CSR, RPR, CRR
3
1 VOLUME 1
2 REPORTER'S RECORD
3 August 7, 2015
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7 Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1
8 Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 1
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Mary Nancy Capetillo, CSR, RPR, CRR
4
Reporter's Record
August 7, 2015
1 P R 0 C E E D I N G S
2 THE COURT: Collier, et al. versus CVR
3 Energy. Let's start off with the proposition that I
4 have read your pleadings relating to the motion to
5 dismiss and the response thereto. So, make your points.
6 MR. SMITHYMAN: Your Honor, I am Lee
7 Smithyman. I am counsel for the defendants -- the CVR
8 defendants in this case.
9 As you know from reading those pleadings,
10 this is a case on behalf of a Mr. Collier and a
11 Mr. Niemeyer. One is a resident of Coffeyville, Kansas;
12 the other of Coffeyville, Oklahoma, same town, just over
13 the line; and it relates to an accident that occurred in
14 their -- while they were employed at Coffeyville
15 Resources Marketing -- Refining & Marketing, a
16 subsidiary of the CVR defendants that are here in Sugar
17 Land.
18 It occurred because of a leak in a pump --
19 a rotating pump which created a vapor cloud which caused
20 a fire and caused the injuries to these men. It was a
21 workers' compensation injury during employment, and
22 workers' compensation benefits were provided by
23 Coffeyville Resources.
24 Coffeyville Resources is essentially --
25 it's a statutory employer; and it is a subsidiary of CVR
Mary Nancy Capetillo, CSR, RPR, CRR
5
Reporter's Record
August 7, 2015
1 Energy, which is here in Sugar Land; and it is
2 two-thirds owned by CVR Refining, which is another
3 limited liability -- actually a general partnership, but
4 it is -- pardon me -- a limited partnership. The
5 general partner is here also in Sugar Land. So it's
6 quite down the food chain, if you will.
7 A lawsuit has been filed here, and you --
8 if you have looked at the petition -- and the petition
9 is also shown as an exhibit to what was provided to
10 you -- the only allegation, negligence, occurs at
11 paragraph 19 of that which simply says that the accident
12 in Kansas occurred because of, quote, omissions and
13 commissions by the -- by CVR in the Sugar Land area.
14 So, essentially, that is the lawsuit; and
15 the issue before you is: Why would we burden your
16 judicial resources and 12 jurors here in Texas over an
17 accident that occurred in Kansas to Kansas residents
18 while in a Kansas employment relationship for a
19 Kansas-resident refinery? Why would we do that, take
20 care of that?
21 We filed a motion under Texas statute
22 71.051 for -- and asking you to dismiss for forum
23 non conveniens purposes because this is not a convenient
24 forum. There's a five-step test that is provided by
25 that statute, as you know from reading the pleadings;
Mary Nancy Capetillo, CSR, RPR, CRR
6
Reporter's Record
August 7, 2015
1 and the first one is: Does an alternate forum exist
2 where the claim can be tried?
3 And, essentially, that answer is, yes;
4 because these two defendants are registered to do
5 business in Kansas, doing business in Kansas, subject to
6 process in Kansas; and anything that can be done in
7 Texas can be done in Kansas as we go with that.
8 Does it have an adequate remedy?
9 Of course, it does. It's a sister state.
10 And as the Texas Supreme Court has said in In Re: ENSCO
11 and as the Fourteenth panel has stated in Sammons and
12 Sammons versus National Indemnity, the fact that the
13 remedy is not exactly the same doesn't matter. It's a
14 reasonable remedy. It should go forward.
15 The third question is: Would the
16 maintenance of a claim or an action in Texas work a
17 substantial injustice to the parties? This works
18 hand-in-glove with another issue which is the
19 public-interest factor. That's sort of the gulf factors
20 here.
21 We've provided a Rule 194 disclosure of
22 those witnesses that are available for this. There's 25
23 Kansas-resident witnesses, none of which are subject to
24 your -- to compulsory process from your court here
25 because you -- we can subpoena for a 150-mile area and
Mary Nancy Capetillo, CSR, RPR, CRR
7
Reporter's Record
August 7, 2015
1 so on. They're living and residing in different states.
2 So we have 25 resident witnesses not available to this
3 Court.
4 We have three identified Missouri and
5 Oklahoma witnesses. We have all of the physicians of
6 the health care personnel, the EMTs, the police. All
7 that were witnesses to this accident or aspects to this
8 accident are in Kansas or Missouri, one or -- maybe a
9 health care or two provider in Oklahoma; but they are
10 all -- they all have one characteristic. They're not
11 subject to process by this Court. That makes this very
12 inconvenient.
13 The Texas Supreme Court in In Re: ENSCO,
14 which was the first forum non conveniens decision to
15 really -- to sort of set the standard on the statute --
16 for non conveniens statute, said: Lack of compulsory
17 process in Texas is fundamentally unjust. They said
18 that in In Re: ENSCO when they upheld that case. They
19 also -- the Fourteenth Texas Court of Appeals said the
20 same thing in In Re: BPZ. We'll talk about it in a
21 minute. And the First District Court of Appeals in
22 Texas in In Re: Mantle reiterated that point.
23 We have established through that affidavit
24 and through our discovery on this that all of the
25 witnesses to the accident logically are in Kansas,
Mary Nancy Capetillo, CSR, RPR, CRR
8
Reporter's Record
August 7, 2015
1 Missouri, or Oklahoma. They're not here.
2 You then have to determine the balance of
3 the private interest of the parties and the public
4 interest of Texas. I've talked about the public
5 interest of Texas, the unfair burden to the judiciary
6 and to the citizens. In Re: Mantle talks about that; so
7 does In Re: BPZ; so does ENSCO.
8 One of the issues that's important in a
9 forum non conveniens determination is: What is the law
10 that will be applied? And many of the cases that were
11 cited to you here address that issue. And the reason is
12 it's inconvenient to the parties and to the Court to
13 apply the law of a different jurisdiction if it's
14 unnecessary.
15 THE COURT: Counsel, that reminds me of a
16 case I had over 20 years ago in which I interpreted the
17 Koran as it applied to the nation of Afghanistan, which
18 at that point in time was divided between two entities;
19 and the civil law of Russia applied to administering. I
20 didn't have any trouble interpreting those laws. I
21 think I can interpret Kansas laws.
22 MR. SMITHYMAN: Well, Your Honor --
23 THE COURT: Oh, by the way, it also
24 included the law of Louisiana. That was probably the
25 toughest to apply. But that's aside.
Mary Nancy Capetillo, CSR, RPR, CRR
9
Reporter's Record
August 7, 2015
1 MR. SMITHYMAN: I can assure you, Judge,
2 that the law -- if you can handle that, you can probably
3 handle Kansas law; and I concede that point; but it
4 be that as it may, Kansas has -- essentially is the
5 place where the injury occurred. It's where the conduct
6 causing the injury occurred. It's the domicile of the
7 plaintiffs, the domicile of the employer. It's where
8 everyone is. We have essentially no argument.
9 THE COURT: I don't want to make the
10 argument for the Defense; but as I'm reading your
11 pleadings, questions come to mind regarding these
12 various factors. And as you pointed out in your
13 argument, there are at least three states that you've
14 named that various parties, witnesses, and so forth are
15 involved in; but that's not uncommon.
16 I think one of the telling points to me
17 or one of the points that really flared up was one of
18 the examinations that you cited of the particular
19 tool/device/whatsoever that is the nexus of the cause of
20 the explosion was sent to Missouri to be examined by an
21 expert. So we've already involved at least three states
22 in this litigation that are not related to Texas but are
23 not related any more to Kansas than Texas is.
24 Why should I think that the location of
25 the various witnesses and parties over three states
Mary Nancy Capetillo, CSR, RPR, CRR
10
Reporter's Record
August 7, 2015
1 should be a critical factor in the determination I'm
2 going to make here?
3 MR. SMITHYMAN: Because they're not
4 subject to compulsory process here, and your Supreme
5 Court has said that the lack of compulsory process in
6 Texas is fundamentally unjust and --
7 THE COURT: Unfortunately, we live in the
8 year of 2015; and video examination is readily at hand
9 and constantly done. In fact, I did it in a med-mal
10 case not too long where the physician was in Tennessee.
11 So the fact that the witnesses can't be here in person
12 doesn't mean they're not available. Now I may not be
13 able to order them to be available; but as I've just
14 found from a course I took this -- early part of this
15 week, judges in different states are now talking to each
16 other.
17 MR. SMITHYMAN: Your Honor, I don't
18 disagree that ultimately videos would be used; but if
19 you've ever sat through three days of videos of various
20 people and looked at the glazed eyes of jurors, you know
21 that it is not a fundamentally good way to present
22 evidence to --
23 THE COURT: I will not argue that point
24 with you at all, Counsel; but that's the life we live in
25 right now. And, yes, it doesn't take but about ten
Mary Nancy Capetillo, CSR, RPR, CRR
11
Reporter's Record
August 7, 2015
1 minutes for a video deposition to put every juror
2 asleep, including the judge of the court, which y'all
3 have witnessed many times; but that's the world we live
4 in. I'll also point out places of refinery explosion;
5 and we're 50 miles from the largest concentration of
6 refineries in the United States, if not the world. So
7 experts and those who can testify are resulting -- are
8 certainly within the jurisdiction of this court. And I
9 guess those are the kind of questions that started
10 popping up as it related to your argument and these
11 decisions the Supreme Court of the State of Texas made
12 years ago, not that many years ago; but it all plays
13 into my making a decision.
14 I'd like you to respond to the fact that
15 technology has changed a lot about how we try cases.
16 MR. SMITHYMAN: Well, Your Honor, I will
17 tell you that videotaped depositions have been here for
18 ten years. I've been certainly doing it for ten years.
19 And every case that I have given to you has been decided
20 since 2010. In Re: ENSCO is 2010. The Mantle case is
21 2012.
22 THE COURT: I'll point out to you,
23 Counsel, that, in fact, I have had live testimony from
24 people that are outside of this area by whatever the
25 devices are that seem to have worked very well; and
Mary Nancy Capetillo, CSR, RPR, CRR
12
Reporter's Record
August 7, 2015
1 technology is in Kansas just as well as it is here. So
2 I'm not lessening the impact of what you're saying. I'm
3 just saying that in the world we live here today, in
4 2015, there are ways to present the case that is just as
5 effective as it would be in Kansas as here.
6 The witnesses may be in an office in
7 Kansas -- city of Kansas or wherever it may be, but
8 they'll be live in their testimony here. We're doing
9 that consistently and more frequently than I'd like to
10 think -- my gray hair never imagined -- but that seems
11 to put us in a different light than those cases do. So
12 I want you to focus in on specifically that technology
13 available, what it is that I can't do here that a Kansas
14 courtroom would be able to do.
15 MR. SMITHYMAN: You can't have the live
16 witnesses. You will have videos, you know, for days on
17 end. That is perhaps the biggest, but the issue of
18 convenience of this forum goes to issues of whether this
19 is appropriate here or more appropriately handled in
20 Kansas; and the interesting --
21 THE COURT: Let me interrupt you. We're
22 not going to be trying the Kansas workmen's comp case
23 here. May I presume that's correct?
24 MR. SMITHYMAN: No. Actually you may
25 have -- there may be legal defenses that are associated
Mary Nancy Capetillo, CSR, RPR, CRR
13
Reporter's Record
August 7, 2015
1 with the Kansas workers' compensation benefits.
2 THE COURT: I will give you that there are
3 some preemptive laws that apply in almost every state
4 that has workers' comp laws that would preempt the
5 ability of this Court to address the workers' comp
6 issues and the other issues that are going to be -- I
7 presume to be presented. Now I will give you that, but
8 refresh my memory. It's been a long time since I saw
9 Kansas law. Is there -- is there an overriding
10 preemptive provision in Kansas law that basically shuts
11 down all other tort actions?
12 MR. SMITHYMAN: Yes. Yes. And that
13 statute -- and it is entirely different from Texas.
14 Because in Texas one can circumvent the workers'
15 compensation immunity by alleging gross negligence and
16 establishing gross negligence. In Kansas that cannot be
17 done. That's one major, major difference here.
18 The second major difference is the
19 subrogation rights and how they -- they particularly
20 work in terms of what an employer's -- or his insurer's
21 subrogation rights are in that situation. Those are
22 different areas as well. There are -- there are --
23 there are a number of procedural differences in Kansas,
24 as you would imagine; but those are the -- those are the
25 most important ones, and certainly the issue of what is
Mary Nancy Capetillo, CSR, RPR, CRR
14
Reporter's Record
August 7, 2015
1 the -- what is the responsibility of a parent, because
2 it's nothing more than a stockholder or an equity holder
3 in a subsidiary. And corporations are formed in order
4 to shield liability and stop it. And so the issue then
5 becomes: What is the situation in that?
6 And that is something that will be
7 addressed very thoroughly with you, and that is an issue
8 that is going to be different in Kansas than it is in
9 Texas. And, frankly, I think that it would be difficult
10 for you to look at all those issues in Kansas and be
11 making decisions on a Kansas issue that is not really as
12 fully developed, candidly, in Kansas it is here in
13 Texas.
14 And if it should be developed, who should
15 develop it for Kansas? A Kansas court and go through
16 the Kansas courts of appeals. Why should we have a
17 Texas judge deciding that kind of an issue going through
18 the Texas courts of appeals as to what Kansas law would
19 be? That to me -- that is -- that is why, Your Honor,
20 when you go through those cases that the choice of law
21 and what law will be applied is always sort of in the
22 background and sometimes at the forefront talking about
23 those issues; and that's why, if that law is to be
24 applied, it's very strong. Your Honor --
25 THE COURT: So it's not uncommon that we
Mary Nancy Capetillo, CSR, RPR, CRR
15
Reporter's Record
August 7, 2015
1 apply other states' laws to cases that arise in Texas,
2 even Louisiana.
3 MR. SMITHYMAN: Even Louisiana. Even
4 Louisiana, but you know Louisiana --
5 THE COURT: Back in the day when I went to
6 law school, Louisiana was still heavily into the
7 Napoleonic Code.
8 MR. SMITHYMAN: And I am actually aware of
9 that; and, Your Honor, one of the most important cases
10 that governs this is a Louisiana case. It was In Re:
11 Mantle Oil & Gas, which is cited for you; and there's
12 two really important cases that were in the brief I
13 filed on Tuesday, I want to say; and it's in the back
14 section, the last two pages. One is In Re: Mantle. The
15 other is In Re: BPZ Resources.
16 In Re: Mantle had Louisiana plaintiffs
17 that sued over an oil well blow-out that injured them in
18 Louisiana. The interesting thing is that -- and the --
19 in that case there was a Texas employer, and they sued
20 here; and because that accident occurred in Louisiana
21 and you had Louisiana plaintiffs, it was kicked back to
22 Louisiana even though it was Louisiana law; and we all
23 know that that is the one state in the nation with --
24 that everything is different.
25 But, Your Honor, if you look at, like --
Mary Nancy Capetillo, CSR, RPR, CRR
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Reporter's Record
August 7, 2015
1 let me give you four cases here that I think, more than
2 any other, give you the strength of this -- these
3 concepts -- the vigor with which the Supreme Court and
4 the courts of appeals are enforcing this non conveniens
5 statute and doing it to ensure that we don't open up a
6 forum here in Texas for cases that really aren't for
7 Texas.
8 The best example is ENSCO Offshore, which
9 is the leading case. I'm sure you're aware of that.
10 That was an Australian plaintiff, Australian employer,
11 Australian accent -- accident, which is another rig that
12 blew up; and that used a Texas -- and they sued a Texas
13 parent here in Houston. And the Supreme Court said:
14 No. You have to dismiss on a forum non conveniens
15 basis. We've talked about In Re: Mantle.
16 In Re: BPZ Resources was a case with
17 Peruvian plaintiffs over a Peruvian rig -- actually a
18 ship -- tanker with a Peruvian employer; but, again, the
19 parent company was here in Houston; and that, too --
20 that, too, was dismissed; and it was -- the dismissal
21 upheld.
22 Finally, there is a second Fourteenth
23 district case that was decided in 2014. A Mexican
24 plaintiff over a contract with another Mexican who had
25 offices here in Texas is the defendant; and they said:
Mary Nancy Capetillo, CSR, RPR, CRR
17
Reporter's Record
August 7, 2015
1 No. This is really about what is occurring in Mexico,
2 and we should dismiss this in favor of the more
3 appropriate forum.
4 I've gone back through all these cases.
5 As you can imagine, this is a very important issue. I
6 think I can make one rather bold comment; and that is:
7 Every case that I have seen in the last eight years,
8 okay, all of them since the new statute of 2003 and its
9 revision, 2007, every one I've seen where the accident
10 occurred in a different jurisdiction from Texas and the
11 case is being brought by residents of that forum, not
12 Texans, the judge who dismissed it was upheld; and the
13 judge who retained jurisdiction was reversed. Every
14 single case. And that goes for all the ones I've talked
15 to you about as well as others that are in there such as
16 Liberty Mutual versus Transit Mix, Sammons versus
17 National Indemnity, Schippers versus Mazak Properties.
18 I was unable to find a case in which -- if
19 we cut to the chase in the biggest, broadest concepts
20 we've talked about all the little bit -- the place where
21 the accident occurred and everyone is injured, whatever
22 test you use, most significant relationship or whatever,
23 you end up with the law of the place where it occurred.
24 That's a critically important factor. Then you have the
25 residents that are there, and you have the defendants
Mary Nancy Capetillo, CSR, RPR, CRR
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Reporter's Record
August 7, 2015
1 doing business there. That is the logical place for the
2 forum, and there has not been a case in which a motion
3 to dismiss was granted in that situation where the judge
4 was reversed. There's not been a case where the judge
5 retained jurisdiction in which he was not reversed.
6 The Fourteenth district -- Court of
7 Appeals and the First Court of Appeals have generated
8 more decisions than anyone else because we're in Houston
9 and because of the oil industry and because we have
10 these serious accidents on rigs all around the world.
11 And because of that -- and they have followed ENS CO, the
12 decision of the Supreme Court, right down the line. So,
13 Your Honor, I would -- I would ask that you dismiss this
14 case; and I'm available for any other questions you
15 might have.
16 THE COURT: Mr. Tate?
17 MR. TATE: Well, Your Honor --
18 THE COURT: Tell me why. First, tell me
19 what the involvement of the Sugar Land corporations were
20 in the Kansas refinery that makes them more than just an
21 administrative operation. What will you be able to show
22 me in evidence that shows they had direct operating
23 control over that Kansas refinery?
24 MR. TATE: Thank you, Your Honor.
25 At the outset I will say two things, two
Mary Nancy Capetillo, CSR, RPR, CRR
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Reporter's Record
August 7, 2015
1 prefatory remarks. First of all, this morning I filed a
2 supplemental petition which supplements our existing
3 petition which just simply -- since he seemed to
4 complain that there wasn't enough specificity he
5 knows what our allegation is -- but essentially seemed
6 to complain there wasn't enough specificity. I said
7 that the Sugar Land defendants, CVR Energy, Inc. and CVR
8 Refining, were negligent in the performance of their
9 duties under the shared services agreement that they
10 undertake to provide management, operational, and
11 day-to-day operational control of their subsidiaries.
12 Now I'm going to come back to that because that is at
13 the heart of the answer to your question.
14 Secondly, I just -- I want to observe that
15 Mr. Smithyman has spent a large amount of his time
16 arguing that this case can't be conveniently tried here
17 and would need to be tried in Kansas because of the
18 location of witnesses and compulsory process.
19 Well, first of all, as the Court noticed,
20 he mentioned three states up there, Kansas, Oklahoma,
21 and Missouri; and Kansas can't force Oklahoma witnesses
22 to come to Kansas, nor can it force Missouri witnesses
23 to come to Kansas. So compulsory process is not
24 available in Kansas to reach those out-of-state
25 witnesses.
Mary Nancy Capetillo, CSR, RPR, CRR
20
Reporter's Record
August 7, 2015
1 In addition to that, there is going to
2 be -- the heart of this case -- the heart of this case
3 is going to be decisions made right here in Sugar Land,
4 Texas not to spend the money that was allocated in the
5 budget under a management of change forum to make the
6 specific improvement on this hydrogen separator that
7 would have prevented this accident. Now, I'm going to
8 come back to that in a minute; but he also --
9 THE COURT: Well, let's talk about that a
10 little.
11 MR. TATE: Okay.
12 THE COURT: And I perceived in the
13 pleadings that there was -- there's issues involving the
14 management direction of the Kansas refinery.
15 MR. TATE: Right.
16 THE COURT: In listening to what you just
17 said, there's certainly a difference between budget and
18 application of that budget.
19 MR. TATE: Right.
20 THE COURT: The negligence would have to
21 fall in that gray area in between and the degree of
22 control exercised by the Sugar Land company over the
23 Kansas refinery.
24 MR. TATE: Exactly, Your Honor. And
25 Exhibit --
Mary Nancy Capetillo, CSR, RPR, CRR
21
Reporter's Record
August 7, 2015
1 THE COURT: And I think -- and I'm sure
2 you perceive where I'm going. If that is going to be
3 the primary issue, then that may drive a decision here;
4 or it may drive a decision to Kansas because, "Okay. We
5 need to do this"; and the Kansas operators' not doing it
6 is entirely two different things.
7 MR. TATE: Well, the Kansas operators
8 can't do it until Sugar Land tells them to. Exhibit F,
9 Your Honor, to our -- to our response is an excerpt from
10 Form 10-Q for CVR Refining, Inc.; and it discusses in
11 very small print the shared services agreement and the
12 responsibilities that CVR Energy and CVR Refining
13 undertake under the management services agreement to
14 provide daily day-to-day operations and supervision of
15 the operations of their -- of the Coffeyville refinery
16 and the Wynnewood refinery which incidentally is the
17 subject of the lawsuit down in Judge Shoemake's court.
18 THE COURT: "Operational" I perceive to
19 be, "I'm the guy on the ground; I'm the guy who tells
20 the guy to turn it off."
21 MR. TATE: Yes.
22 THE COURT: Administrative may
23 differentiate in saying, "This is our rules and
24 regulations. You have to follow them." There's a gap
25 there.
Mary Nancy Capetillo, CSR, RPR, CRR
22
Reporter's Record
August 7, 2015
1 MR. TATE: No.
2 THE COURT: And that is an important gap
3 because that determines in my mind whether this should
4 be a Kansas case or this should be a Texas case.
5 MR. TATE: Operations includes the guy in
6 Kansas who decides -- who implements -- who implements
7 the improvement, the change, the modification to the
8 hydrogen separator that was -- that failed in this case
9 and caused a fire.
10 He can't make that decision. He can't
11 turn that -- he can't, you know, turn the wrench to
12 start that operation until he's given permission from
13 the man in Sugar Land to do it; and that's what the
14 deposition testimony attached as Exhibit H to our -- to
15 our motion shows. He's -- Mr. Hogan is the treasurer of
16 the company, and he shows -- he says that all decisions
17 are made out of Sugar Land in that deposition testimony.
18 THE COURT: Show me.
19 MR. TATE: It starts here, and he
20 discusses all the things that they do out of Sugar Land.
21 THE COURT: Do you have that handy,
22 Counsel?
23 MR. SMITHYMAN: I do.
24 MR. TATE: He discusses all the things
25 they do out of Sugar Land.
Mary Nancy Capetillo, CSR, RPR, CRR
23
Reporter's Record
August 7, 2015
1 MR. SMITHYMAN: What page?
2 MR. TATE: Page 9 in particular.
3 THE COURT: All right.
4 MR. TATE: And let me tell you why that's
5 important specifically in this case, Your Honor. There
6 was a form called an MOC. It's called a Management of
7 Change that was prepared in calendar year 2013. It
8 established the need for and the requirement for
9 improvements to the hydrogen separator, specifically
10 improvements to the seal of the hydrogen separator to
11 keep the fumes from being released which ignited in this
12 accident. But it required those to be done, and it
13 required those to be done by June of 2014.
14 Management decided to spend that money
15 elsewhere. They didn't spend it there. They didn't
16 make the improvement until July -- well, they didn't
17 take and make the improvement in June, as it was
18 scheduled; and this accident occurred on July 29, 2014,
19 almost eight weeks after the improvement was scheduled
20 and budgeted to be done.
21 Your Honor, Mr. Hogan makes the decision
22 as to when they will spend that money. He makes the --
23 THE COURT: All right. How are you going
24 to try to tie the probable cause of the accident to the
25 failure to spend money to effectuate the repairs?
Mary Nancy Capetillo, CSR, RPR, CRR
24
Reporter's Record
August 7, 2015
1 MR. TATE: It's like any other products
2 case, Your Honor. They knew there was a defect in that
3 hydrogen separator. They acknowledge it in this
4 management of summary change. They are under an
5 obligation to go fix it under all kinds of regulations.
6 Okay. And then they delayed doing it because Mr. Hogan
7 or someone else who is controlling the purse strings
8 here says, "I'm not going to spend that money there.
9 I'm going to spend it somewhere else." At the same
10 time, Your Honor, they're paying their chairman a
11 16-million-dollar bonus in that year.
12 Now those are -- and those decisions, Your
13 Honor, are all made right here in Sugar Land. Mr. Hogan
14 admits it. The deposition testimony we've taken in the
15 other case say it throughout. We have alleged -- we
16 have alleged independent negligence, Your Honor --
17 independent negligence in the performance of the duties
18 that they undertook to perform under the shared services
19 agreement.
20 THE COURT: Let's talk about the
21 preemptive regulations and statutes regarding workmen's
22 comp law in Kansas. How is this going to separate
23 itself from the workmen's compensation claim? And I
24 presume there was an award in Kansas that would preempt
25 any causes of action that could be lodged elsewhere.
Mary Nancy Capetillo, CSR, RPR, CRR
25
Reporter's Record
August 7, 2015
1 MR. TATE: First of all, he will have to
2 prove that under-- first of all, he'll have to prove
3 that Kansas law applies; and he attempted that, by the
4 way, in the other case down in Judge Shoemake's court in
5 his summary judgment; and his summary judgment was
6 denied. He tried to prove the law of lex loci. He has
7 got another motion pending that hasn't been specifically
8 ruled on to determine the local law that will apply.
9 But first of all, he's got to apply -- prove that Kansas
10 law, not Texas law, will apply which he hasn't done yet.
11 Secondly, even if he proves that Kansas
12 law will apply, he's got to prove that these two
13 non-employer entities -- these are not employers -- are
14 entitled to the benefit of Kansas law. The employer,
15 Your Honor, is the refinery on the ground there which is
16 Coffeyville Resources Refining & Marketing, Inc. It is
17 60 percent owned by the limited partnership which is
18 100 percent owned by --
19 THE COURT: Clarify this: The Sugar Land
20 operation under the operating agreement that you have
21 cited stands in the shoes of the local operating
22 authority or operating managers for the Colleyville
23 refinery. Is that what you're saying?
24 MR. TATE: No, I'm not saying it stands in
25 the shoes at all. I'm saying it has the authority and
Mary Nancy Capetillo, CSR, RPR, CRR
26
Reporter's Record
August 7, 2015
1 the responsibility because it has assumed that to
2 control -- and it does control the local plant, but that
3 does not make it the employer. The employer is still
4 the company that he works for, the local plant up in
5 Kansas. So whether or not he gets the benefit of the
6 Kansas workers' comp -- whether or not the two
7 defendants that they're alleging here will be entitled
8 to the benefit of the Kansas workers' compensation law
9 is a determination you will make when you make the
10 determination of which law applies; and then once you
11 decide which law applies, if it's Kansas law, you will
12 apply Kansas law.
13 And one point I really wanted to make,
14 it's always interesting to me that a Kansas lawyer will
15 come into a Texas courtroom --
16 THE COURT: By the way, I like Kansas
17 lawyers. I've dealt with a lot of them.
18 MR. TATE: I like Kansas lawyers too.
19 MR. SMITHYMAN: On behalf of Kansas, we
20 thank you, Your Honor.
21 MR. TATE: I like Kansas lawyers too
22 because every time he comes in here he contributes $500
23 to the Access to Justice Foundation, which you know is
24 dear to my heart.
25 Okay. But, Your Honor, a Kansas lawyer
Mary Nancy Capetillo, CSR, RPR, CRR
27
Reporter's Record
August 7, 2015
1 comes before you and argues Texas law to tell you, a
2 Texas judge, that you will be in some way handicapped in
3 applying Kansas law. If a Kansas lawyer is not
4 handicapped in arguing Texas law to you, why would you
5 be handicapped in applying Kansas law? You're not.
6 That makes no sense to me.
7 MR. SMITHYMAN: I'll stipulate I'm not as
8 good as a Texas lawyer would be in arguing my points.
9 MR. TATE: But this is specifically a
10 case, Your Honor, where they have chosen -- the CVR
11 entities have chosen to locate in Sugar Land. They're
12 both publicly traded companies, and they've chosen to
13 locate in Sugar Land; and they have chosen to control
14 the day-to-day operations of their operating
15 subsidiaries. They have chosen to do that. They are
16 not the employer. They would not be entitled to
17 workers' compensation protection; and all of their
18 decisions, Your Honor, that we are going to challenge
19 were made here in Sugar Land.
20 There are four management witnesses here
21 in Sugar Land that we deposed in the other case; we'll
22 be deposing them in this case. we had no problem no
23 problem with depositions in Oklahoma in the other in
24 the other refinery explosion down in Judge Shoemake's
25 court. None. Most of those -- many of those people
Mary Nancy Capetillo, CSR, RPR, CRR
28
Reporter's Record
August 7, 2015
1 work for them, and they can get them to come up here for
2 a deposition if they want to. In fact, if they work for
3 them, they can bring them down here live if they want
4 to. So this argument about the inconvenience of the
5 witnesses, again, with all the number of cases we've
6 tried in this court over the years with witnesses all
7 over the world, it's just not -- it's not a serious
8 factor to be considered in this case.
9 Now, as to ENSCO and BPZ, if the Court --
10 and I know you always read the cases; but in both ENSCO
11 and BPZ, the emphasis there was how much it was going to
12 cost to go to Australia and get witnesses, how much it
13 was going to cost to go to Peru and get witnesses. In
14 this case we -- it's going to cost us, the plaintiffs,
15 more because if we have to take a Kansas deposition,
16 Mr. Riebschlager, Justice Medina, or I are going to have
17 to go up there to Kansas to take the depositions. He's
18 there already. He doesn't even have to go. He's there.
19 And so it's actually more convenient.
20 And then with respect to Sugar Land, we're
21 going to go and take the depositions of the Sugar Land
22 people wherever they tell us to, likely in Mr. Sharp's
23 office in Houston. Even though I detest crossing the
24 Brazos to go take depositions, for Mr. Sharp I'll do it.
25 But the point of the matter is, Your
Mary Nancy Capetillo, CSR, RPR, CRR
29
Reporter's Record
August 7, 2015
1 Honor, this is all about decisions made in Sugar Land by
2 executives in Sugar Land who because they've -- the
3 record will show they've been in the course of preparing
4 for, of making acquisitions, and being acquired by Carl
5 Icahn or being involved in various public trading
6 activities, they have chosen to make -- to defer
7 expenditures. They have chosen to put workers of their
8 subsidiaries at risk. And, frankly, Your Honor, they
9 should be held responsible for those choices; and it is
10 certainly under no circumstances unfair to make them
11 face a Fort Bend County jury of their neighbors in doing
12 so.
13 THE COURT: As just a matter of
14 clarification, what are the differences between this
15 particular case and the case in the 434th? Both parties
16 understanding, I'm not bound by any rulings of the
17 434th.
18 MR. TATE: None at all except that it was
19 at a different refinery. That one -- well, at that one
20 there was a boiler explosion at the Wynnewood refinery.
21 This one is a fire that occurred in a hydrogen separator
22 at the Coffeyville refinery. But -- and, Your Honor,
23 the liability facts as to what caused the accident,
24 those aren't even going to be contested. It's -- you
25 know, the real contest in this case is whether or not
Mary Nancy Capetillo, CSR, RPR, CRR
30
Reporter's Record
August 7, 2015
1 the Sugar Land people are responsible.
2 In both cases liability is going to be
3 crystal clear, and the question is simply going to be:
4 Is the -- are the parent companies located here in Sugar
5 Land that have chosen to manage the day-to-day
6 operations responsible for their independent negligence
7 in causing these accidents?
8 THE COURT: Do you want to answer that
9 question?
10 MR. SMITHYMAN: I want to answer. Yes, I
11 do.
12 THE COURT: Okay.
13 MR. SMITHYMAN: Very quickly. The only
14 argument I heard why there's any responsibility here is
15 a shared services agreement between CVR Energy and
16 subsidiaries. Primarily if you look at what they've
17 submitted to you between them and the general partner or
18 the limited partnership -- and that's the shared
19 services agreement-- I'm not sure that these plaintiffs
20 are third-party beneficiaries to that contract. I don't
21 see how they would be or how they can rely upon that
22 issue.
23 More important, you know, there is a --
24 there is obviously some truth to the fact that we can
25 get some of those employees here reasonably easily.
Mary Nancy Capetillo, CSR, RPR, CRR
31
Reporter's Record
August 7, 2015
1 Okay. That's the truth, but we can't for EMS people.
2 We can't for the police. We can't for the physicians.
3 We can't for those that have -- that have retired that
4 have seen things, that have moved from the company; and
5 there's been a lot that have moved from the company on a
6 yearly basis, and we're learning that in the other case.
7 The other case has a number of differences
8 here, but the most important one for you is the
9 simplest. There was no motion to dismiss for forum
10 non conveniens in the earlier case; and there's a time
11 limit on that, and it's a 180-day time limit. And if
12 you realize how really inconvenient it has been, then
13 you shouldn't be damned to the same mistake each time a
14 case is filed in Sugar Land -- in Sugar Land. None of
15 those go to the main issue before you, Your Honor; and I
16 think the last two pages of my supplemental brief --
17 three pages -- address those issues.
18 Mr. Tate just argued that it was decisions
19 concerning the budgeting or decisions on a macro level
20 in Sugar Land that were the cause of the pump failure --
21 rotating pump failure in Coffeyville at the refinery.
22 Those same arguments were made in In Re: BPZ. I was
23 thrilled to hear that you read these cases. Because in
24 In Re: BPZ here is what the Court of Appeals said: We
25 presume without deciding that the relators' decisions in
Mary Nancy Capetillo, CSR, RPR, CRR
32
Reporter's Record
August 7, 2015
1 Houston were the legal cause of the explosion when they
2 allegedly ordered production on the platform to be
3 ramped up to quickly generate needed cash. Even though
4 they knew these operations involved dangerous
5 procedures, insufficient equipment, unworthy --
6 unseaworthy vessels, nevertheless, the acts and
7 omissions in Texas would be a more remote cause of the
8 real parties' injuries than the alleged acts and
9 omissions in Peru.
10 And, Your Honor, the first district -- the
11 first panel in the Mantle case did the exact same thing.
12 They said: The Alcee, meaning these are the Louisiana
13 plaintiffs, assumed that because Mantle Oil was the well
14 operator and made big decisions concerning operations of
15 the Louisiana well at its Texas headquarters their
16 injuries were undoubtedly caused by Mantle's acts and
17 omissions that occurred in Kansas.
18 Essentially they said: Although big
19 decisions were made, obviously a lot of smaller
20 decisions were not made; and on the basis of that, they
21 too determined that any decisions that would be made
22 here in the macro scheme of things were remote compared
23 to Louisiana; and Louisiana had the -- was the
24 appropriate forum and had the right to resolve those
25 issues between its residents and the operations that
Mary Nancy Capetillo, CSR, RPR, CRR
33
Reporter's Record
August 7, 2015
1 were there. And that's how the First -- that's how our
2 First Circuit panel decided it in both cases.
3 That's exactly what Mr. Tate is arguing.
4 Decisions made at the macro level by a parent somehow
5 create liability that would allow jurisdiction to
6 appropriately be here -- well, jurisdiction is here, but
7 that allow the case to be tried here. In fact, in both
8 cases this statute, 71.051, and the consideration of
9 those factors has been determined that macro decisions
10 by a parent are insufficient where all other factors
11 say: Go to the jurisdiction of the accident.
12 MR. TATE: And what I'm arguing is they're
13 not macro. They're micro decisions, and that's a fact
14 issue which he brought up on summary judgment in the
15 other case and lost.
16 MR. SMITHYMAN: Actually could I address
17 that?
18 THE COURT: That's all right, Counsel.
19 I've heard enough. On the issue that I have to decide
20 on today, I'm going to deny your motion.
21 (Proceedings concluded at 10:04 a.m.)
22
23
24
25
Mary Nancy Capetillo, CSR, RPR, CRR
34
1 THE STATE OF TEXAS
2 COUNTY OF FORT BEND
3 I, Mary Nancy Capetillo, CSR, Deputy Court Reporter
4 in and for the 268th District Court of Fort Bend County,
5 State of Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription of
7 all portions of evidence and other proceedings requested
8 in writing by counsel for the parties to be included in
9 this volume of the Reporter's Record in the above-styled
10 and numbered cause, all of which occurred in open court
11 or in chambers and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits,
14 if any, admitted, tendered in an offer of proof or
15 offered into evidence.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $ 324.00 and
18 was paid by Smjthyman & Zakoura, Chartered
19 WITNESS MY OFFICIAL HAND on this, the 14th day of
_ _ _ _ _,L.;ALWu~gust ' 2015 •
20
21
22
M~~~lo,
Expiration: 12/31/2016
Texas CSR No. 3698
Deputy Court Reporter
23 7022 Bois D'Arc Lane
Richmond, Texas 77406
24 Telephone: (281) 344-7973
25
Mary Nancy Capetillo, CSR, RPR, CRR
Tab3
Page 1 of3
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REGISTER OF ACTIONS
CASE No. 15-DCV-220330
Donald R Collier, Jennfler J Collier, Dale A Neimeyer and Wendy § Case Type: Injury or Damage - Other Injury
Neimeyer vs CVR Energy Inc. and CVR Refllnlng, LP. § or Damage
§ Date Filed: 01/1212015
§ Location: 268th District Court
§
PARTY (NFORI\fATION
Attorneys
Defendant or CVR Energy Inc. Lee M Smlthyman
Respondent Retained
Dallas, TX 75201-3136
Phillip D. Sharp
Retained
713-223-2900(W)
Defendant or CVR Refining, LP Lee M Smlthyman
Respondent Retained
Austin, TX 78701
Phillip D. Sharp
Retained
713-223-2900(W)
Plaintiff or Collier, Donald R Gary M. Rlebschlager
Petitioner Retained
Houston, TX 77002
281-904-1404(W)
Plaintiff or Collier, Donald R. Richard L. Tate
Petitioner Retained
281-341-0077(W)
Plaintiff or Collier, Jennfler J Gary M. Rlebschlager
Petitioner Retained
Houston, TX 77002
281-904-1404(W)
Plaintiff or Neimeyer, Dale A Gary M. Rlebschlager
Petitioner Retained
Houston, TX 77002
281-904-1404(W)
Plaintiff or Neimeyer, Wendy Gary M. Rlebschlager
Petitioner Retained
Houston, TX 77002
281-904-1404(W)
EVENTS & ORDERS OF THE COURT
OTHER EVENTS AND HEARINGS
01/1212015 Docket Sheet
Docket Sheet
01/1212015 Petition Doc ID# 1
Plaintiff's Original Petition
01/1212015 Jury Fee Paid
Jury Demand Fee Paid
01/13/2015 Issuance Doc ID# 2
Citation Issued to CVR Energy Inc.
01/1312015 Citation
Mailed to Atty
CVR Energy Inc. Unserved
01/13/2015 Issuance Doc ID# 3
Citation Issued to CVR Refining LP
01/1312015 Citation
Mailed to Atty
CVR Refilning, LP Unserved
01/1312015 Letters
Form Letter
04/0812015 ~ Doc ID# 4
Request for Process
04/0912015 Issuance Doc ID# 5
http://tylerpaw.co.fort-bend.tx.us/CaseDetail.aspx?CaseiD=l439943 8/19/2015
Page 2 of3
Citation by CM Issued to CVR Energy Inc
04/09/2015 Citation by Certified Mall
CMRRR 7196 9008 9115 6076 0290
CVR Energy Inc. Returned Unserved 04/20/2015
Returned 04/2012015
04/09/2015 ~ Doc 10# 6
Citation by CM Issued to CVR Refining LP
04/09/2015 Citation by Certified Mall
CMRRR 7196 9008 9115 6076 0313
CVR Refiinlng, LP Unserved
05/14/2015 Issuance Doc 10# 7
(Re-Issued) Citation By Certified Mall Issued to CVR Refining LP
05/1412015 Citation by Certified Mall
(Re-Issued) CMRRR# 9414 7266 9904 2956 2259 38
CVR Refllnlng, LP Served 05/1812015
Returned 05/2812015
05/14/2015 ~ DociD#B
(Re-Issued) Citation By Certified Mall Issued to CVR Energy Inc.
05/14/2015 Citation by Certified Mall
(Re-Issued) CMRRR# 9414 7266 9904 2956 2259 21
CVR Energy Inc. Served 05/18/2015
Returned 05/2212015
05/28/2015 Answer/ContesUResponse/Walver Doc 10# 9
Defendants CVR Energy, Inc. and CVR Refining, LP's Original Answer
06/01/2015 No Fee Documents Doc 10# 10
Plaintiffs' Special Exceptions to Defendants CVR Energy, Inc. and CVR Refining, LP's Original Answer
06/01/2015 Proposed Order Doc ID# 11
(Returned Unsigned 06/0512015)0rder Granting Plaintiffs Special Exceptions to Defendants CVR Energy, Inc. and CVR Refining, LP's Original
Answer
06/0112015 Motion Doc 10# 15
Motion of Phillip D. Sharp to Admit Lee M. Smithyman Pro Hac Vice for the Sole Purpose of This Case
06/0412015 Order Doc ID# 14
Order Granting Pro Hac Vice Motion
0612312015 ~ Docl0#16
Notice of Hearing
07/2112015 ~ Doc 10# 17
Amended Notice of Hearing
0712412015 CANCaED M/Hearlng (9:00AM) (Judicial Officer Elliott. Brady G)
Passed
DEFENDANrS MOTION TO DISMISS BASED ON FORUM NON CONVENIENS
0810412015 No Fee Documents Doc 10# 18
Supplemental Memorandum in Support of Defendants' Motion to Dismiss Pursuant to Texas Civil Practice &Remedies Code Chapter 71.051
08/05/2015 AnsweriContesUResponse/Walver Doc 10# 19
Plaintiff's Response to Defendants' Motion to Dismiss Pursuant to Texas Civil Practice &Remedies Code Chapter 71.051
08/07/2015 M/Hearlng (9:00AM) (Judicial Officer Elliott, Brady G)
DEFENDANrS MOTION TO DISMISS BASED ON FORUM NON CONVENIENS
08/07/2015 No Fee Documents Doc 10# 20
Plaintiffs' Supplemental Petition
FINANCIAL INFORMATION
Defendant or Respondent CVR Energy Inc.
Total Financial Assessment 16.00
Total Payments and Credits 16.00
Balance Due as of 0811912015 0.00
05/28/2015 Transaction Assessment 2.00
05128/2015 E-filing Receipt# 2015-28318-DCLK CVR Energy Inc. (2.00)
06/0212015 Transaction Assessment 2.00
06/0212015 E-fillng Receipt# 2015-29082-DCLK CVR Energy Inc. (2.00)
06/0212015 Transaction Assessment 2.00
06/0212015 E-fillng Receipt# 2015-29083-DCLK CVR Energy Inc. (2.00)
06/0212015 Transaction Assessment 2.00
06/0212015 E-fillng Receipt# 2015-29496-DCLK CVR Energy Inc. (2.00)
06/0212015 Transaction Assessment 2.00
06/0212015 E-fillng Receipt# 2015-29497-DCLK CVR Energy Inc. (2.00)
06/2312015 Transaction Assessment 2.00
06/23/2015 E-fillng Receipt# 2015-33899-DCLK CVR Energy Inc. (2.00)
07/2212015 Transaction Assessment 2.00
07/22/2015 E-fillng Receipt# 2015-39517-DCLK CVR Energy Inc. (2.00)
08104/2015 Transaction Assessment 2.00
0810412015 E-fillng Receipt# 2015-41956-DCLK CVR Energy Inc. (2.00)
Plaintiff or Petitioner Collier, Donald R
I
Total Financial Assessment 730.00
http://tylerpaw.co.fort-bend.tx.us/CaseDetail.aspx?CaseiD=l439943 8119/2015
Page 3 of3
Total Payments and Credits 730.00
Balance Due as of 08/19/2015 0.00
01/1212015 Transaction Assessment 518.00
01/12/2015 E-filing Receipt# 2015-01543-DCLK Collier, Donald R (518.00)
04/09/2015 Transaction Assessment 206.00
04/09/2015 E-filing Receipt# 2015-1 8309-DCLK Collier, Donald R (206.00)
06/01/2015 Transaction Assessment 2.00
06/01/2015 E-filing Receipt# 2015-28888-DCLK Collier, Donald R (2.00)
08/06/2015 Transaction Assessment 2.00
08/06/2015 E-filing Receipt# 2015-42204-DCLK Collier, Donald R (2.00)
08/07/2015 Transaction Assessment 2.00
08/07/2015 E-filing Receipt# 2015-42462-DCLK Collier, Donald R (2.00)
http://tylerpaw.co.fort-bend.tx. us/CaseDetail.aspx?CaseiD= 1439943 8119/2015
Page 1 of 1
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Questions and Answers on Images
CASE NO. 15-DCV-220330
DONALD R COLLIER, JENNFIER J COLLIER, DALE A NEIMEYER AND WENDY
NEIMEYER VS CVR ENERGY INC. AND CVR REFIINING, LP.
Selected Event Image Page Count
01/12/2015 Docket Sheet Docket Sheet 2
Other Events on This Case Image Page Count
01/1212015 Petition Plaintiffs Original Petition 14
01/13/20151ssuance Issuance 1
01/13/20151ssuance Issuance 1
01/13/2015 Letters Letters 1
04/08/2015 Request Request for Process 2
04/09/2015 Issuance Issuance 2
Certified Mail Receipt for CVR Eneray Inc. 2
Issuance 4
04/09/20151ssuance Issuance 2
Certified Mail Receipt for CVR Refining LP 2
Issuance - Citation by Certified Mail Issued to CVR
4
Refining Returned Unserved
Issuance - Citation By Certified Mail
05/14/20151ssuance 2
Issued to CVR Refining LP
Issuance 2
Issuance 2
Issuance - 7700~
Tcl: phonc; (713) 612- 1700
F><>imilt' (713) ~.0101
FACSTl\tlLE TRANSl\onSSION
DATE: _ _..::S~/Z:.llfl:..!/l~S_ _ _ _ _ __
TO: G:~ry 1\1, Ricbschlnger Facsimile No. : 713-228-2210
The Ricbschlngcr Law Firm
Riclulrd L. Tote Facsimile No.: 281-341-1003
Kristin Rels
Tntc, Moercr & King, LLP
FROM: _ __._P""hi""ll'-'-ip,_,S"-'-h:.::3.:.Jrp"----------------------
RE: Cause 1'\o. IS-DCV-220330; Do11ald Collier, eta/ v. CVR E11ergy, Inc., et al.; In the
268 1 ~ Judicial District Court of Fort Bend County, Texas
CLTENTfMA TTER: _ __,_1.<.:92,_,7""'-0""'0"'0•4---*RETURN TO: _..:.;K::!::~,_th:J.>'..:.Bo:../1:...:7_ __
1\rESSAGE:
Please sec attached Original Answer.
No. of Pages Sent iocluding cover sheet:.....;;4:..,__
If you lud :my problems r.:ceiving this fax transmission, or if you did not receiv~ th~ complete
fax, pl.:ase calt (713) 632-1798 immcdi:ltcly. Thank you.
CO!-.TACTCI!L'l.YL THOR.'ITON f0!4. CHANGES
Tab6
Filed
6/1/2015 4:54:17 PM
Annie Rebecca Elliott
District Clerk
Fort Bend County, Texas
Vanessa Vasquez
CAUSE NO. 15-DCV-220330
DONALD R. COLLIER, JENNIFER J. § IN THE DISTRICT COURT OF
COLLIER, DALE A. NIEMEYER, and §
WENDY NIEMEYER, §
§
Plaintiffs, §
vs. § FORT BEND COUNTY, TEXAS
§
CVR ENERGY, INC. and §
CVR REFINING, LP, §
§
Defendants. § 268TH JUDICIAL DISTRICT
DEFENDANTS' MOTION TO DISMISS
BASED ON FORUM NON CONVENIENS
TO THE HONORABLE COURT:
COME NOW the Defendants, CVR ENERGY, INC. ( 11 CVR Energy11) and CVR
REFINING, LP ("CVR Retining 11 ) (collectively, "CVR11), and pursuant to Chapter 71.051 of the
Texas Civil Practice & Remedies Code, move the Court to dismiss this litigation under the
doctrine of forum non conveniens. Kansas is a more reasonable and appropriate jurisdiction
because:
1. Maintenance of the action in Texas will work a substantial injustice to the
Defendants because the work-related accident occurred in Kansas and all witnesses to the
accident are in Kansas or in nearby Oklahoma;
2. Kansas has jurisdiction and will exercise that jurisdiction over all of the
Defendants associated with Plaintiffs' claim;
3. The balance of the private interests of the parties and the public interest of Texas
clearly favor of the claim being adjudicated in Kansas.
In support of said Motion, the Defendants provide the accompanying Memorandum
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which will establish that Kansas is a much more appropriate forum because Kansas is the
location of the parties, the place where the accident occurred, and the place of the employment
relationship between the Plaintiffs and Defendants' subsidiary. More important, the law of
Kansas should be applied to Plaintiffs' claims in this case.
WHEREFORE, premises considered, Defendants ask that this case be dismissed on the
grounds of forum non conveniens so that it may be pursued, if anywhere, in the State of Kansas,
and that Defendants receive any and all li.uther relief to which they are justly entitled.
Houston,
Telephone: (713) 632-1700
Telefacsimile: (713) 222-0101
Email: sharp@mdjwlaw.com
AITORNEYS FOR DEFENDANTS
CVR ENERGY, INC. AND CVR REFINING, LP
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was
served pursuant to Rules 21 and 21 a of the Texas Rules of Civil Procedure, via fax and/or email
on the 151 day of June, 2015, upon the following counsel of record:
Gary M. Riebschlager
The Riebschlager Law Firm
801 Congress, Suite 250
Houston, TX 77002
Email: gary@riebschlagerlaw.com
Richard L. Tate
Kristin Reis
Tate, Moerer & King, LLP
206 South Second Street
Richmond, TX 77469
Email: rltate@tate-law.com
kreis@tate-Jaw.com
Attorneys for Plaintiffs
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Tab7
Filed
6/1/2015 4:56:03 PM
Annie Rebecca Elliott
District Clerk
Fort Bend County, Texas
Vanessa Vasquez
CAUSE NO. 15-DCV-220330
DONALD R. COLLIER, JENNIFER J. § IN THE DISTRICT COURT OF
COLLIER, DALE A. NIEMEYER, and §
WENDY NIEMEYER, §
§
Plaintiffs, §
vs. § FORT BEND COUNTY, TEXAS
§
CVR ENERGY, INC. and §
CVR REFINING, LP, §
§
Defendants. § 268TH JUDICIAL DISTRICT
MEMORANDUM IN SUPPORT OF
DEFENDANTS' MOTION TO DISMISS
PURSUANT TO TEXAS CIVIL PRACfiCE & REMEDIES CODE CHAPTER 71.051
TO THE HONORABLE COURT:
COME NOW the Defendants, CVR ENERGY, INC. ("CVR Energy") and CVR
REFINING, LP ("CVR Refining") (collectively, "CVR"), and submit this Memorandum in
Support of their Motion to Dismiss the claims and actions of the Plaintiffs under the Texas
doctrine of forum non conveniens, pursuant to Chapter 71.051 of the Texas Civil Practice &
Remedies Code.
This Memorandum will establish that:
I. Maintenance of the action in Texas will work a substantial injustice to the
Defendants because the work-related accident occurred in Kansas and aJI witnesses to the
accident are in Kansas or in nearby Oklahoma;
2. Kansas has jurisdiction and will exercise that jurisdiction over all of the
Defendants associated with Plaintiffs' claim;
3. The balance of the private interests of the parties and the public interest ofTexas
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clearly favor the claim being adjudicated in Kansas.
I. FACTS.
I. Plaintiffs Donald R. Collier and Jennifer J. Collier are individuals who reside in
Independence, Kansas. (Petition, ,, 2 & 3.)
2. Plaintiffs Dale A. Niemeyer and Wendy Niemeyer are individuals who reside in
South Coffeyville, Oklahoma, which is immediately adjacent to Coffeyville, Kansas. (Id, ,, 4
&5.)
3. The Plaintiffs' cause of action addresses work injuries sustained in an accident by
Donald R. CoJiier and Dale A. Niemeyer, which occurred in the Coffeyville Refinery, located in
Coffeyville, Kansas. (ld, 11 14.) 1
4. Another employee, Greg Rigdon, died in the accident. (ld,, 14.)
5. Plaintiffs Donald R. Collier and Dale A. Niemeyer are employees of Coffeyville
Resources Refining & Marketing, LLC ("CRRM"), which is a subsidiary of these Defendants.
(Id, 11 13.)
6. CRRM is alleged to be a wholly-owned subsidiary ofCVR. (Id,, 12.i
7. Mr. Collier and Mr. Niemeyer received benefits under Kansas law, namely the
Kansas Workers' Compensation Act, K.S.A. 44-501, et. seq. (Exhibit I, 1J 3.)
3
8. Plaintiffs allege that because CRRM is a wholly-owned subsidiary of CVR , CVR
is liable for the torts ofCRRM. (Petition,, 18.)
Actually, the accident created a fire rather than the explosion alleged in the Petition.
1
Actually, CRRM is a wholly-owned subsidiary ofCVR Refining, LP. CVR Energy, Inc.
owns the General Partner and 66% of the Limited Partner units ofCVR Refining, LP; hence,
CRRM is not a wholly-owned subsidiary ofCVR Energy, Inc.
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9. Although Plaintiffs have alleged that CVR committed acts of negligence, no
specific negligence allegations of any type are asserted in their Petition. (Id, ~ 19.)
10. CVR Energy, Inc. and CVR Refining, LP, are in good standing with and
registered to do business in Kansas. (Exhibit 1, ~' 8-9.) As such, both are amenable to service
of process through their registered agent in Kansas. (Jd)
II. ISSUES.
Upon receipt of a written § 71.051 motion, this Court shall determine whether to stay or
dismiss the claim or action under the doctrine of forum non conveniens. If this Court determines
that in the interest ofjustice and for the convenience of the parties, the Plaintiffs' claim would be
more properly heard in a forum outside this state, "the court shall decline to exercise jurisdiction
under the doctrine of forum non conveniens and shall stay or dismiss the claim or action." (Tex.
St. § 71.051(b); emphasis supplied.)
In determining whether to grant a motion to stay or dismiss an action under the
doctrine of forum non conveniens, the court shall consider whether:
(1) an alternate forum exists in which the claim or action may be tried;
(2) an alternative forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state-Texas--
would work a substantial injustice to the moving party;
(4) the alternate forum, as a result of the submission of the parties or
otherwise, can exercise jurisdiction over all the defendants properly joined to the
plaintiff's claim;
(5) the balance of the private interests of the parties and the public interest
of the state predominate in favor of the claim or action being brought in an
alternate forum, which shall include consideration of the extent to which an injury
or death resulted from acts or omissions that occurred in this state; and
See fit. 2 above. Independent of this factual inaccuracy, this allegation incorporates an
incorrect statement of the law, whether applying the Jaw of Texas or Kansas.
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(6) the stay or dismissal would not result in unreasonable duplication or
proliferation of litigation. (Id)
Texas Civil Practice & Remedies Code.§ 71.051(e) concludes:
The court shall dismiss a claim under Subsection (b) if the court finds by a
preponderance of the evidence that a party was joined solely for the purpose of
obtaining or maintaining jurisdiction in this state and the party's claim would be
more properly heard in a forum outside this state.
Consideration of the section these factors reflects that Kansas is clearly a superior and
appropriate forum to resolve the issues presented in Plaintiffs' Petition.
III. KANSAS IS MORE APPROPRIATE AND MORE CONVENIENT TO THE
PARTIES.
Forum non conveniens is an equitable doctrine exercised by courts to prevent the
imposition of an inconvenient forum on a litigant. Exxon Corp. v. Choo, 881 S.W.2d 301,302 n.
2 (Tex. 1994). "A 'foreign forum' is available when the entire case and all the parties can come
within the jurisdiction of that forum." In re Dauajare-Johnson, 20 14 WL 3401094 (Tex. App.-
Hous. 14th Dist.). Texas courts hold that another forum is available if the defendant submits to
the jurisdiction of the other forum. In re BPZ Resources, Inc., 359 S.W.3d 866, 873 (Tex. App.-
Hous. 14th Dist 20 12).
CVR Energy, Inc. and CVR Refining, LP, are both amenable to jurisdiction in Kansas.
Both entities are registered in the State of Kansas (Facts, -;I 10). CVR Energy, Inc. has appeared
in the courts in Kansas many times. CVR Refining, LP has not yet litigated in the State of
Kansas but is registered in and amenable to the jurisdiction of Kansas and would have no valid
objection to the jurisdiction of Kansas.
Once the defendant establishes that an available alternative forum exists, the plaintiff
must prove that the available alternative forum is, for some reason, inadequate. Sarieddiene v.
-4-
Moussa, 820 S. W.2d 837, 839 (Tex. App.-Dallas 1991 ), writ denied. The Court should note that
none of the Plaintiffs in this case are Texas residents. That point is worth noting because "A
nonresident plaintifrs • . . choice of forum is afforded substantially less deference under the
forum non conveniens doctrine." Sinochem Int'l Co. v. Malaysia lnt'l Shipping Corp., 549 U.S.
422, 430 (2007); Quixtar v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010).
Moreover, the specific nature of the remedies within the more appropriate jurisdiction is not
entitled to consideration. "[T]hat the substantive law of an alternate forum may be less favorable
to the plaintiff is entitled to little, if any, weight. 11 In re Pirel/i Tire, LLC, 247 S.W.3d 678.
IV. THE GULF OIL FACTORS STRONGLY MANDATE DISMISSAL IN FAVOR OF
A KANSAS FORUM.
If there is an alternative forum, which there is in this instance, the court must then
consider the private and public interest factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 508-9 (1947). The Texas courts apply the Gulf Oil factors in the forum non conveniens
analysis. Quixtar, Inc., 315 S.W.3d at 33-34; Pirel/i Tire, LLC, 247 S.W.3d at 676-77. The
private interest factors of Gulf Oil Corp., 501 U.S. at 508, include:
(1) the relative ease of access to sources of proof;
(2) the availability of compulsory process for attendance of unwilling
witnesses, and the cost of obtaining attendance of willing witnesses;
(3) the possibility of a view of the premises, if a view would be
appropriate to the action;
(4) the enforceability of a judgment once obtained; and
(5) all other practical problems that make trial of the case easy,
expeditious and inexpensive.
(/d)
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1. Access to the Sources of Proof Clearly Favor Kansas.
Plaintiffs' cause of action relates to an accident which occurred at CRRM's Coffeyville
refinery in Coffeyville, Kansas. (Facts,~ 3.) The pump at issue remains in Kansas. (Exhibit I,
,5.) All witnesses to the accident are CRRM employees who were on the refinery premises on
the date ofthe accident. (Exhibit I,, 6.) The investigation ofthe pump failure and causes ofthe
accident were being undertaken at the refinery in Kansas or in Lee's Summit, Missouri. (Exhibit
I,, 5.) Plaintiffs' treating physicians, health care providers and hospitals are all either in Kansas
or the adjacent areas of Tulsa, Oklahoma. (Exhibit I, 1 7.) Because the Plaintiffs' Petition is not
specific as to any allegations of negligence, it is clear that any potential and possible negligence
or sources of proof related to negligence would be at or near CRRM's Coffeyville refinery. All
issues related to Plaintiffs' injuries, treatment and recovery, are also in Kansas or adjacent areas
of Oklahoma. None of the 11sources of proof' associated with the accident exist in Fort Bend
County or, for that matter, in Texas.
2. Availability of Compulsory Service.
Compulsory service in Kansas is available for all participants in and witnesses of the
accident of July 29, 2014. The cost of compelling witnesses to appear in a Kansas court is
negligible. The cost of obtaining willing witnesses to appear in a Kansas court from nearby
Oklahoma is negligible.
Conversely, Texas cannot, by compulsory process, compel the attendance of any witness
residing in Kansas or Oklahoma. Even the cost of attendance of witnesses who would appear in
Texas voluntarily is substantially greater, because all would require travel of almost 600 miles
from Coffeyville, Kansas, and its environs to Fort Bend County.
-6-
3. Possibility of a View of the Premises.
While it is presently difficult to determine whether a view of the premises will be
necessary, that ability only exists in an action which would be brought in the State of Kansas. A
Fort Bend County action cannot, under any circumstances, make a view of the premises of the
accident available to a fact finder.
4. Enforceability of a Judgment and Other Practical Problems.
Obviously, a judgment obtained in either Kansas or Texas would be equally enforceable
and valid. However, practical considerations would make trial of Plaintiffs' litigation much more
easy, expeditious and inexpensive in Montgomery County, Kansas. Montgomery is the county
in which the Colliers reside, the refinery exists, the employee-witnesses observed the incident,
and much of the medical care was provided. Moreover, Montgomery County, Kansas is the situs
of the employment relationship between the Plaintiffs and CRRM which is at the heart of the
cause of action.
V. GULF OIL PUBLIC INTEREST FACTORS FAVOR KANSAS.
Gulf Oil identified the following public interest factors which should be considered in a
forum non conveniens determination:
(1) administrative difficulties flowing from court congestion;
(2) the burden of jury duty imposed on the citizens of the community
with no relation to the litigation;
(3) local interest in having localized controversies decided at home;
and
(4) the avoidance of unnecessary problems in conflicts of law, or in
the application of foreign law.
Gulf Oil, 330 U.S. at 508-09.
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1. Administrative Difficulties Favor Kansas.
While Fort Bend County enjoys a new, large and efficient courthouse, Montgomery
County, Kansas will have no administrative difficulties whatsoever. Court congestion in rural
Kansas counties, such as Montgomery County, is nonexistent. Montgomery County, like most
Kansas rural counties, has few civil lawsuits, fewer civil cases that go to trial, and fewer still
cases that go to jury trial. Montgomery County is a close, uncongested, and rural venue with a
vital interest in the litigation. Montgomery County is the venue in which the majority of the
witnesses and treating physicians reside.
2. The Burden of Jury Duty.
There would appear to be no reason why jury duty should be imposed on 12 Texas
citizens, where the accident, the relationship between the parties, the injuries and the losses
associated therewith, have absolutely no relationship to Fort Bend County or, for that matter, to
Texas. Plaintiffs are all residents of Coffeyville, Kansas, or reside just over the Oklahoma state
line. CRRM•s refinery operates exclusively in Kansas. The accident occurred in Kansas. The
accident participants and witnesses are located in either Kansas or in nearby Oklahoma towns.
Texas simply has no relationship to the incident, the Plaintiffs, the employment relationship, or
the litigation.
3. Local Interest in Having Localized Controversies Decided at Home.
Kansas is the state in which the accident occurred, the employment relationship existed,
and the state in which workers' compensation benefits were obtained. The significance of
Kansas• regulatory interest weighs heavily in favor of Kansas as the appropriate forum. Kansas
has every right to govern and regulate work-related injuries which call into play its tort law and
its statutory scheme of workers' compensation benefits. Indeed, when such benefits have already
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been provided to each of these Plaintiffs, Kansas has a strong regulatory interest in determining
and resolving any remaining issues which might be addressed, such as statutory immunity,
workers' compensation liens, and the like.
VI. AVOIDANCE OF mE APPLICATION OF FOREIGN LAW.
A forum non conveniens analysis favors conducting the trial in a court that is familiar
with the law that will govern the case. See, Gulf Oil, 330 U.S. at 509 (1947); In re Dauajare-
Johnson, 2014 WL 3401094, *10 (Tex. App.-Hous. 14th Dist.). "There is an appropriateness,
too, in having the trial of a diversity case in a forum that is at home with the state law that must
govern the case." Duncan v. Cessna Aircraft Co., 665 S.W.2d 414,421 (Tex. 1984).
"The fifth statutory factor of Section 71.05 1 requires consideration of whether the forum
is at home with the law that governs the case and, therefore, whether a choice of law analysis is
necessary." Schippers v. Mazak Props., Inc., 350 S.W.3d 294, 300 (Texas. App.-San Antonio
2011, pet. denied).
In determining the law which is applicable, Texas follows the "most significant
relationship" test for personal injury lawsuits. Liberty Mut. Ins. Co. v. Transit Mix Concrete &
Materials Co., 2013 WL 3329026, *5 (Tex. App.-Texarkana). That "most significant
relationship" test involves three levels. The first level, as stated in Section 6 of the Restatement
of Conflict of Laws, involves a general test which weighs the competing policy interests of the
different jurisdictions. Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302, 313 (Tex. App.-
Texarkana 2004, no pet.). Section 6 requires the consideration of:
(a) the needs of the interstate and international systems,
{b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of
those states in the determination of the particular issue,
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(d) the protection ofjustified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Kansas clearly has the greatest interest in and need to govern the legal ramifications of
employment accidents occurring to Kansas residents within its borders. Kansas policies will
govern the expectations of the parties, the certainty, predictability and uniformity of the results.
The second level of the analysis is equally important, particularly in a tort case. That
involves Section 145 of the Restatement 2d of Conflict of Laws (1971). There, Section 145
emphasizes the following four factors:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil[e], residence, nationality, place of incorporation and place of
business of the parties, and
(d) the place where the relationship, if any, between the par[ties] is centered.
Kansas is the place where the injury occurred, the place where the conduct causing the injury
occurred, the residence of the Plaintiffs Collier, the place of the business of CRRM, and the
place where the employment relationship between the parties existed. Kansas law will apply.
Kansas law will determine the rights and liabilities of the parties. Unless, with respect to the
particular issue, some other state has a more significant relationship in an action for a personal
injury, the local law of the state where the injury occurred typically determines the rights and
liabilities of the parties. Liberty Mut. Ins. Co. v. Transit Mix Concrete & Materials Co., 2013
WL 3329026, *6 (Tex. App.-Texarkana). Moreover, "it is the plaintitl's residence at the time of
-10-
the injury, not at the time of filing, that is relevant." Tullis v. Georgia-Pacific Corp., 45 S.W.3d
118, 127 (Tex. App.-Fort Worth 2000). In some cases, the place of the injury is deemed so
important that it has been considered the appropriate forum, even where all parties are Texas
residents. In Liberty, the court detennined that Arkansas was the appropriate jurisdiction to hear
the case because it was the place of (I) the injury and (2) the conduct causing the injury, even
though the Texas employee was allegedly injured by the negligence of his Texas employer.
VII. FORUM SELECTION IS INDEPENDENTLY DETERMINED WITHOUT A
"BURDEN OF PROOF" ALLOCATION.
The Court should note that Tex. St. 71-051(b) was enacted in 2003. Since then, the Texas
Supreme Court has held that the new statute states that a Texas trial court "shall dismiss" where
the Texas forum would work a substantial injustice to the defendant corporation. Ensco Offshore
Int'l. Co., 311 S.W.3d 921 (Tex. 2010). Moreover, the Texas Supreme Court has also held that,
unlike the earlier version of the statute, the 2003 version of the forum non conveniens statute
"does not contain language placing the burden of proof on a particular party in regard to the
factors." (Jd, at 927; In re Gen. Elec. Co., 271 S.W.3d 681, 687 (Tex. 2008).) Because
substantial justice requires that a motion to dismiss based on forum non conveniens be reviewed
prior to trial, a large number of mandamus applications have been decided under that statute. In
reviewing the decisions of the Texas Supreme Court and the Texas Court of Appeals, it is clear
that Texas favors dismissals based on forum non conveniens in any action in which the litigation
would and should have been brought in the jurisdiction in which the employment relationship or
injury occurred. In re BPZ Resources, Inc., 359 S.W.3d 866 (Houston-14th Dist. 2012)(Crew
members of a Peruvian oil tanker's cause of action dismissed to allow litigation in Peru.
Allegations in that case that decisions by a parent company in Houston to step up production or
-11-
avoid maintenance were insufficient to retain the Houston forum.) Schippers v. Mazak Props.,
Inc., 350 S.W.3d 294 {Texas. App.-San Antonio 201l){Dismissal of wrongful death action
related to Texas airplane crash, where Florida was location of survivors of the passengers killed,
the Florida plane, and the Florida owner.) Mantle Oil & Gas, LLC, 426 S.W.3d 182 (Houston-1st
Dist. 2012)(Dismissal of Louisiana residents affected by the blowout of a Louisiana oil well
operated by a Texas limited liability company in favor of Louisiana jurisdiction.) Sammons &
Berry, P.C. v. Nat'/ Indem. Co., 2014 WL 3400713 (Tex. App.-Hous. 14th Dist.)(Texas lawsuit
dismissed in favor of New Mexico, where accident, accident participants, and employment
relationship all existed in New Mexico and not in Texas.)
VIII. CONCLUSION
In litigation between Kansas parties over an accident that occurred in Kansas related to an
employment relationship in Kansas, for which Kansas law will apply, a petition filed in Fort
Bend County, Texas has little, if any, relationship to the cause of action. This Court should
dismiss Plaintiffs 1 cause of action pursuant to Tex. Civ. Prac & Rem. Code§ 71.05l(b) in favor
of the filing of this cause of action in Montgomery County, Kansas.
WHEREFORE, premises considered, CVR Energy, Inc. and CVR Refining, LP reiterate
their plea that this case be dismissed in light of the forum non conveniens factors outlined herein,
that the case be allowed to proceed, if at all, in the state of Kansas, and that the Defendants
receive any and all further relief to which they are entitled
Phillip D. Sh
Texas State B No.
-12-
808 Travis, 20th Floor
Houston, TX 77002
Telephone: (713) 632-1700
Telefacshnile: (713) 222-0101
Email: sharp@mdjwlaw.com
ATTORNEYSFORDEFENDANTSCVR
ENERGY, INC. AND CVR REFINING, LP
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was served
pursuant to Rules 21 and 21 a of the Texas Rules of CiviJ Procedure, via fax and/or email on the
151 day of June, 2015, upon the following counsel of record:
Gary M. Riebschlager
The Riebschlager Law Firm
801 Congress, Suite 250
Houston, TX 77002
Email: gary@riebschlagerlaw.com
Richard L. Tate
Kristin Reis
Tate, Moerer & King, LLP
206 South Second Street
Richmond, TX 77469
Email: rltate@tate-law.com
kreis@tate-law.com
Attorneys for Plaintiffs
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EXHIBIT 1
CAUSE NO. 15-DCV-220330
DONALD R. COLLIER, JENNIFER J. § IN THE DISTRICT COURT OF
COLLIER, DALE A. NIEMEYER, and §
WENDY NIEMEYER, §
§
Plaintiffs, §
vs. § FORT BEND COUNTY, TEXAS
§
CVR ENERGY, INC. and §
CVR REFINING, LP, §
§
Defendants. § 268TH JUDICIAL DISTRICT
AFFIDAVIT OF EDMUNDS. GROSS
STATE OF KANSAS )
) ss:
COUNTY OF JOHNSON )
COMES NOW the affiant, who Is of sound mind and majority, and after first being
placed upon his oath, states:
1. I, Edmund S. Gross, served as the General Counsel to CVR Energy, Inc••
CVR Refining, LP. and Coffeyville Resources Refining & Marketing. LLC ("CRRM 11), for
a number of years prior to my retirement on December 31, 2014.
2. I have personal knowledge of the facts and lnfonnation provided below,
and I am competent to testify conceming these matters.
3. The accident which injured Donald R. Collier and Dale A. Niemeyer
occurred while they worked at the refinery of Coffeyville Resources Refining &
Marketing, LLC, all In Coffeyville, Kansas, on July 28, 2014. Two other CRRM
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employees were also injured, one fatally, in the accident. All employees or their families
received workers' compensation benefits for the injuries and losses sustained.
4. The accident occurred when one of CRRM's pumps within the refinery,
P-2217, experienced a shaft seal failure which caused the release of a volatile vapor
which Ignited.
5. The Investigation of the pump failure was undertaken at the refinery in
Coffeyville, Kansas and at a shop located In Lee's Summit, Missouri. The pump, which
is estimated to weigh 1,000 pounds, Is stored in Coffeyville, Kansas.
6. All witnesses to the accident were either CRAM employees who were at
work at the time, or medical or emergency personnel from the Coffeyville, Kansas area
who arrived soon thereafter.
7. I believe that the majority of the physicians, heaHhcare providers and
hospitals that Initially cared for Mr. Collier and Mr. Niemeyer are either in Kansas or in
the adjacent areas of Tulsa, Oklahoma.
8. CVR Energy, Inc. Is registered to do business and doing business In the
State of Kansas. CVR Energy, Inc. Is amenable to process In the State of Kansas
through Its resident agent, The Corporation Company, Inc., 112 SW 7th Street, Suite
3C, Topeka, Kansas, 66603.
9. CVR Refining, LP Is registered to do business and doing business in the
State of Kansas. CVR Refining, LP Is amenable to service within the State of Kansas
through Its resident agent, Corporate Service Company, 200 SW 30th Street, Topeka,
Kansas, 66611.
-2-
, •
Further affiant saith naught.
Edmund S. Gross
Subscribed and sworn to before me, a Notary Public in and for said County and
State, by EdmundS. Gross, on thisale~ day of May, 2015.
Notary Public
My Appointment Expires:
{,-~1-17
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Tab 8
Filed
8/4/2015 2:39:53 PM
Annie Rebecca Elliott
District Clerk
Fort Bend County, Texas
Sunset Romo
CAUSE NO. 15-DCV-220330
DONALD R. COLLIER, JENNIFER J. § IN THE DISTRICT COURT OF
COLLIER, DALE A. NIEMEYER, and §
WENDY NIEMEYER, §
§
Plaintiffs, §
vs. § FORT BEND COUNTY, TEXAS
§
CVR ENERGY, INC. and §
CVR REFINING, LP, §
§
Defendants. § 268TH JUDICIAL DISTRICT
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
DEFENDANTS' MOTION TO DISMISS PURSUANT TO
TEXAS CIVIL PRACTICE & REMEDIES CODE CHAPTER 71.051
TO THE HONORABLE COURT:
COME NOW the Defendants, CVR ENERGY, INC. ("CVR Energy") and CVR
REFINING, LP ("CVR Refining") (collectively, "CVR"), and submit this Supplemental
Memorandum in Support of their Motion to Dismiss the claims of the Plaintiffs under the
Texas doctrine of forum non conveniens, pursuant to Chapter 71.051 of the Texas Civil
Practice & Remedies Code
This Supplemental Memorandum will establish that:
1. Defendants• Motion to Dismiss under the Texas doctrine of forum non
conveniens was filed on June 1, 2015.
2. On July 6, 2015, Defendants responded to Plaintiffs• Rule 194 Request for
Disclosure.
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3. Through that Disclosure (Exhibit 1). Defendants identified 34 potential
witnesses with knowledge of the relevant facts associated with the accident. Of those
witnesses identified:
• 29 are residents of Kansas,
• 3 are residents of Oklahoma or Missouri,
• 2 ( 1 being an expert) are residents of Texas.
4. Defendants' disclosures further identified Coffeyville Resources Refining &
Marketing, LLC ("CRRM"), which is located in Coffeyville, Kansas, as a Responsible
Third Party ("RTP").
5. Defendants have not yet learned which health care providers served
Donald R. Collier and Dale A. Niemeyer. However, to the best of Defendants' belief, all
such health care providers are located in Kansas, Oklahoma and/or Missouri. There
are no Texas heaHh care providers associated with the care and treatment of Mr. Collier
or Mr. Niemeyer.
I.
THE GULF OIL FACTORS STRONGLY MANDATE DISMISSAL
IN FAVOR OF A KANSAS FORUM
Defendants' original forum non conveniens Memorandum supporting the Motion
to Dismiss (filed 06/01/15; Doc. 12) preliminarily addressed the Gulf Oil factors
mandating dismissal (/d. at p. 5). The specific witness and accident information within
the Rule 194 Disclosure (Exhibit 1) subsequently provided the details in support of
dismissal. The Texas forum non conveniens statute, Chapter 71.051, has only been in
existence since 2003. In 201 0, the Texas Supreme Court determined that a Writ of
-2-
Mandamus was appropriate where a district court, after an erroneous consideration of
the statutory factors, did not follow the statutory mandate that "the court shall decline to
exercise jurisdiction under the doctrine of forum non conveniens." (Emphasis supplied.)
In re Ensco Offshore lnt7 Co., 311 S.W.3d 921 (2010). Since that time, Fort Bend
County's First and Fourteenth appellate districts have rendered a large number of very
thorough decisions Interpreting the forum non conveniens statute. Those decisions,
which are discussed below, provide unmistakable guidance to this Court. Where
Kansas residents were Injured In a Kansas accident while performing work for their
Kansas employer. the case should be tried in Kansas under Kansas law. Texas has
little or no interest in the matter and Texas courts and jurors should not be burdened
with administering and resolving the litigation. The cause of action should be dismissed
in favor of Kansas litigation.
A. Witnesses to the Refinery Accident Cannot be Required to Appear.
Plaintiffs premise jurisdiction and venue in Fort Bend County upon the fact that
the CVR Defendants operate a joint office in Sugar Land, Texas. However, the location
of this office is the only real connection with Texas. As the Court may have observed
from Exhibit 1, virtually all witnesses to the accident are residents of Coffeyville.
Kansas, or South Coffeyville, Oklahoma. Two witnesses, who have moved since the
accident, are residents of Wynnewood, Oklahoma. Only two witnesses could be
compelled to testify by Texas process. One Texan, who investigated the incident,
works in the Sugar Land offices; the other Texan is an expert witness. The health care
-3-
providers attending to Mr. Collier and Mr. Neimeyer are also in the Kansas and
Oklahoma areas. Tex. R. Civ. P. 176.3(a) states:
A person may not be required by subpoena to appear or produce
documents or other things in a county that is more than 150 miles from
where the person resides or is served.
The Texas Supreme Court has previously held that "the lack of compulsory process in
Texas for reaching the great majority of witnesses would be substantially unjust!' In re
Ensco, 311 S.W.3d 921, 925 (2010); In re General Electric, 271 S.W.3d 681, 689
(2008). Here, virtually none of the factual witnesses can be compelled to testify.
"Reasonable access to witnesses and evidence is a fundamental need in regard to any
trial ...11 In re General Electric, 271 S.W.3d at 691-92. See also, In re BPZ Res., 359
S.W.3d 866, 879 (Tex. App.-Hous. [14 Dist.]), and Schippers v. Mazak Properties, Inc.,
350 S.W. 3d 294, 296 (Tex. App.-San Antonio 2011 ).
B. Available Forum.
"A foreign forum is available When the entire case and all the parties can come
within the jurisdiction of that forum.~~ Vinmar Trade Fin. Ltd. v. Uti/. Trailers de Mexico,
336 S.W.3d 664, 674 (Tex. App.-Hous. [1st Dist.]2010); In re Dauajare-Johnson, 2014
WL 3401094 (Tex. App.-Hous. [14 Dist.]). Here, Kansas is an available forum because
all witnesses are amenable to its jurisdiction, it is the site of the accident, it is the site of
the employment relationship, and it is the jurisdiction in which workers• compensation
benefits were provided. "An alternative forum is adequate if the parties will not be
deprived of all remedies or treated unfairly, even though they may not enjoy the same
benefits as they might receive In an American court." Pirelli Tire, LLC, 247 S.W.3d 670,
-4-
678 (Tex. 2007) (quoting Vasquez v. Brldgestone/Firestone, Inc., 325 F.3d 665, 671
(5th Cir. 2003)). The substantive law of the foreign forum is presumed to be adequate
unless the plaintiff makes some showing to the contrary, or unless conditions to the
foreign forum made known to the court plainly demonstrate that the plaintiff is unlikely to
obtain basic justice there. Vlnmar Trade Fin. Ltd., 336 S.W.3d at 674; In re Dauajare-
Johnson, 2014 WL 3401 094 at *5. Obviously, Kansas is an adequate forum in which
basic justice is available.
C. Kansas Law Will Apply to This Accident.
Texas courts follow the "most significant relationship test" set out in the
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6 ("RESTATEMENT') to
determine the applicable law in tort cases where the injury occurred outside the state of
Texas. See, Zermeno v. McDonnell Douglas Corp., 246 F. Supp. 2d 646, 655 (S.D.
Tex. [Houston] 2003); Sacks v. Four Seasons Hotel, Ltd., 2006 WL 783441 (citing
Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979)). Section 145 of the
RESTATEMENT outlines the factual matters to consider in applying the Section 6
princ1ples to a given case. Applying the "most significant relationship test, II the present
facts compel the application of Kansas substantive law.
1. RESTATEMENT Section 6 General Factors.
Section 6 of the RESTATEMENT Identifies the general factors relevant to the
choice of law question. As the Court will see, an analysis of these considerations
weighs heavily In support of applying Kansas law:
(a) the needs of the Interstate and international systems;
-5-
(b) the relevant policies of the forum;
(c) the relevant policies of other interested states and the
relative Interests of those states in the determination of the
particular issue;
(d) the protection of the justified expectations;
(e) the basic policies underlying the particular field of law;
(f) certainty, predictability and uniformity of result; and
(g) ease In determination and application of the law to be applied.
See RESTATEMENT (SECOND) OF CONFLICT OF LAWS§ 6.
a. Needs of the Interstate and International Systems. The goal of
this Initial factor Is to harmonize relations between the states and to facilitate
commercial activities between them. See, Sacks v. Four Seasons Hotel, Ltd.•
2006 WL 783441 at *17 (E.D. Tex.-Texarkana Div.). Statutory workers'
compensation immunity is the most significant difference between the Kansas
and Texas laws relevant to this case. 1
b. Relevant Policies of the Forum. Texas is the site of the joint
headquarters of CVR Energy, Inc. and CVR Refining, LP, which possess an
indirect equity interest in Plaintiffs' employer, CRRM. With that lone exception,
Texas has no recognizable interest In protecting Kansas citizens from Kansas
injuries occurring in Kansas by a company doing business In Kansas. The ISOM
Kansas would not allow Plaintiffs to circumvent the workers' compensation
immunity by allegations of gross negligence. K.S.A. 44-501 b(d); Duncan v. Perry
Packing Co.• 162 Kan. 79, 174 P.2d 78 (1946).
-6-
fire occurred on the premises of Coffeyville Resources Refining & Marketing,
LLC's refinery, located in Coffeyville, Kansas. This Kansas fire harmed Kansas
residents who were full-time employees of their Kansas-based employer. For
their injuries, the Kansas residents received Kansas workers' compensation.
Texas has no real interest in the litigation.
c. Relevant Policies and Interests of Other Interested States. The
relevant policies of Kansas impact this litigation. Kansas is the residential state
of Donald R. Collier and Dale A. Niemeyer. Kansas is the state where the
employment relationship between Mr. Collier, Mr. Niemeyer and Coffeyville
Resources Refining & Marketing, LLC ("CRRM") existed. Kansas is the state
where the accident occurred. Kansas law governed the payment of workers'
compensation benefits to Mr. Collier and Mr. Niemeyer and governs the
subrogation rights of CRRM and its insurer. Texas has no real interest in this
matter.
d. Protection of Justified Expectations. According to comment (g)
on Subsection 2 of Section 6 of the RESTATEMENT (SECOND) OF
CONFLICTS OF LAW, the protection of justified expectations is least appropriate
in negligence cases. Specifically, comment (g) states:
There are occasions, particularly on the area of negligence, when
the parties act without giving thought to the legal consequences of
their conduct or to the law that may be applied. In such situations,
the parties have no justified expectations to protect, and this factor
can play no part In the decision of a choice-of-law question.
(Emphasis added.)
-7-
e. Basic Policies Underlying the Particular Field of Law. The
workers' compensation policies of Texas have no relationship to the instant
litigation. Here, Kansas workers' compensation benefits are being provided to
Kansas workers who were injured in Kansas. Kansas had an immediate interest
to insure that Its public policies are correcUy implemented to regulate its
employers and its employees.
f. Certainty, Predictability and Uniformity of Result. The
principles of certainty, predictability and uniformity of result would be furthered by
application of Kansas law to this Kansas accident. Plaintiffs have already and
are presently receiving the statutory benefits available to them through the
workers' compensation law of Kansas. Utilization of the statutory workers'
compensation code of the state in which the accident occurred is the best means
of obtaining a certain, predictable and uniform result.
g. Ease in Determination and Application of the Law to be
Applied. The application of Kansas law to this case is best accomplished by a
Kansas Court. nEven the possibility that foreign law applies to a dispute is
sufficient to warrant dismissal on forum non conveniens grounds." In re
Dauajare-Johnson, 2014 WL 3401094 at *11 (Tex. App.-Hous. [14 Dist.]), citing
Vlnmar, 336 S.W.3d at 679.
2. RESTATEMENT Section 145 Specific Factors.
While Section 6 of the RESTATEMENT "sets out the general principles by which
the more specific rules are to be applied.'' Section 145 of the RESTATEMENT provides
-8-
the more specific criteria applicable to a tort case. Gutierrez, 583 S.W.2d 312, 318-19
(Tex. 1979). Section 145 emphasizes the following four factors:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil[e], residence, nationality, place of
Incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the
parties is centered.
(/d. at 319 (quoting RESTATEMENT (SECOND) OF CONFLICTS OF LAW § 145).)
See a/so, Uberty Mutual Ins. Co. v. Transit Mix Concrete & Materials Co., 2013 WL
3329026 at *5 (Tex. App.-Texarkana).
nln an action for a personal injury, the local law of the state where the injury
occurred determines the rights and liabilities of the parties ..." (/d. at *6.) Here, the
injuries occurred In Kansas. The pump seal leak occurred in Kansas. The fire occurred
in Kansas. The conduct associated with the pump seal leak and fire occurred in
Kansas. The domicile, residence, place of business of the parties occurred in Kansas.
The employment relationship between Mr. Collier. Mr. Niemeyer and their employer
occurred in Kansas. Moreover, virtually all witnesses to the accident reside In Kansas.
It Is difficult to detennine how the law of any other forum could apply.
D. The Fact that Kansas Law Is Different is Irrelevant.
Plaintiffs are likely to argue that the law of Kansas is different in many respects. 2
However, the fact "that the substantive law of the alternative forum may be less
2
See footnote 1 above.
-9-
favorable to the plaintiff Is entitled to little, if any, weighf' In a choice of law or a forum
non conveniens decision. In re Mantle Oil & Gas, LLC, 426 S.W.3d 182, 189 (Tex.
App.-Hous. [1st Dist.]). (Louisiana was an adequate alternative forum, despite the fact
that plaintiffs claims would be barred under the Louisiana statute of limitations and that
punitive damages were not recoverable in Louisiana.); see also, In re Pirelli Tire, LLC,
247 S.W.3d at 678.
In Sammons & Berry, P.C. v. Nat11ndemnity Co., 2014 WL 3400713 (Tex. App.-
Hous. [14 Dlst.]), the court stated:
"[t]hat the substantive law of an alternative forum may be less favorable to
the plaintiff is entitled to little, if any, weight." In re Pirelli Tire, L.LC., 247
S.W.3d at 678. Forum non conveniens requires an available remedy in the
alternative forum, but does not require the same cause of action or
equivalent relief be available. In re Gen. Elec. Co., 271 S.W.3d at 687; In
re Pirel/1 Tire, L.L.C., 247 S.W.3d at 678 (holding Mexico was adequate
forum even though it may not afford cause of action for strict liability, or
provide for "American-Style" discovery or right to jury); Berg v. AMF, Inc.,
29 S.W.3d 212, 216-17 (Tex.App.-Houston [14th Dist.] 2000, no pet.)
(holding Canada was adequate forum although it "does not recognize
strict liability causes of action, has monetary limits on non-economic
damages, and only allows for recovery of punitive damages upon a
showing of intentional conduct"); Gomez de Hernandez v.
Bridgestone/Firestone North Am. Tire, L.L.C., 204 S.W .3d 473, 483
(Tex.App.-Corpus Christi 2006, pet. denied) (CIThe primary consideration Is
whether the alternate forum entitles appellants to a remedy for their
losses, even if the compensation available under the remedy is less than
what may be recovered in a Texas court.").
The First District Texas Court of Appeals has held that "even the possibility that foreign
law applies to a dispute is sufficient to warrant dismissal on forum non conveniens
grounds." See, Vinmar, 336 S.W.3d at 679. The Fourteenth District did likewise in
Sammons. Here, Kansas law should clearly be applied by a Kansas court.
E. Texas Should not Have to Bear the Burden of Hearing This Case.
-10-
Obviously, this is an accident which occurred to Kansas residents, employed at a
Kansas place of business, through a Kansas employment relationship, for which
Kansas workers' compensation benefits were provided. Texas has little, if any,
relevance to the litigation. "It is fundamentally unfair to burden the people of Texas with
the cost of providing courts to hear cases that have no significant connection with the
State.n In re Mantle Oil & Gas, LLC, 426 S.W.3d 182, 189, 194-195 (Tex. App.-Hous.
[1st Dist.]), citing In re Pirelli Tire, 247 S.W.3d at 676 (quoting In re Smith Barney, 975
S.W.2d 593, 598 (Tex. 1998); see also, In re Dauajare-Johnson, 2014 WL 3401094
(Tex. App.-Hous. [14 Dist.]) at *11.
II.
PLAINTIFFS' ARGUMENT THAT DEFENDANTS' NEGLIGENCE
OCCURRED IN TEXAS IS INSUFFICIENT
The Plaintiffs' Original Petition does not identify any specific acts of negligence
associated with these Defendants. The closest identification of alleged negligence
occurs at paragraphs 19 and 22:
19. On the occasion In question, CVR, by and through their
officers, employees, agents and representatives, independently committed
acts of omission and commission which collectively and severally
constitute negligence that proximately caused the deaths of Plaintiffs'
decedents and damages to Plaintiffs. 3
22. The corporate domicile of the CVR Defendants is Sugar
Land, Texas. The acts of negligence and gross negligence of Defendants
CVR occurred in Texas by and through its (sic] corporate officers,
directors and employees in Texas.
The Court should observe that the allegation is in error; neither Plaintiff died in
the fire.
-11-
Such allegations are insufficient to avoid a dismissal on a forum non conveniens
basis. Similar arguments were presented by the plaintiffs of In re BPZ Resources, Inc.•
359 S.W.3d 866 (Tex. App.-Hous. [14 Dist]). That appellate court stated:
Though the relators are Texas corporations who made allegedly negligent
decisions that allegedly led to the explosion on the Supe, consideration of
all the Lauritzen- Rhodits factors, we conclude as a matter of law, that
Peruvian law applies to the real parties' claims. (/d. at 878.) ...
We presume, without deciding, that the relators made decisions in
Houston that were a legal cause of the explosion when they allegedly
ordered production on the platform to be ..ramped up" to quickly generate
needed cash, even though they allegedly knew that the operations
involved dangerous procedures, insufficient equipment, and unseaworthy
vessels. Under this presumption, the real parties' injuries would have
resulted in part from acts or omissions that occurred in Texas.
Nonetheless, these alleged acts and omissions in Texas would be a more
remote cause of the real parties' injuries than the alleged acts or
omissions In Peru of Paolillo, the crew of the Supe, and BPZ Peru. (/d. at
880)...
We conclude that the balance of the parties' private interests and the
public interest of the state predominate in favor of this action being
brought In a Peruvian court. [Citations omitted.] (/d.)
Similar arguments received Identical results in In re Mantle 011 & Gas, LLC, 426
S.W.3d 182 (Tex. App.-Hous. [1st Dist]), where the plaintiffs contended that:
... because Mantle 011 is a Texas limited liability company and made
decisions regarding the operation of the well from its Texas headquarters,
Texas courts and juries have a "significant interest in how [it] operates as
a business. Essentially, the Alcee plaintiffs claim that Mantle Oil
negligently operated the Well from its Texas headquarters which caused
the blowout, and, therefore, because the acts in Texas caused their
damages, Texas has a local interest in adjudicating this dispute... ."(/d. at
195.)
The Mantle court rejected these arguments holding that the plaintiffs were not
Texas residents and Texas generally afforded "less deference to a non resident's forum
-12-
choice." In re Mantle, 426 S.W.3d 182, 188 (Tex.App.-Hous. [1st Dist.]). The court
further stated:
n• • •it is undisputed that the Alcee plaintiffs are Louisiana residents. that
the blowout occurred in Louisiana, and that any alleged personal injuries
and property damage occurred in Louisiana. Louisiana has a substantial
interest in making sure that its citizens and their property are not harmed
by oil and gas operations within its borders.~~ (/d. at 195.)
After noting that the witnesses and evidence were primarily in Louisiana and that
compulsory process was unavailable to compel witness testimony in Texas, the First
District Court of Appeals concluded:
"It is fundamentally unfair to burden the people of Texas with the cost of
providing courts to hear cases that have no significant connection with the
state. 11 (/d. at 189.)
Thus, arguments that the decisions of companies headquartered in Texas caused or
contributed to accidents in the out-of-state operations of affiliates or subsidiaries have
been rejected by the First and the Fourteenth Texas Courts of Appeal. In each case,
the Texas Courts of Appeal dismissed the litigation upon a forum non conveniens
analysis statutorily enacted by Section 71.051 of the Texas Civil Practice & Remedies
Code due to the fundamental:
(1) need for reasonable access to out-of-state witnesses and evidence,
(2) ease of having the out-of-state law administered by the courts of
that state. and
(3) burden which trial would place upon the people of Texas for issues
not significant to Texas.
Ill.
CONCLUSION
-13-
The rulings of the Texas Supreme Court and the First and Fourteenth appellate
districts present clear decisions on very similar forum non conveniens issues. Those
decisions provide unmistakable guidance to this Court. Where Kansas residents were
injured in a Kansas accident performing work for their Kansas employer. the case
should be tried in Kansas under Kansas law. Texas has little or no interest in the matter
and Texas courts and jurors should not be burdened with administering and resolving
the litigation. The cause of action should be dismissed in favor of Kansas litigation.
Respectfully submitted,
SMITHYMAN & ZAKOURA, CHARTERED
Lee . Smithyman
KS Supreme Court# 391
750 Commerce Plaza II
7400 West 11 Oth Street
Overland Park, KS 6621 0-2362
Telephone: (913) 661-9800
Telefax: (913) 661-9863
Email: lee@smizak-law.com
ATTORNEYS FOR DEFENDANTS
-14-
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has been
served upon the following counsel of record in accordance with the Texas Rules of Civil
Procedure on the 4th day of August, 2015.
Gary M. Riebschlager
The Riebschlager Law Firm
801 Congress, Suite 250
Houston, TX 77002
Email: gary@riebschlagerlaw.com
Richard L. Tate
Kristin Reis
Tate, Moerer & King, LLP
206 South Second Street
Richmond, TX 77469
Email: rltate@tate-law.com
kreis@tate-law.com
Attorneys for Plaintiffs
-15-
EXHIBIT 1
CAUSE N0.15-DCV·220330
DONALD R. COLLIER, JENNIFER J. § IN THE DISTRICT COURT
COLLIER, DALE A. NIEMEYER, AND §
WENDY NIEMEYER, §
§
Plaintiffs, §
vs. § FORT BEND COUNTY, TEXAS
§
CVR ENERGY, INC. AND §
CVR REFINING, LP, §
§
Defendants. § 268TH JUDICIAL DISTRICT
DEFENDANTS• RESPONSE TO PLAINTIFFS• REQUEST
FOR DISCLOSURE· RULE 194
TO: Plaintiffs Donald A. Collier, Jennifer J. Collier, Dale A. Niemeyer, and Wendy
Niemeyer, by and through their attorney of record, Gary M. Riebschlager, 801
Congress, Suite 250, Houston, Texas, noo2
COME NOW the Defendants, CVR Energy, Inc. CUCVR Energy") and CVR
Refining, LP ("CVR Refining"), and serve their Responses to Plaintiffs• Request for
Disclosure in accordance with Rule 194 of the Texas Rules of Civil Procedure.
Respectfully submitted,
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
By:.~~-~~~
Phillip DO SharP ~
Texas State Bar No. 18118680
808 Travis, 20th Floor
Houston, TX 77002
Telephone: (713) 632-1700
Telefacsimile: (713) 222-01 01
Email: sharp@mdjwlaw.com
SMITHYMAN & ZAKOURA, CHARTERED
By: _ __:::=~~~~=~--
Lee M. Smithyman
KS Supreme Court#O 91
750 Commerce Plaza II
7400 West 11 Oth Street
Overland Park, KS 6621 0-2362
Telephone: (913) 661-9800
Telefax: (913) 661-9863
Email: lee@smizak-law.com
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has been
served upon the following counsel of record in accordance with the Texas Rules of Civil
Procedure, by forwarding same by Federal Express on the 6th day of July, 2015, for
delivery on July 7, 2015.
Gary M. Riebschlager
The Riebschlager Law Firm
801 Congress, Suite 250
Houston, TX 77002
Email: gary® riebschlagerlaw.com
Richard L. Tate
Kristin Reis
Tate, Moerer & King, LLP
206 South Second Street
Richmond, TX n469
Email: rltate @tate-law.com
kreis@tate-law.com
SMITHYMAN & ZAKOURA, CHARTERED
2
RESPONSES TO PLAINTIFFS' REQUESTS FOR DISCLOSURE
(a) The correct names of the parties to the lawsuit.
Response: Plaintiffs have correctly named the two Defendants. There is an issue as
to whether the Plaintiffs have a cause of action against either of the
named Defendants. Defendants will name Coffeyville Resources Refining
& Marketing, LLC (11 CRRM 11 ) as an immune, but appropriate responsible
third party.
(b) The name, address and telephone number of any potential parties.
Response: Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
CRAM is an immune responsible third party which will have a subrogation
lien upon all proceeds potentially recovered by Plaintiffs from these
answering Defendants.
(c) The legal theories and, in general, the factual bases of the responding party's
claims.
Response: These Defendants, as corporate parents of CRAM, are immune for all
non-delegable safety duties of the subsidiary employer, CRAM. Thus, to
that extent, these parties have immunity on Plaintiffs' claims. Further,
these Defendants have no negligence whatsoever associated with the
injuries sustained by Donald A. Collier and Dale A. Niemeyer. Finally, the
potential negligence of the employer, CRRM, should be compared even
though CRAM has immunity by virtue of providing workers• compensation
benefits pursuant to Kansas Statute.
CRAM will be subrogated to all Plaintiffs• proceeds of recovery under
K.S.A. 44-504.
See Defendants' Answer as well as Defendants• statements provided
above. See Defendants' Motion to Dismiss for Forum Non Conveniens.
(d) The amount and any method of calculation of economic damages.
Response: NIA
3
(e) The name, address and telephone number of persons having knowledge or
relevant facts and a brief statement of each identified person's connection with
the case.
Response: 1. Steve K. Adel (Rotating Equipment Engineer)
Coffeyville Resources Refining & Marketing, LLC
400 N. Linden Street, PO Box 1566
Coffeyville, KS 67337
(620) 251-4000
Interviewed by OSHA
2. Corey Beacom, CSP
Compliance Safety & Health Officer
Wichita Area Office
OSHA - U.S. Department of Labor
100 N. Broadway, Suite 470
Wichita, KS 67202
316/269-6644, Ext. 120
Conducted Interviews on 08/26/14
3. Ryan C. Beurskens (Biller-Loader)
Coffeyville Resources Refining & Marketing, LLC
400 N. Linden Street, PO Box 1566
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
4. Jim Berquist (Rotating Equipment Superintendent)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Member of Incident Investigation Team
5. Donald Collier
Plaintiff
4
6. Janice T. DeVelasco (Vice President, Environmental,
Health & Safety)
CVR Energy, Inc.
2277 Plaza Drive, Suite 500
Sugarland,TX 77479
(281) 207-3200
Supervised investigation
7. Debbie Edwards (Shift Supervisor)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
8. Marcus D. Grissom (Pumper-Biller-Loader)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
9. Tucker Hargis (Area 1 Lead Operator)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
10. Leonard W. Hawthorne (Pumper-Biller-Loader Lead Qualified)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
s
11. Josh Holt (Safety Specialist Tech ERT)
Coffeyville Resources Refining & Marketing. LLC
400 North Unden Street
Coffeyville. KS 67337
(620) 251-4000
Provided a statement.
12. Jerry Hockett (Board Operator Crude)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville. KS 67337
(620) 251-4000
Provided a statement.
13. Bob Hunt (Operator Waste Water)
Coffeyville Resources Refining & Marketing. LLC
400 North Linden Street
Coffeyville. KS 67337
(620) 251-4000
Provided a statement.
14. Dennis Irwin (Process Safety Manager)
Coffeyville Resources Refining & Marketing. LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Interviewed by OSHA; Signatory to Incident Investigation Report
15. Jerad Jones (Operator in Area 1)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
6
16. Ray D. Kelm, P.E.
Kelm Engineering, LLC
907 S. Friendswood Drive, Suite 202
Friendswood, TX 77546
281/993-3717
Reported on his investigation of pumps number 2216 and 2217
17. Keith Kuehn (Operations Superintendent)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
18. Rahul Korpe (Principal Engineer Process Safety Management)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
19. Steve Lafferty (Complex Safety Manager)
Coffeyville Resources Refining & Marketing, LLC
400 North Unden Street
Coffeyville, KS 67337
(620) 251-4000
Interviewed by OSHA; Signatory to Incident Investigation Report
20. Krls L. Lenoch
Assistant Area Director
Wichita Area Office
OSHA - U.S. Department of Labor
100 N. Broadway, Suite 470
Wichita, KS 67202
316/269-6644
Conducted Interviews on 08/26/14
7
21. Dustin Martin (Operator 2 in Area 6)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
22. Tracy Maxson (Board Operator Cat)
Coffeyville Resources Refining & Marketing, LLC
400 North Unden Street
Coffeyville, KS 67337
Member of the Incident Investigation Team
23. Michael D. McFetters
QA Engineer
JCI Industries, Inc.
1161 SE Hamblen Road
Lee's Summit, MO 64081
(816) 525-3320
Provided Report of August 11, 2014 regarding pump P-2216
24. Dale Niemeyer
Plaintiff
25. Bryan Oliver (JDC Crude)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
26. Jason Ramsey (Operator 1 in Area 6)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement
8
27. David W. Ruark (Lead Operator Crude Pumping)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
28. Randy Scott (Board Operator Crude)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
29. Robert Stevenson (Foreman Operations Area)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Interviewed
30. Richard Vogel (Corporate Security Manager}
Wynnewood Refining Company LLC
PO Box305
906 South Powell
Wynnewood, OK 73098
405/665-6565
Co-Leader of Incident Investigation Team
31. Joshua Warner (Safety Specialist Technician)
Wynnewood Refining Company LLC
PO Box305
906 South Powell
Wynnewood, OK 73098
405/665-6565
Co-Leader of Incident Investigation Team
9
32. Mark Weber (Lead Operator HDS)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
33. Howard Webster (Operator 2)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Provided a statement.
34. Terry Wlttum (Training SupeNisor)
Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
Member of Incident Investigation Team
(f) For any testifying expert:
(1) the expert's name, address and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert's mental impressions and opinions
and a brief summary of the basis for them, or if the expert is not retained
by, employed by, or otherwise subject to the control of the responding
party, documents reflecting such information;
(4) if the expert is retained by, employed by or otherwise subject to the control
of the responding party:
(A) all documents, tangible things, reports, models or data compilations
that have been provided to, reviewed by, or prepared by or for the
expert in anticipation of the expert's testimony; and
(B) the expert's current resume and bibliography.
10
Response: None yet designated. Defendants will do so per the scheduling order
issued in this or subsequent litigation.
(g) Any discoverable indemnity and insuring agreements.
Response: Provided at CVR-03756 through CVR-04165.
(h) Any discoverable settlement agreements.
Response: None.
(i) Any discoverable witness statements.
Response: See documents produced by Defendants in response to Plaintiffs' Request
for Production of Documents.
0) In a suit alleging physical injury and damages from the occurrence that is the
subject of the case, all medical records and bills that are reasonably related to
the injuries or damages asserted or, in lieu thereof, an authorization permitting
the disclosure of such medical records and bills.
Response: N/A
(k) In a suit alleging physical or mental injury and damages from the occurrence that
is the subject of the case, all medical records and bills obtained by the
responding party by virtue of an authorization furnished by the requesting party.
Response: N/A
(I) The name, address and telephone number of any person who may be
designated as a responsible third party.
Response: Coffeyville Resources Refining & Marketing, LLC
400 North Linden Street
Coffeyville, KS 67337
(620) 251-4000
11
Tab9
CAUSE NO. 15-DCV-220330
DONALD R. COLLIER, JENNIFER J. § IN THE DISTRICT COURT OF
COLLIER, DALE A. NIEMEYER, and §
WENDY NIEMEYER §
Plaintiffs, §
v. § FORT BEND COUNTY, TEXAS
§
CVR ENERGY, INC. and, §
CVR REFINING, LP. §
Defendants. § 268TH JUDICIAL DISTRICT
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS PURSUANT TO
TEXAS CIVIL PRACTICE & REMEDIES CODE CHAPTER 71.051
TO THE HONORABLE COURT:
COME NOW, Plaintiffs DONALD R. COLLIER, JENNIFER J. COLLIER, DALE A.
NIEMEYER and WENDY NIEMEYER in the above-entitled and numbered cause and file this
their Response to Defendants Motion to Dismiss, and would respectfully show unto the Court as
follows:
I. SUMMARY OF THE ARGUMENT
1. How many times has this Court admonished the jury that, "what the lawyers say is not
evidence?" And so it is here. Defendants' offer one lone affidavit of a former General Counsel,
proving little ....the location of the explosion and that Defendants' have some authority to conduct
business in Kansas. Defendants' have wholly failed to prove any of the statutory requisites
pursuant to Tex. Civ. Prac. Rem. Code 71.051 nor any of the factors listed in Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Instead, Plaintiff has proven by
Defendants' own documents and depositions, that they are proper Texas defendants, with
Sugarland, Texas as their principal place of business; Sugarland headquarters; Sugarland
witnesses; Sugarland authorities; and the list goes on. Defendants can hardly complain it is
inconvenient to sue them in their own back yard. Did the lawsuit go to the frozen tundra of Alaska
when Exxon Valdez crashed? No. Exxon was sued right down the road in Houston.
II. ARGUMENT AND AUTHORITIES
2. In general, a forum non conveniens analysis is left to the sound discretion of the Court and
only reversed upon a showing of clear abuse of discretion when all relevant public and private
interest factors have been considered. Quixtar Inc. v. Signature Management Team, 315 S. W .3d
28 (Tex. 201 0).
III. DEFENDANTS' FAILURE OF PROOF
A. Introduction
3. While neither party carries a "burden of proof'' per se in the forum non conveniens analysis,
some factors are not common knowledge and can only be proved. "To the extent evidence is
necessary to support the position of the parties, the trial court must base its findings and decision
on the weight of the evidence, and certainly is entitled to take into account the presence or absence
of evidence as to some issue or position of the party." In re General Electric Company, 271 S.W.
3d 681, 687 (Tex. 2008); See also, Vinson v. American Bureau of Shipping, 318 S. W. 3d 34, 43
{Tex. App-Hou [1st Dist.] 2010).
B. The Gross Affidavit
4. Defendants submit as its sole source of evidence, information or assistance to the Court,
the lone affidavit of its former General Counsel Edmund S. Gross.
5. The analysis of the Gross affidavit reveals little. In paragraphs 3-5, it shows that an
explosion occurred.
6. Paragraph 6 describes the totality of the witnesses as "alf' who were workers at the time,
EMS and doctors; NOT the 34 witnesses described in a desperate last minute designation of
2
witnesses by lawyers desperate to win a motion. Clearly the Gross affidavit conflicts with the last
minute designation by counsel.
7. Paragraph 7 is not based on personal knowledge. Thus Plaintiffs' object to paragraph 7
based on lack of foundation, is legally insufficient and hereby requests paragraph 7 be stricken.
8. Finally, paragraphs 8 and 9 simply state CVR ENERGY and CVR Refining, LP can do
business in Kansas. That's it. There is NO evidence of private interest factors. And there is NO
evidence of public interest factors. Nothing.
9. Defendants have failed in its forum non conveniens analysis by failing to prove the
Gulf Oil factors.
A. Private Interests and Factors
(1) Defendants offered no proof of the relative ease of access to sources of proof. Any
discovery on this issue is no different than any other case. Especially in the case of
LeeAnna Mann and Kari Smith v. CVR Energy, Inc., et al, (hereinafter referred to as "Mann
Smith,,) Cause No. 13-DCV-209679 which is currently before the 434th Judicial District
Court of Fort Bend County, Texas. The CVR Defendants conducted discovery in the Mann
Smith case in Oklahoma for over two and a half years including site studies, plant worker
depositions and others in Oklahoma.
(2) Defendants offered no proof that the availability of compulsory process for
attendance of unwilling witnesses and the cost of obtaining attendance of willing
witnesses. It is still unknown whether Kansas can compel documents from these Texas
defendants or compel the Texas witnesses. CVR conducted many depositions in Oklahoma
in its Mann Smith defense.
3
(3) Defendants offered no proof that the possibility of a view of the premises, if a view
would be appropriate to the action, would be inconvenient to any of the parties.
(4) The enforceability of a Texas Judgment is a non-factor.
(5) Defendants offered no proof that all other practical problems that make trial of the case
easy, expeditious and inexpensive.
B. Public Interests and Factors
I 0. Defendants offered no proof of any kind regarding the public interest factors as cited in
Gu/fOil. Specifically,
(I) Defendants offered no proof that there could be administrative difficulties flowing from
court congestion. In fact, CVR has requested a Fort Bend jury for the Mann Smith case
pending in the 434th Judicial District Court.
(2) Defendants offered no proof that there would be any burden of jury duty imposed on
the citizens of the community with no relation to the litigation. To the contrary, again.
CVR is a local citizen, employs local workers, pays local taxes, seeks protection of Texas
state laws and has sought the haven of a Fort Bend jury for the Mann Smith case pending
in the 434th Judicial District Court.
(3) Defendants offered no proof of there being local interest in having localized
controversies decided at home. Again, CVR is a local citizen, employs local workers, pays
local taxes, seeks protection of Texas state laws and has sought haven of a Fort Bend jury
for the Mann Smith case pending in the 434th Judicial District Court.
(4) Defendants offered no proof of being able to avoid unnecessary problems regarding
conflicts of law, or the application of foreign law. In Mann Smith, CVR made the exact
same argument regarding choice of law by way of Motion to Determine Applicable State
4
Law and Motion for Summary Judgment. The summary judgment on choice of law was
DENIED.
IV. APPLICABLE STATE LAW
11. CVR Defendants repeatedly state that the law of Kansas applies because the explosion
occurred there. While they give lip service to the Restatement factors, ultimately, that is the extent
of the CVR analysis. CVR Defendants had the same exact argument in the Mann Smith case.
12. However, the doctrine of lex loci delicti has long been overruled in this state by the Texas
Supreme Court. Gutierrez v. Collins, 583 S. W.2d 312 (Tex. 1979). The former lex loci doctrine
stated the situs of the injury controlled for purposes of conflicts of law analysis.
13. Today, the proper analysis is the "most significant relationship" test set forth in the
RESTATEMENT (SECOND OF CONFLICT OF LAWS § 145. Hughes Wood Products, Inc. v.
Wagner, 18 S. W.3d 202, 205 (Tex. 2000).
14. The general factors relevant to analysis are:
(a) The needs of the interstate and international systems;
(b) The relevant policies of the forum;
(c) The relevant policies of other interested states and the relative interests of those states
in the determination of the particular issue;
(d) The protection of justified expectations;
(e) The basic policies underlying the particular field of law;
(f) Certainty, predictability and uniformity of result; and
(g) Ease in the determination and application of the law to be applied.
15. Factors that should be considered by Defendants but blatantly ignored in the choice of law
analysis, include:
5
• The principal place of business of the CVR Defendants is Sugar Land, Fort Bend County,
Texas;
• The headquarters and general offices of the executive of the CVR Defendants is Sugar
Land, Fort Bend County, Texas;
• The Board of Directors of the CVR Defendants reside and meet in Sugar Land, Fort Bend
County, Texas;
• Decisions to operate CRRM were made in Sugar Land, Fort Bend County, Texas;
• Decisions regarding the operation, maintenance, financing and safety at CRRM were
made in Sugar Land, Fort Bend County, Texas;
• The CVR Defendants invoke the laws of the State of Texas for its use and benefit.
• Texas, as the forum state, has a significant interest in protecting resident defendants such
as CVR Defendants.
Torrington Co. v. Stutzmen, 46 S. W.3d 829, 849 (Tex. 2000).
V. TEXAS IS A CONVENIENT FORUM FOR THESE TEXAS DEFENDANTS
A. Introduction
16. Defendants are CVR Energy, Inc. and CVR Refining, L.P ., collectively referred to as
"CVR". CVR owns two petroleum related refineries- one in Wynnewood, OK and the other in
Colleyville, KS. Both have exploded.
17. The first explosion occurred on September 28, 2012 in Wynnewood, OK. Suit was filed
against CVR in the 434th Judicial District Court of Fort Bend County, the Honorable Judge
Shoemake presiding, under Cause No. 13-DCV-209679. Judge Shoemake, as previously
mentioned, DENIED all summary judgment motions. The case has been defended by CVR for
two and a half years, with staunch refusal to settle in mediation, in Fort Bend County. Coffeyville
6
is 108 miles from Wynnewood. At NO time has CVR EVER complained of inconvenience. CVR
has AGREED to site evaluations, depositions in Oklahoma, all without complaint regarding
convenience. CVR has requested a Fort Bend County jury to judge their conduct. CVR owns
Wynnewood just as it owns Coffeyville. Both have exploded due to gross mismanagement by
CVR. Both are within 100 miles of each other.
B. Public and Private Interest Factors
18. Again, CVR Energy, Inc. and CVR Refining, L.P. for purposes of the below discussion
will be collectively referred to as "CVR" unless distinction is made.
19. The primary place of business for CVR is Sugarland, Texas. (Exhibit A, C)
20. CVR headquarters is Sugarland, Texas. (Exhibit B)
21. CVR board of directors and all directors are located in Sugarland, Texas. (Exhibit C)
22. CVR pays taxes to the state of Texas. (Exhibit C)
23. CVR Refining-Kansas, pays NO taxes. Has no EIN number, Kansas has no states interest
in CVR. (Exhibit D)
24. Annual Shareholders Meetings are held in Sugarland, Texas. All shareholders, officers,
directors, and executives were required to travel to Sugarland, Texas, the nerve center, on June 17,
2015. (Exhibit E)
25. CVR in Sugarland, Texas is the nerve center for all of its companies by providing services
from Sugarland to all of the CVR companies by way of a Shared Services Agreement. The Shared
Services Agreement is an agreement whereby the Parent Corporation CVR Energy, Inc. loans
personnel and services between the companies. It is best explained in the publicly filed CVR
Refining LP 1OQ at page 27 where the services and control of day-to-day operations are set forth.
(See Exhibit F)
7
Shared Services Agreement
CVR Refining obtains certain management and other services from CVR Energy pursuant
to a services agreement between the Partnership, CVR Refining GP and CVR Energy dated
December 31,2012, as amended. Under this agreement, the Partnership's general partner
has engaged CVR Energy to conduct a substantial portion of its day-to-day business
operations. CVR Energy provides CVR Refining with the following services under the
agreement, among others:
• services from CVR Energy's employees in capacities equivalent to the
capacities of corporate executive officers, except that those who serve
in such capacities under the agreement shall serve the Partnership on a
shared, part-time basis only, unless the Partnership and CVR Energy
agree otherwise;
• administrative and professional services, including legal, accounting
services, human resources, insurance, tax, credit, finance, government
affairs and regulatory affairs;
• management of the Partnership's property and property of its
operating subsidiaries in the ordinary course of business;
• recommendations on capital raising activities to the board of directors
of the Partnership's general partner, including the issuance of debt or
equity interests, the entry into credit facilities and other capital market
transactions;
• managing or overseeing litigation and administrative or regulatory
proceedings, establishing appropriate insurance policies for the
Partnership and providing safety and environmental advice;
• recommending the payment of distributions; and
• managing or providing advice for other projects, including acquisitions,
as may be agreed by CVR Energy and the Partnership's general partner
from time to time.
C. WITNESSES
26. The pleadings of Plaintiffs Donald R. Collier, Jennifer J. Collier, Dale A. Neimeyer, and
Wendy Neimeyer allege corporate control by CVR of its wholly-owned subsidiaries. As a result
8
of such control, CVR is liable and the dominant parent company for the actions of its subsidiary
employer. (Exhibit G)
27. Accordingly, the primary discovery is against CVR - its policies, procedures, email,
budgets, orders, Purchase orders, documents, which CVR controls ... all of which was learned
during the discovery of the company's case pending in the 434th. Assistance of the Texas courts
will be needed to compel these Texas Defendants to produce documents. No showing has been
made that Kansas courts can compel documents from Texas defendants. No showing has been
made that Kansas can compel Texas witnesses to give up their emails.
28. In light of previous discovery, only a Texas court will pry loose these documents from
CVR- Texas based companies whose headquarters are just miles from this Fort Bend County
courthouse.
9. CVR has failed to mention any of its Sugarland witnesses except for Velasco, the current
safety executive.
30. In addition, others are perceived to be necessary.
a. Robert Haugen- Executive Vice President in charge of Refinery. Haugen is in charge
of the day-to-day operation of the refineries. Haugen oversees how each plant is run and
operates. (Deposition attached, Exhibit H)
b. Chris Swanberg -former Executive Vice President in charge of Safety. Safety Executive
in charge at the time of the explosion.
c. Velasco - current Safety Executive.
d. Jay Finks- Mr. Finks explains how CVR controls all monies. The plants, including
CRRM, have no control over capital accounts. All of the money is controlled by corporate
CVR. (Deposition attached, Exhibit I)
9
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Court enter an Order
denying Defendants Motion to Dismiss and retain this Case on the Court's docket in the 268th
Judicial District Court of Fort Bend County, Texas and further prays for such other and further
relief, at law or in equity, to which Plaintiffs may be justly entitled.
Respectfully submitted,
THE RIEBSCHLAGER LAW FIRM, PC
80 1 Congress, Suite 25 0
Houston, TX 77002
Telephone: (713) 980-5300
Facsimile (713) 583-5915
Email: gary@riebschlagerlaw.com
/s/Garv M. Riebschlager
GARY M. RIEBSCHLAGER
Texas Bar No. 16902200
TATE MOERER & KING, LLP
RICHARD L. TATE
State Bar No. 19664460
Email: rltate@tate-law.com
KRISTIN REIS
State Bar No. 24060478
Email: kreis@tate-law.com
206 South 2nd Street
Richmond, Texas 77469
Telephone: 281-341-0077
Facsimile: 28 I -341-1003
ATTORNEYS FOR PLAINTIFFS
DONNIE COLLIER AND JENNIFER COLLIER
DALE A. NIEMEYER AND WENDY NIEMEYER
10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has been
served in accordance with Rule 21a of the Texas Rules of Civil Procedure on the 5th day of August,
2015, upon all of counsel of record as indicated below:
Via Facsimile #(713) 222-0101
Mr. Phillip D. Sharp
Martin, Disiere, Jefferson & Wisdom LLP
808 Travis, 20th Floor
Houston, TX 77002
Email: sharp@mdjwlaw.com
Via Facsimile #(913) 661-9863
Lee M. Smithyman
Smithyman & Zakoura, Chartered
750 Commerce Plaza ll
7400 West llQth Street
Overland Park, KS 66210·2362
Email: lee@smizak-law.com
Is/Gary M Riebschlager
GARY M. RIEBSCHLAGER
11
Table nfContems
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
{Marlc One)
21 QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the quarterly period ended September 30,2014
OR
D TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the transition period from to
Commission file number: 001-33492
CVR ENERGY, INC.
(£.tact 11amt: ofrcgutmnt as sptcijied ;, its cl1at1cr)
Delaware XX-XXXXXXX
(State or otherjurisdiction of (I.R.S. Employer
incorporation Ol' organization) Identification No.)
1.1.71 Plaza Drive, Suite 500
Sugar Land, Texas 77479
(Address ofprincipal e.tecutive offices) (Zip Code)
(181) 7.07-31.00
(Registra11t :S telephone number. im:ludlng area code)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or I S(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes Ia No C
Indicate by check mark whether the registrant bas submitted electronically and posted on its corporote Web site, ifany, every Interactive Data file required
to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 n1ontbs (or for such shorter period that
the registrant was required to submit and post such files).'Yes ~ No C
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of"largc accelerated filer," ••accelerated filer" and "smaller reporting company" in Rule 12b·2 of the Exchange Aet.
Large accelerated tiler It! Accelerated filer [J Non-accelerated filer [J Smaller reporting company [J
(Do not check if smaUcr reponing
comp~any.)
Indicate by check mark whether the registrant is n shell company (as defined by Rule 12b-2 of the Exchange Act). Yes [J No It!
There were 86,831,050 shares ofthc registrant's common stock outstanding at Octobcr28, 2014.
~------------------------------------------
EXHIBIT
I A
Pl
Table of Content~
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(Mark One)
1ti QUARTERLY REPORT PURSUANT TO SECTION 13 OR IS(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the quarterly period ended September 30, 1014
OR
D TRANSITION REPORT PURSUANT TO SECTION 13 OR IS(d) OF THE SECURITIES EXCHANGE ACT
OF1934
For the traosldon period from to
Commission file number: 001-35781
CVR Refining, LP
(Exact name ofrtgislmnt as specified In Its chnrttr)
Delaware XX-XXXXXXX
(State or other jurisdlctioll of (I.R.S. Employer
Incorporation or orga11ization) Jde~rtiflcation No.)
2277 Plaza Drive, Suite 500
Sugar Land, Teus 77479
(Address ofprincipal executive office.t) a;pcode)
(181) 207-3100
(Registra11t s telephone 11umber, includi11g area code)
Indicate by check mark whether the registrant (1) has fiJed all reports required to be filed by Section 13 or 1S(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the reglstrallt was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes liJ No 0
Indicate by check llllUk. whether the registrant ha.<~ submitted electronically and posted on its corporate Web site, if any, evezy Interactive Data File required
to be submitted and posted pursuant to Rule 405 of Regulation S·T (§232.405 ofthis chapter) during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such files). Yes~ No 0
Indicate by check mark whether the registrant is a large accelerated filer. an accelerated filer, a non-accelerated 6ler, or a smaJJer reporting company. See
the definitions of''large accelerated filer," "accelerated flier'' and "smaller reporting company'' in Rule 12b·2 of the Exchange Act.
Large accelerated filer 0 Accelerated filerCI Non-accelerated fiterli!l Smaller reporting company Cl
(Do not check lr smaller reporting
company.)
Indicate by check mark whether the registrant is a shell company (as defined by Rule 12b-2 of the Exchange Act). Yes C1 No~
There were 147,600,000 common units outstanding at October 28, 20 J4.
P2
Page 1 of 1
Investor Relations
CVI $39.58
Headquartered in Sugar Land, Texas, CVR Energy Is a
diversified holding company primarily engaged in the
petroleum refining and nitrogen fertilizer manufacturing
CVR Energy, Inc. (NYSE: CVI)
industries through its holdings in two llmlled
reports 2015 second quarter
partnerships, CVR Refining, LP and CVR Partners, LP.
results and announces a cash
The CVR Energy portfolio of companies employs more dividend of 50 cents. Please click
than 1,300 employees and generated approximately here for more information.
$9.1 billion In net sales in 2014.
For more information on CVR Refining and CVR
Partners, please visit www.CVRRefining.com and
www.CVRPartners.com.
I I
~ I About CVR Energy !Investor Relations Community Involvement News Room Careers I
1 I I I
Cont_~cl UsiCVR Rennlng. LP CVR Partners. LP Privacy Policy Legal Notice Purchase Order Terms and Conditions
Copyright ~ 2015 CVR Energy, Inc. All rights reserved.
EXHIBIT
http://cvrenergy.com/
J e)
P1
Page 1 of 1
Investor Relations
CVt $39.58
- - -
About CVR Er. . cv~ ~enning, LP _ _
~~~--~CVR~efin;n~~
CVR Partners,LP d CVR Refining, LP
~·
Headquartered in Sugar Land, Texas, CVR
Community Involvement;.· Refining, LP is an independent downstream
energy limited partnership formed by CVR
lnvesta' Relntions Energy, Inc., to own, operate and grow its
Ue.·1s Room ~ ~ refining and related logistics businesses.
Careers~ CVR Refining's petroleum business Includes a
complex full coking, medium-sour crude all
Contact Us~ refinery with a rated capacity of 115,000 barrels
per calendar day operated by Coffeyville
HomeD Resources Refining & Marketing In Coffeyville,
Kansas, and a complex crude oil refinery with a
rated capacity of 70,000 barrels per calendar day
operated by Wynnewood Refining Company in
Wynnewood, Oklahoma. CVR Refining's subsidiaries also operate approximately 336 miles of active
owned and leased pipelines, approximately 150 crude oil transports, a network of strategically located
crude oil gathering tank farms, and more than six million barrels of owned and leased crude on
storage capacity. Please click here to read more about CVR Refining's petroleum businesses
CVR Refining, LP is traded on the New York Slack Exchange under the ticker symbol 'CVRR." CVR
Energy subsidiaries serve as the general partner of CVR Refining and own the majority of Ihe
common units representing limited partner Interests of CVR Refining.
To learn more about CVR Refining, please visit www.CVRRefining.com.
____________,_, ····-~ · '"""
· ~.-~~~-~~----=-----------
Home I About CVR Energy I Investor Relfltions 1 Community Involvement I News Room 1 Careers
Contact Us I CVR Refining. LP I CVR Partners, LP 1Privacy Policy I Legal Notice I Purchase Order Terms and Conditions
Copyright© 2015 CVR Energy, Inc. All rights reserved.
http://cvrenergy.com/CVRRefininglindex.html 8/4/2015
P2
... 00022249880 Filing Number: 801761114
TX2014
Ver. 5.0
05-102
(Rcv.9-1 3/32)
• Tcode 13196
Texas Franchise Tax Pu'olic Information Report
To be filed by Corporations ,!Limited Liability Companies (LLC! and Financial Institutions
Tnfs report MUST be signed and filed to satlsfyfranchfsetax requirements
'n: catirm)
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2iJ Smidl)'llWI &: Zakoum :!1 ~ Sc:auitics&lld ~ Omrlsslon. 74
7SO CciJUJlC!tC Plaza II .Am:at:fm.'llt No, 410 FORM S-4. ~lioa
71 7400 West IJOth Slnlet 20' Scalcm:l1 uacfct dllt Securities Act 0
0\-cdml M. Kansas 66210.2362 1933. CVIt Rdinftv. UC. CX!ft'cyvillc
2:: ~ll-661 -9800 2J Finan;)e lllc:..Caslssm). CYR ~
lt:e@smlzak.com LP.(as Pan:nt Guamnfcr)
23 24
2< 4 Services A~ dated 12·31·12 so
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Page 3 Page 5
.. APPEARANCES 1 PROCEEDINGS
2 2 THE REPORTER: We are on the record at
3 ALSO PRESENT: 3 10:03 a.m.. December lOth. 2014, in the l.ecAnna Mann vs.
4 Mr. Edmund Gross 4 CVR Energy, ct at
5 Ms. Penny L Pabitzky, RPR 5 This is the deposilion of Jay Finks.
California CSR 13235 ·Expires 07/31/15 6 Stipulations. please?
6 Texas CSR S040 .. Expires 12/31115
Texas Firm Registration No.: 633 7 MR. RIEBSOILAGER: By the Texas Rules of
7 Magna Legal Services 8 Civz1 Procedure.
215-207-9460 9 MR. SMlniYMAN: That's where its
8 10 appropriate.
9 11 (Witness swam.)
10 12 JAYM. FINKS,
11 13 having been.fi:rst duly sworn, testified as follows:
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EXAMINATION
BY MR. RJEBSCHLAGER:
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15 16 Q. Oood moming, sir. Can you tell the Court and
16 17 jwy your name. please?
17 18 A. Jay finks.
18 19 Q. And where do yoU reside. sir?
19 20 A. Kansas City.
20 21 Q. For whom do you wolk'l
21 22 A. CVREnergy.
22
23 Q. Energy?
23
24
25
24
25
A. Yes.
Q. How long have you worked for CVREnergy?
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2 (Pages 2 to 5) MAGNA8 LEGAL SERVICES
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Fagc 6 Page 8
- A. Approximately six years. 1 A. Tha1's cnrrc:cl.
2 Q. Do you recall the yenr that you staned \\ith 2 Q. And the publicly-held companies arc CVR Energy.
·' thl!m? ; correct'!
4 1\. Yes. 2008. March. A. '\'\.-:;.
5 Q. Are you working pursuant to on employment
"!" Q. CVR Punn~l's. LP'?
E- agn•cment? I
t
0 :\. Com:cl.
i A. No. I 7 Q. And CV R Refining. LP. correct'!
e Q. Are you an officer or •• are you an officer of I e A. Correct.
9 CVREnergy? 9 Q. Now. underneath each one of tho~e entities.
10 A. No. lO there are vorious companies. correct?
11 Q. Are you a director ofCVR Energy? 11 A. Yes.
12 A. Director as in director of investor relations. 12 Q. Do you hondle the cash for each one of the
13 Q. Okay. Do you sit on the board of directotS of 13 wholly-owned or owned subsidiaries for each one of the
14 CVREnergy? 14 public entities just named?
15 A No. 15 A. Yes.
16 Q. All right. What tilles ·-job titles do you 16 Q. On the refining side, which would be- I'm
17 hold at CVR Energy? 17 talking about refining ·- CVR Refining, LP. Docs your
18 A. Director of investor relations. 18 department handle all cash transactions for CVR
19 Q. Wl18t are your job duties as director of investor 19 Refining, LP?
20 relations? 20 A. We manage the bank accounts pertaining to those
21 A I manage the treasury and credit departments as 21 entities.
22 well as the investor relations pertaining to the CVR 22 Q. Do you manage the bank accounts for its general
23 Refining entity as well as CVR Energy. 23 partner. CVR •• CVR Ref'ming Holdings?
24 Q. Do you have a stair? 24 A. Yes.
25 A. Yes, 25 Q. So, that would actually be the owner of the GP.
Page 7 Page 9
1 Q. How many? 1 The CVR Refining, GP, is the general partner for
2 A. Nine. 2 Refining. LP. correct?
3 Q. Jn tenns of investor relations, does your staff 3 A. Correct
4 handle queries from investors, stock investors in the 4 Q. Do you - do you handle the bank accounts for
5 Refining entities andlor CVR Energy? 5 CVR Refining, GP?
6 A. Yes. J do. 6 A. Wedo.
7 Q. Does it monitor stock prices. et cetera? 7 Q. Do you-- do you handle the bank accounts for
8 A. Yes. 8 its owner, CVR Refining Holdings?
9 Q. What other specific job duties do you do on a 9 A. Yes.
10 day-to-day basis? 10 Q. Do you handle the bank accounts for CVR
11 A. Within - I'll speak. to the treasury department 11 Refining, ILC?
12 specifically. In the treasury department, we manago 12 A. Yes.
13 cash amongst all entities· across - the three public 13 Q. Do you handle all the bank accounts for
14 entities: CVR Energy. CVR Refining, and CVR Partners. 14 Wynnewood Energy Company, LLC?
15 On the credit side, we - we look at the 15 A Yes.
16 creditworthiness of all of our customers to which we do 16 Q. Do you handle all 1he bank accounts for
17 sales, both on the refining and on the fertilizer 17 Wynnewood Refining Company?
18 businesses. 18 A. Yes.
19 In addition. at the tn:asury, we- we 19 Q. Do you handle all the bank accounts for
20 manage and administer the credit facilities for all of 20 Coffeyville Refining & Madceting. LLC?
21 our public companies. 21 A. Yes.
\( 22 Q. All right So. y~ handle all cash? 22 Q. Do you handle aU the bank accounts for crude
23 A. Ub·huh. 23 and transportation and so-and-so, LLC?
\i \I 24 Q. For all of the entities pertaining to each of 24 A. Correct.
.\ 25 the publicly heJd companies? 25 (Marked Exhibit Nos. 11hrougb 4.)
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MAGNA8 LeGAL SERVICES
3 (Pages 6 to 9)
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?ege lO Page 12
Q. (BY MR. RIEDSCHLAGER) All right. I'll hund you l the record. then, the -- the wholly-owned subsidiaries
what's marked as &hihit No. 1. 2 of both Refining and Panners a~ listed on Exhibil
A. Yes. ~o. I'!
Q. II appear~ h • ~ d list uf sub...,idi11rk·s th:.! I
obtained us un c:. up tt' it. Coff~y\'illc.• Refining and -· and Coffey' illt:
.'\. Uh-huh. Crudl· --
5 Q. Is ll1al a "yes"'! A. Yt:S.
A v~. .., Q. •• would he hooked up tCI it'!
i Q. Okay. You have to give me a·- A. Yes.
8 A. Yes. u Q. And Crude Transportation would be hooked up to
9 Q. - either a "yes" or "no" for the court reporter it, and other companies on that list would be hoes ic go lo CVR Energy for appro\'al'!
20 year in •• ill possession of CVR Refining. LP. l. o A. I - f•n not sure.
i1 A. Yes. ~l Q. Who would know?
2~ Q. How ifs •• how it's created and how il does its '2 A. l'he- the formal process'!
23 business. you're nol precisely sure of all those 23 Q. lnl·huh.
24 details? 24 A. Ms. Boll.
25 A. Correct. 25 Q. Okay. Is Ms. Ball a part of the approval
Page 27 Page 29
1 Q. All right. I can live with lhaL 1 process of the capital plan and/or budget for CVR
2 Mr. Fink. are you familial- familiar with 2 Refining, LP?
3 the approval process of capital plans ancilor budgets by 3 A. When you say "the final approval," 1- she's
4 CVR. Refining, LP? ~ part of the senior management team lbat would then
5 A. In - in general, yes. 5 review it.
6 Q. Can you ten sne what your general knowledge is, 6 Q. Okay. Because she's the chief financial
7 lhen, of the approval of capital plaus and budgets by 7 officer?
8 CVR Refining, LP? 8 A. That's correct.
g A. They are Jftp8l'ed annually. They are thcra 9 Q. And because she is also treasurer of the
10
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presented to senior management, then presented to the
oomn
Q. Okay. Wba you say "seaformanagement" for CVR 12
10
11
company, she's also- ofCVR Refining, LP; CVR Energy;
and a bunch of other companies, she's considered to be
part of the senior management, ccnrect?
.I
13 Refining. LP, to whom are you referring? 13 A. Yes.
H A. The executive management team ofCVR Refining. 1~ Q. So, she would have personal knowledge of the
~· 15 Q. And whom would that be? 15 approval process of a capical plan and the budgets?
~~
16 A. That would be -1 don't have -1 don't have 16 A Yes.
17 the officers memorized. 17 Q. She would. likewise, have personal knowledge of
18 Q. Okay. But it would be presented to the ofticetS 18 the next level ofapprovals by CVR Energy. I'm assuming,
19 of Refining or the officers ofthe OP? Which one or 19 ofthe- ofthe capital plau and budgets for the same
20 both? 20 reasons because she's chieffmancial officer ofCVR
21 A. It would be·· wilhout seeing a comparative 21 Energy and treasurer ofCVR Energy. .I
22 list. J wouldn't be able to answer that specific:a11y. 22 Would you agree with that?
23 Q. Okay. And theo once the seniormanagemen1 23 A. Yes. She's the CFO ofCVR Energy and treasurer.
24 approves the budget, the capital plan ofCVR Refming, 24 Q. Do you have any knowledge regantiog what makes
25 LP, is submitted to the board ofdirc:dOJ"S of whom? 25 up the budget for- what items make up the budget
8 (Pages 26 to 29) MAGNA8 LEGAL SERVICES
pg
Pr!oe 30
foz -· thr annu&l bud!!cr "'~ CVR Rdin!n~?
A. Wh:st specific itc:n,~
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2
gu through soml· of that in a minute.
You said you "assisted.'' \Vho did you
0. \\'IIlii dtlC!' •• wltm d:'.:l' CVR Hctining. I P. an,·mpl ! 3~Si~t'!
'••rlai:_'l"! ~- ••• ·1\ ~C',·:·- 11,1 ... ::' ... a;.·;.·~.\~ .. ~ \.:.•l·:~::\· .. t~ 111\· t H ·,.
;,~: J ••ll''-'''. hj •• ~•. ; .. :;•.::n.... i c.;-..L·,;.··•·· Q. ~U:'illi B•dl.
A Tlw h:td~eT i~ rlw t~nt'•mi'l~ ~!:m fr. .. th, •• rc'r :\ ~0.
the 1\~XI ~ l.";l.T. iI Q. Mr. Morgnn'!
Q. It wnuld. 1 a~sunw. include ullc.1cation ,,,. Cll!'l~ I b A. Yes.
uffccdslock. for inslanrt'·~ In other words. C("ISI of Q. Was Susan Ball not involved in the- acquisition
10 materials. cost of personnel: cost of leases; cost of·· ' 10
9 of Wynnewood Refinery?
11 A. The budget •• 11 A. I can't speak on her behalf.
12 Q. -- the cost of operation. ll would include 12 Q. Oh, okay. But you were working with
13 costs and then it would include capital expenditures and 13 Morgan and-
14 then it also would include anticipated profits. 14 A Yes.
15 ct cetera. 15 Q. •• and pardon me. J have forgotten his first
16 Am I roughly COJTect? 16 name.
17 A. The budget would include an operating plan which 1 7 A. Edward.
lE would include your opemting rates for the year. It lB Q. Was he Ute chieffinandaJ officer at the time?
19 would include an estimated cost of cn1dc, cosr t"f 19 A. Yes.
20 products sold, labor costs, and then would include )•our 20 Q. And Ms. Ball was an accounting officer, ifl
2: anticipated earnings for the year. 21 recall-
22 Q. Docs it include such items as maintenance, 22 A. Yes.
23 safety, and upkeep of the refineries? 23 Q. .... is that co~tect?
24 A. Y~. The capital plan would include that. 24 Is Mr. Morgan still with CVR Energy?
25 Q. You said the capital plan would include 25 A. No.
Page 31 Page 33
1 maintenance, safety, and upkeep of the refinery? l Q. When did he leave?
2 A Olpital expenditures, yes. 2 Well, let me ask a better question.
3 Q. Do you have anypersonallmowledge of the 3 Is Mr. Morgan employed by any entity in the
4 acquisition of the Wynnewood Refinery in 2011? 4 CVRsystem?
5 A Define umowledge." I know of- s A. No.
6 Q. Were you- were you involved in the process of 6 Q. Can you tell me why?
7 the acquisition of the Wynnewood RefineJy? 7 A. He- no. He's not here.
a A Not in the detailed due diligence. 8 Q. Okay. Wellt did he- did he n:sign or ctid he
9 Q. All right. Were you involved in the financing 9 quit or he just walk offthcjob or-
10 of1he- of the Wynnewood RcfiDe!y? 10 A. He loft to pursue other opportunities.
11 A I assisted. yes. 11 Q. Okay. Fine. That's aU I need to know.
12 Q. In what &sbion dicJ you assist in the financing 12 So. be's no longer employed with CVR EDergy1
13 ofthe W)'Dilewood project? 13 A. No,sir.
14 A Through the ABL at tho time. 14 Q. Okay. Thank you very .much.
15 Q. Are you talking about the 150 milliou.ABL? 15 Do you know when he taigned or left the
16 It's - it's 150 million, rigbt'l 16 fiml?
17 A. Well, we- we increased it at the time of 17 A. 1cannot recall a specific date, but it was the
18 the- 18 end·· he- he leftinJuneof'12, I believe.
19 Q. Purchase? 19 Q. To your knowledgt\ did he IeavelUldrr amicable
20 A -at the purchase. 20 terms?
21 Q. Okay. That was through Wells Fargo? 21 A. I'm not aWBI1: of any oftbal.
22 A No. 22 Q. AU righL Did Mr. Morgan wmk on 1he Wynnewood
23 Q. Who was it? 23 project during the entire acquisition period?
24 A At the time, it was through Deutsche Bank. 24 A. Va.
25 Q. Oh, that's right. Deutsche Bank. Okay. We'll 25 Q. By·- by "acquisition period.tl what •• what do
MAGNAe LEGAL SERVICES
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Paqe 98
1 lee@smizak.com
2 1further certify that I am neither counsel
3 for, related to, nor employed by any of the parties or
4 attorneys ln the action in which this proceeding was
5 taken. and further that I am not financially or
6 otherwise interested in the outcome of the action.
7 Further certification requirements pursuant
8 to Rule 203 of TRCP will be certified to after they have
9 occurred.
10 Certified to by me this 23RD day of
11 DECEMBER. 2014.
12
P~.RPa
13
14
15
California CSR 13235 - Expires 0713 II IS
16 Texas CSR 5040- Expires 12131115
Texas Finn Registration No.: 633
17 Magna Legal Services
1635 Market Street
18 Eighth Floor
Philadelphia, Pennsylvania 19 I03
19 215-207-9460
20
21
22
23
24.
25
Page 99
1 FURTHER CERTIFICATlON UNDER RULE 203 TRCP
2
3 The original deposition was/was not returned
4 to the deposition officer on ;
5 IfMun1ed,lhe attached Changes and
6 Signature page contains any changes and the reasons
7 therefor:
8 If retumcd. the original deposition was
9 delivered to MR. GARY RlEBSCfU..AGER. TBA NO. 16902200,
10 Custodial Attontey:
11 Thal S is the deposition officer's
12 clwges to the Plaintiff for preparing the original
13 deposition transcript and any copies of exhibits:
14 That the deposition was delivered irt
15 accordance with Rule 203.3, and tbata copy of this
16 certificate was served on all parties shown herein on
11 and fded with the Clerk.
L8 Certified to by me this day of
19 .2014.
20
21 PENNY L PABITZKY. RPR
California CSR 13235- Expires07/3l/l.5
22 Texas CSR S040- Expires 12/31/lS
Texas Finn Regis1ration No.: 633
23 Magna Legal Services
163.5 Market Street
24 Eighlb Floor
Philadel~ Pennsylvania 19103
25 215-207-9460
26 (Pages 98 to 99) MAGNA8 LEGAL SERVICES
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Tab 10
CAUSE NO. 15-DCV-220330
DONALD R. COLLIER, JENNIFER J. § IN THE DISTRICT COURT
COLLIER, DALE A. NIEMEYER, and §
WENDY NIEMEYER, §
§
Plaintiffs, §
§ FORT BEND COUNTY, TEXAS
vs. §
§
CVR ENERGY, INC. and §
CVR REFINING, LP, §
§
Defendants. § 268th JUDICIAL DISTRICT
PLAINTIFFS' SUPPLEMENTAL PETITION
Comes now Plaintiffs Donald R. Collier, Jennifer J. Collier, Dale A. Niemeyer and Wendy
Niemeyer in the above-entitled and numbered cause and files this their Supplemental Petition.
1. In addition to the allegations previously pled, Plaintiffs allege that Defendants were
independently negligent in the performance of their duties under the Management Services
Agreement proximatley causing Plaintiffs damages and injuries as previously pled.
Respectfully submitted,
The Riebschlager Law Firm, PC
By: IS/Richard L. Tate
GARY M. RIEBSCHLAGER
State Bar No. 16902200
Email: gary@riebschlagerlaw.com
801 Congress, Suite 250
Houston, TX 77002
Telephone: 281-904-1404
TATE MOERER & KING, LLP
Richard L. Tate
State Bar No. 19664460
Email: rltate@tate-law.com
206 South Second Street
Richmond, Texas 77469
Telephone: (281) 341-0077
Facsimile: (281) 341-1003
ATTORNEYS FOR PLAINTIFFS
DONALD COLLIER, JENNIFER COLLIER,
DALE A. NIEMEYER AND WENDY
NIEMEYER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has
been served in accordance with Rule 21 a of the Texas Rules of Civil Procedure on the 7th day
of August, 2015, upon all counsel of record as indicated below:
Mr. Phillip D. Sharp
Martin, Disiere, Jefferson & Wisdom, LLP
808 Travis, 20th Floor
Houston, TX 77002
Facsimile# 713-222-0101
Email: sharp@mdjwlaw.com
Lee M. Smithyman
Smithyman & Zakoura, Chartered
750 Commerce Plaza IT
7400 West 110th Street
Overland Park, KS 66210-2362
Email: lee@smizak-Iaw.com
IS/ Richard L. Tate
Richard L. Tate
Tab 11
SERVICES AGREEMENT
This Services Agreement (this "Agreement') is entered into as of the 31st day of
December, 2012, by and among CVR Refining, LP, a Delaware limited partnership ("MLP'),
CVR Refining GP, LLC, a Delaware limited liability company ("GP'), and CVR Energy, Inc., a
Delaware corporation ("CVR", and collectively with MLP and GP, the "Parties" and each, a
"Party").
RECITALS
MLP is the owner, directly or indirectly, of CVR Refining, LLC, Wynnewood Energy
Company, LLC, Wynnewood Refining Company, LLC, Coffeyville Resources Refining &
Marketing, LLC, Coffeyville Resources Crude Transportation, LLC, Coffeyville Resources
Terminal, LLC and Coffeyville Resources Pipeline, LLC (collectively, the "Refining Subs").
CVR is an indirect owner of Coffeyville Resources Nitrogen Fertilizers, LLC, a Delaware
limited liability company ("Fertilizer''). GP, in its capacity as the general partner of MLP,
desires to engage CVR, on its own behalf and for the benefit of the Refining Subs and MLP, to
provide certain services necessary to operate the business conducted by the Refining Subs, MLP
and GP (the "Services Recipients''), and CVR is willing to undertake such engagement, subject
to the terms and conditions of this Agreement.
MLP, GP (for itself and in its capacity as the general partner ofMLP), and CVR agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.0 I Terms. The following defined terms will have the meanings given below:
"Administrative Personnef' means individuals who are employed by CVR or any of its
Affiliates and assist in providing, as part of the Services, any of the administrative services
referred to in Exhibit I hereto.
"Affiliate" shall mean with respect to any Person, any other Person that directly or
indirectly through one or more intermediaries, controls, is controlled by, or is under common
control with, such specified Person. For purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of such Person,
directly or indirectly, through the ownership of voting securities, by contract or otherwise
(provided that, solely for purposes of this Agreement, the Services Recipients shall not be
deemed Affiliates of CVR).
"Bankrupt' with respect to any Person shall mean such Person shall generally be unable
to pay its debts as such debts become due, or shall so admit in writing or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted by or against such
Person seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
CVR-12538
entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it
or for any substantial part of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), shall remain undismissed or unstayed for a period of 30 days;
or such Person shall take any action to authorize any of the actions set forth above.
"CVR Representative" means such person as is designated in writing by CVR to serve in
such capacity.
"Default Rate" shall mean an interest rate (which shall in no event be higher than the rate
permitted by applicable law) equal to 300 basis points over LIBOR.
"Fertilizer'' has the meaning set forth in the Recitals hereinabove.
"Governmental Approvaf' shall mean any material consent, authorization, certificate,
permit, right of way grant or approval of any Governmental Authority that is necessary for the
construction, ownership and operation of the assets used in the business of the Services
Recipients in accordance with applicable Laws.
"Governmental Authority" shall mean any court or tribunal in any jurisdiction or any
federal, state, tribal, municipal or local government or other governmental body, agency,
authority, department, commission, board, bureau, instrumentality, arbitrator or arbitral body or
any quasi-governmental or private body lawfully exercising any regulatory or taxing authority.
"GP/MLP Representative" means such person as is designated in writing by GP to serve
in such capacity.
"Initial Offering' means the initial public offering of common units representing limited
partner interests in MLP.
"Laws" shall mean any applicable statute, environmental law, common law, rule,
regulation, judgment, order, ordinance, writ, injunction or decree issued or promulgated by any
Governmental Authority.
"Party" and "Parties" means the parties to this Agreement.
"Person" means an individual, corporation, partnership, joint venture, trust, limited
liability company, unincorporated organization or other entity.
"Personnel Costs'' means all compensation costs incurred by an employer in connection
with the employment by such employer of applicable personnel, including all payroll and
benefits but excluding any (i) Share-Based Compensation and (ii) severance costs (other than for
Seconded Personnel).
"Refining Payroll Percentage" means, for any applicable period, the percentage
represented by a fraction, the numerator of which is the total payroll amount of the Refining
Subs for such period, and the denominator of which is the total payroll amount of the Refining
Subs plus the total payroll amount of Fertilizer for such period, as such payroll amounts are
calculated on a consistent basis for purposes of determining the Refining Payroll Percentage.
2
CVR-12539
"Refining Subs" has the meaning set forth in the Recitals hereinabove.
"Seconded Personnef' means individuals, other than Administrative Personnel, who are
employed by CVR or any of its Affiliates and provided on a full-time basis to the Services
Recipients in connection with provision of the Services.
"Services" shall consist of those services performed for the Services Recipients as
described on Exhibit 1 hereto.
"Services Recipients" has the meaning set forth in the Recitals hereinabove.
"Share-Based Compensation" means any compensation accruing or payable under any
incentive or other compensation plan or program of an employer based upon changes in the
equity value of such employer or any of its Affiliates (but excluding MLP and its subsidiaries).
"Shared Personnef' means individuals, other than Administrative Personnel, who are
employed by CVR or any of its Affiliates and provided on a part-time basis to the Services
Recipients in connection with provision of the Services.
ARTICLE II
RETENTION OF CVR; SCOPE OF SERVICES
Section 2.0 1 Retention of CVR. GP, on its own behalf and for the benefit of the
Services Recipients, hereby engages CVR to perform the Services and CVR hereby accepts such
engagement and agrees to perform the Services and to provide all Administrative Personnel,
Seconded Personnel, and Shared Personnel necessary to perform the Services.
Section 2.02 Scope of Services. The Services shall be provided in accordance with (i)
applicable material Governmental Approvals and Laws, (ii) applicable industry standards and
(iii) quality standards that, taken as a whole, are not materially less favorable to the Services
Recipients compared to those provided to the Services Recipients as of the date of this
Agreement.
Section 2.03 Exclusion of Services. At any time, GP or CVR may temporarily or
permanently exclude any particular service from the scope of the Services upon 180 days' notice.
Section 2.04 Performance of Services by Affiliates or Other Persons. The Parties
hereby agree that in discharging its obligations hereunder, CVR may engage any of its Affiliates
or other Persons to perform the Services (or any part of the Services) on its behalf and that the
performance of the Services (or any part of the Services) by any such Affiliate or Person shall be
treated as if CVR performed such Services itself. No such delegation by CVR to Affiliates or
other Persons shall relieve CVR of its obligations hereunder.
3
CVR-12540
ARTICLE III
PAYMENT AMOUNT
Section 3.01 Payment Amount. GP shall pay or cause MLP or the Refining Subs to
pay, to CVR (or its Affiliates as CVR may direct) the amount of any direct or indirect expenses
incurred by CVR or its Affiliates in connection with the provision of Services by CVR or its
Affiliates (the "Payment Amount'), in accordance with the following:
(a) Seconded Personnel. The Payment Amount will include all Personnel Costs of
Seconded Personnel, to the extent attributable to the periods during which such Seconded
Personnel are provided to the Services Recipients.
(b) Shared Personnel and Administrative Personnel. The Payment Amount will
include a pro rata share of all Personnel Costs of Shared Personnel and Administrative Personnel
(including government and public relations), as determined by CVR on a commercially
reasonable basis, based on the percent of total working time that such respective personnel are
engaged in performing any of the Services.
(c) Administrative Costs. The Payment Amount will include following:
(i) Office Costs. A pro rata share of all office costs (including, without
limitation, all costs relating to office leases, equipment leases, supplies, property taxes
and utilities) for all locations of Administrative Personnel, as determined by CVR on a
commercially reasonable basis, based on the Refining Payroll Percentage;
(ii) Insurance. Insurance premiums will be direct charged to the applicable
insured to the extent possible, and otherwise will be allocated on a commercially
reasonable basis as mutually agreed upon by the Parties;
(iii) Outside Services. Services provided by outside vendors (including audit
services, legal services, government and public relation services, and other services) will
first be direct charged where applicable; provided, however that the Payment Amount
will include a pro rata share of charges for all services that are provided by outside
vendors and not direct charged, as determined by CVR on a commercially reasonable
basis, based upon the following percentages of such charges: legal services - 65%; and
all other services - Refining Payroll Percentage;
(iv) Other SGA Costs. A pro rata share of all other sales, general and
administrative costs relating to the Services Recipients, as determined by CVR on a
commercially reasonable basis, based on the Refining Payroll Percentage; and
(v) Depreciation and Amortization. A pro rata share of depreciation and
amortization relating to all locations of Administrative Personnel, as determined by CVR
on a commercially reasonable basis, based on the Refining Payroll Percentage, following
recognition of such depreciation or amortization as an expense on the books and records
of CVR or its Affiliates.
4
CVR-12541
(d) Other Costs. Bank charges, interest expense and any other costs as reasonably
incurred by CVR or its Affiliates in the provision of Services will be direct charged as
applicable. For the avoidance of doubt, any of the foregoing costs and expenses described in
Section 3.01 that are direct charged to any Party will not be included in the Payment Amount.
Section 3.02 Payment of Payment Amount. CVR shall submit monthly invoices to GP
for the Services, which invoices shall be due and payable net 15 days. GP shall pay or cause
MLP or the Refining Subs to pay, to CVR in immediately available funds, the full Payment
Amount due under Section 3.01. Past due amounts shall bear interest at the Default Rate.
Allocation percentages referred to in this Article III will be calculated and determined for
calendar year or calendar quarter periods, as CVR may determine, based upon CVR's annual
audited financials, or quarterly unaudited financials, for the immediately preceding calendar year
or calendar quarter, as applicable.
Section 3.03 Disputed Charges. GP MAY, WITHIN 90 DAYS AFTER RECEIPT OF
A CHARGE FROM CVR, TAKE WRITIEN EXCEPTION TO SUCH CHARGE, ON THE
GROUND THAT THE SAME WAS NOT A REASONABLE COST INCURRED BY CVR OR
ITS AFFILIATES IN CONNECTION WITH THE SERVICES. GP SHALL NEVERTHELESS
PAY OR CAUSE MLP OR THE REFINING SUBS TO PAY IN FULL WHEN DUE THE
FULL PAYMENT AMOUNT OWED TO CVR. SUCH PAYMENT SHALL NOT BE
DEEMED A WAIVER OF THE RIGHT OF THE SERVICES RECIPIENT TO RECOUP ANY
CONTESTED PORTION OF ANY AMOUNT SO PAID. HOWEVER, IF THE AMOUNT AS
TO WHICH SUCH WRITTEN EXCEPTION IS TAKEN, OR ANY PART THEREOF, IS
ULTIMATELY DETERMINED NOT TO BE A REASONABLE COST INCURRED BY CVR
OR ITS AFFILIATES IN CONNECTION WITH ITS PROVIDING THE SERVICES
HEREUNDER, SUCH AMOUNT OR PORTION THEREOF (AS THE CASE MAY BE)
SHALL BE REFUNDED BY CVR TO THE SERVICES RECIPIENTS TOGETHER WITH
INTEREST THEREON AT THE DEFAULT RATE DURING THE PERIOD FROM THE
DATE OF PAYMENT BY THE SERVICES RECIPIENTS TO THE DATE OF REFUND BY
CVR.
Section 3.04 CVR's Employees. The Services Recipients shall not be obligated to pay
directly to Seconded Personnel or Shared Personnel any compensation, salaries, wages, bonuses,
benefits, social security taxes, workers' compensation insurance, retirement and insurance
benefits, training or other expenses; provided, however, that if CVR fails to pay any employee
within 30 days of the date such employee's payment is due:
(a) The Services Recipients may (i) pay such employee directly, (ii) employ such
employee directly, or (iii) notify CVR that this Agreement is terminated and employ such
employees directly; and
(b) CVR shall reimburse GP, MLP or the Refining Subs, as the case may be, for the
amount GP, MLP or the Refining Subs, as applicable, paid to CVR with respect to employee
services for which CVR did not pay any such employee.
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ARTICLE IV
BOOKS, RECORDS AND REPORTING
Section 4.01 Books and Records. CVR and its Affiliates and the Services Recipients
shall each maintain accurate books and records regarding the performance of the Services and
calculation of the Payment Amount, and shall maintain such books and records for the period
required by applicable accounting practices or law, or five (5) years, whichever is longer.
Section 4.02 Audits. CVR and its Affiliates and the Services Recipients shall have the
right, upon reasonable notice, and at all reasonable times during usual business hours, to audit,
examine and make copies of the books and records referred to in Section 4.01. Such right may
be exercised through any agent or employee of the Person exercising such right if designated in
writing by such Person or by an independent public accountant, engineer, attorney or other agent
so designated. Each Person exercising such right shall bear all costs and expenses incurred by it
in any inspection, examination or audit. Each Party shall review and respond in a timely manner
to any claims or inquiries made by the other Party regarding matters revealed by any such
inspection, examination or audit.
Section 4.03 Reports. CVR shall prepare and deliver to GP any reports provided for in
this Agreement and such other reports as GP may reasonably request from time to time regarding
the performance of the Services.
ARTICLEV
INTELLECTUAL PROPERTY
Section 5.01 Ownership by CVR and License to MLP. Any (i) inventions, whether
patentable or not, developed or invented, or (ii) copyrightable material (and the intangible rights
of copyright therein) developed, by CVR, its Affiliates or its or their employees in connection
with the performance of the Services shall be the property ofCVR; provided, however, that CVR
hereby grants, and agrees to cause its Affiliates to grant, to MLP an irrevocable, royalty-free,
non-exclusive and non-transferable (without the prior written consent of CVR) right and license
to use such inventions or material; and further provided, however, that MLP shall only be
granted such a right and license to the extent such grant does not conflict with, or result in a
breach, default, or violation of a right or license to use such inventions or material granted to
CVR by any Person other than an Affiliate of CVR. Notwithstanding the foregoing, CVR will
and will cause its Affiliates to, use all commercially reasonable efforts to grant such right and
license to MLP.
Section 5.02 License to CVR and its Affiliates. MLP hereby grants, and will cause its
Affiliates to grant, to CVR and its Affiliates an irrevocable, royalty-free, non-exclusive and non-
transferable right and license to use, during the term of this Agreement, any intellectual property
provided by MLP or its Affiliates to CVR or its Affiliates, but only to the extent such use is
necessary for the performance of the Services. CVR agrees that CVR and its Affiliates will
utilize such intellectual property solely in connection with the performance of the Services.
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CVR-12543
ARTICLE VI
TERMINATION
Section 6.01 Termination By GP.
(a) Upon the occurrence of any of the following events, GP may terminate this
Agreement by giving written notice of such termination to CVR:
(i) CVR becomes Bankrupt; or
(ii) CVR dissolves and commences liquidation or winding-up.
Any termination under this Section 6.01 (a) shall become effective immediately upon
delivery of the notice first described in this Section 6.01(a), or such later time (not to exceed the
first anniversary ofthe delivery of such notice) as may be specified by GP.
(b) In addition to its rights under Section 6.0]{a), after the first year anniversary of
the completion of the Initial Offering, GP may terminate this Agreement at any time by giving
notice of such termination to CVR. Any termination under this Section 6.01 (b) shall become
effective 180 days after delivery of such notice, or such later time (not to exceed the first
anniversary ofthe delivery of such notice) as may be specified by GP.
Section 6.02 Termination By CVR. After the first year anniversary of the completion
of the Initial Offering, CVR may terminate this Agreement at any time by giving notice of such
termination to GP. Any termination under this Section 6.02 shall become effective 180 days
after delivery of such notice, or such later time (not to exceed the first anniversary of the delivery
of such notice) as may be specified by CVR.
Section 6.03 Effect of Termination. If this Agreement is terminated in accordance with
Section 6.01 or Section 6.02. all rights and obligations under this Agreement shall cease except
for (a) obligations that expressly survive termination of this Agreement; (b) liabilities and
obligations that have accrued prior to such termination, including the obligation to pay any
amounts that have become due and payable prior to such termination, and (c) the obligation to
pay any portion of any Payment Amount that has accrued prior to such termination, even if such
portion has not become due and payable at that time.
Section 6.04 Transition of Services. During the period of 180 days following the
delivery of any notice of termination delivered in accordance with Section 6.01(b) or 6.02, in
addition to the Services, CVR will, and will cause its Affiliates to, provide to MLP such
additional services as may be reasonably requested by the GP to assist the Services Recipients in
effecting a transition of the responsibility for providing the Services.
Section 6.05 Survival. The provisions of this Article VI and Sections 3.03, 4.01, 4.02,
5.01, 8.01, 8.02, 8.03 and Articles IX and X will survive and continue in full force and effect
notwithstanding the termination of this Agreement.
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CVR-12544
ARTICLE VII
ADDITIONAL REPRESENTATIONS AND WARRANTIES
Section 7.01 Representations and Warranties of CVR. CVR hereby represents,
warrants and covenants to the other Parties that as of the date hereof:
(a) CVR is duly organized, validly existing, and in good standing under the laws of
the State of Delaware; CVR is duly qualified and in good standing in the States required in order
to perform the Services except where failure to be so qualified or in good standing could not
reasonably be expected to have a material adverse impact on GP or MLP; and CVR has full
power and authority to execute and deliver this Agreement and to perform its obligations
hereunder
(b) CVR has duly executed and delivered this Agreement, and this Agreement
constitutes the legal, valid and binding obligation of CVR, enforceable against it in accordance
with its terms (except as may be limited by bankruptcy, insolvency or similar laws of general
application and by the effect of general principles of equity, regardless of whether considered at
law or in equity); and
(c) The authorization, execution, delivery, and performance of this Agreement by
CVR does not and will not (i) conflict with, or result in a breach, default or violation of, (A) the
amended and restated certificate of incorporation of CVR, (B) any contract or agreement to
which CVR is a party or is otherwise subject, or (C) any law, order, judgment, decree, writ,
injunction or arbitral award to which CVR is subject; or (ii) require any consent, approval or
authorization from, filing or registration with, or notice to, any governmental authority or other
Person, unless such requirement has already been satisfied, except, in the case of clauses (i)(B)
and (i)(C), for such conflicts, breaches, defaults or violations that would not have a material
adverse effect on CVR or on its ability to perform its obligations hereunder, and except, in the
case of clause (ii), for such consents, approvals, authorizations, filings, registrations or notices,
the failure of which to obtain or make would not have a material adverse effect on CVR or on
their ability to perform their obligations hereunder.
Section 7.02 Representations and Warranties of GP and MLP. Each of GP and MLP
hereby represents, warrants and covenants to the other Parties that as of the date hereof:
(a) Each of GP and MLP is duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its formation; each of GP and MLP has full power and
authority to execute and deliver this Agreement and to perform its obligations hereunder;
(b) Each of GP and MLP has duly executed and delivered this Agreement, and this
Agreement constitutes the legal, valid and binding obligation of each such Person enforceable
against it in accordance with its terms (except as may be limited by bankruptcy, insolvency or
similar laws of general application and by the effect of general principles of equity, regardless of
whether considered at law or in equity); and
(c) The authorization, execution, delivery, and performance of this Agreement by
each of GP and MLP does not and will not (i) conflict with, or result in a breach, default or
8
CVR-12545
violation of, {A) the limited liability company agreement of GP or the partnership agreement of
MLP, (B) any contract or agreement to which such Person is a party or is otherwise subject, or
(C) any law, order, judgment, decree, writ, injunction or arbitral award to which such Person is
subject; or (ii) require any consent, approval or authorization from, filing or registration with, or
notice to, any governmental authority or other Person, unless such requirement has already been
satisfied, except, in the case of clause (i)(B) and (i){C), for such conflicts, breaches, defaults or
violations that would not have a material adverse effect on GP or MLP or on their ability to
perform their obligations hereunder, and except, in the case of clause (ii), for such consents,
approvals, authorizations, filings, registrations or notices, the failure of which to obtain or make
would not have a material adverse effect on GP or MLP or on their ability to perform their
respective obligations hereunder.
ARTICLE VIII
ADDITIONAL REQUIREMENTS
Section 8.01 Indemnitv. The Services Recipients shall indemnify, reimburse, defend
and hold harmless CVR and its Affiliates and their respective successors and permitted assigns,
together with their respective employees, officers, members, managers, directors, agents and
representatives (collectively the "Indemnified Parties"), from and against all losses (including
lost profits), costs, damages, injuries, taxes, penalties, interests, expenses, obligations, claims and
liabilities Goint or severable) of any kind or nature whatsoever (collectively "Losses") that are
incurred by such Indemnified Parties in connection with, relating to or arising out of (i) the
breach of any term or condition of this Agreement, or (ii) the performance of any Services
hereunder; provided, however, that the Services Recipients shall not be obligated to indemnify,
reimburse, defend or hold harmless any Indemnified Party for any Losses Incurred, by such
Indemnified Party in connection with, relating to or arising out of:
(a) a breach by such Indemnified Party of this Agreement;
(b) the gross negligence, willful misconduct, bad faith or reckless disregard of such
Indemnified Party in the performance of any Services hereunder; or
(c) fraudulent or dishonest acts of such Indemnified Party with respect to the Services
Recipients.
The rights of any Indemnified Party referred to above shall be in addition to any rights that such
Indemnified Party shall otherwise have at law or in equity. Without the prior written consent of
the Services Recipients, no Indemnified Party shall settle, compromise or consent to the entry of
any judgment in, or otherwise seek to terminate any, claim, action, proceeding or investigation in
respect of which indemnification could be sought hereunder unless (a) such Indemnified Party
indemnifies the Services Recipients from any liabilities arising out of such claim, action,
proceeding or investigation, (b) such settlement, compromise or consent includes an
unconditional release of the Services Recipients and Indemnified Party from all liability arising
out of such claim, action, proceeding or investigation and (c) the parties involved agree that the
terms of such settlement, compromise or consent shall remain confidential. In the event that
indemnification is provided for under any other agreements between CVR or any of its Affiliates
9
CVR-12546
and any of the Services Recipients or any of their Affiliates, and such indemnification is for any
particular Losses, then such indemnification (and any limitations thereon) as provided in such
other agreement shall apply as to such particular Losses and shall supersede and be in lieu of any
indemnification that would otherwise apply to such particular Losses under this Agreement.
Section 8.02 Limitation of Duties and Liability. The relationship of CVR to the
Services Recipients pursuant to this Agreement is as an independent contractor and nothing in
this Agreement shall be construed to impose on CVR, or on any of its Affiliates, or on any of
their respective successors and permitted assigns, or on their respective employees, officers,
members, managers, directors, agents and representatives, an express or implied fiduciary duty.
CVR and its Affiliates and their respective successors and permitted assigns, together with their
respective employees, officers, members, managers, directors, agents and representatives, shall
not be liable for, and the Services Recipients shall not take, or permit to be taken, any action
against any of such Persons to hold such Persons liable for, (a) any error of judgment or mistake
of law or for any liability or loss suffered by the Services Recipients in connection with the
performance of any Services under this Agreement, except for a liability or loss resulting from
gross negligence, willful misconduct, bad faith or reckless disregard in the performance of the
Services, or (b) any fraudulent or dishonest acts with respect to the Services Recipients. In no
event, whether based on contract, indemnity, warranty, tort (including negligence), strict liability
or otherwise, shall CVR or its Affiliates, their respective successors and permitted assigns, or
their respective employees, officers, members, managers, directors, agents and representatives,
be liable for loss of profits or revenue or special, incidental, exemplary, punitive or consequential
damages.
Section 8.03 Reliance. CVR and its Affiliates and their respective successors and
permitted assigns, together with their respective employees, officers, members, managers,
directors, agents and representatives, may take and may act and rely upon:
(a) the opinion or advice of legal counsel, which may be in-house counsel to the
Services Recipients or to CVR or its Affiliates, any U.S.-based law firm, or other legal counsel
reasonably acceptable to the Boards of Directors of the Services Recipients, in relation to the
interpretation of this Agreement or any other document (whether statutory or otherwise) or
generally in connection with the Services Recipients;
(b) advice, opinions, statements or information from bankers, accountants, auditors,
valuation consultants and other consulted Persons who are in each case believed by the relying
Person in good faith to be expert in relation to the matters upon which they are consulted; or
(c) any other document provided in connection with the Services Recipients upon
which it is reasonable for the applicable Person to rely.
A Person shall not be liable for anything done, suffered or omitted by it in good faith in
reliance upon such opinion, advice, statement, information or document.
Section 8.04 Services to Others. While CVR is providing the Services under this
Agreement, CVR shall also be permitted to provide services, including services similar to the
Services covered hereby, to others, including Affiliates of CVR.
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CVR-12547
Section 8.05 Transactions With Affiliates. CVR may recommend to the Services
Recipients, and may engage in, transactions with any of CVR's Affiliates; provided, that any
such transactions shall be subject to the authorization and approval of the Services Recipients'
Boards of Directors, as applicable.
Section 8.06 Sharing of Information. Each Party (the "Recipient Party") agrees to
maintain the confidentiality of, and not to use, the confidential or proprietary information
disclosed pursuant to or in connection with this Agreement ("Confidential Information") by or
on behalf of the other Party (the "Disclosing Party") for any purpose whatsoever except in
connection with performance pursuant to this Agreement. The obligations undertaken pursuant
to this Section do not apply to such part of the Confidential Information that is or has become
published or otherwise generally available to the public, other than as a consequence of the
willful or negligent act or omission of the Recipient Party, or which, at the time of disclosure to
the Recipient Party, was already in the lawful possession of the Recipient Party, as evidenced by
written records. The Recipient Party will impose corresponding obligations of confidentiality
and non-use on its Affiliates and each of their respective employees, agents and representatives
(collectively, "Representatives") involved in the performance of this Agreement prior to making
the Confidential Information available to them. Any breach of confidentiality or non-use of
Confidential Information by any Representative will be deemed a breach of confidentiality or
non-use by the Recipient Party. It will not be a breach of the confidentiality obligations herein
for the Recipient Party to disclose Confidential Information, where such disclosure is required by
law or applicable legal process, provided the Recipient Party agrees to (a) immediately notify the
Disclosing Party in writing of the existence, terms and circumstances surrounding such a
requirement, and (b) assist the Disclosing Party in seeking a protective order or other appropriate
remedy satisfactory to the Disclosing Party (at the expense of the Disclosing Party). If such
protective order or other remedy is not obtained (or the Disclosing Party waives compliance with
the provisions hereof), (i) the Recipient Party may disclose that portion of the Confidential
Information it is legally required to disclose, (ii) the Recipient Party will exercise reasonable
efforts to obtain assurance that confidential treatment will be accorded the Confidential
Information to be disclosed, and (iii) the Recipient Party will give written notice to the
Disclosing Party of the information to be so disclosed as far in advance of its disclosure as
practicable. The parties agree that any violation of this Section by the Recipient Party or its
Representatives may be enforced by the Disclosing Party by obtaining injunctive or specific
relief from a court of competent jurisdiction. Such relief is cumulative and not exclusive of any
other remedies available to the Disclosing Party at law or in equity, including, but not limited to,
damages and reasonable attorneys' fees.
Section 8.07 Disclosure of Remuneration. CVR shall disclose the amount of
remuneration of the Chief Financial Officer and any other officer or employee shared with or
seconded to the Services Recipients, including the Chief Executive Officer, to the Boards of
Directors of the Services Recipients to the extent required for the Services Recipients to comply
with the requirements of applicable law, including applicable Federal securities laws.
Section 8.08 Additional Seconded Personnel or Shared Personnel. CVR and the
Services Recipients' Boards of Directors may agree from time to time that CVR shall provide
additional Seconded Personnel or Shared Personnel, upon such terms as CVR and the Services
Recipients' Board of Directors may mutually agree. Any such individuals shall have such titles
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CVR-12548
and fulfill such functions as CVR and the Services Recipients may mutually agree but subject to
compliance with the agreement of limited partnership ofMLP.
Section 8.09 Operations Personnel. Personnel performing the actual day-to-day
business and operations of the Refining Subs at the refinery or operating level will be employed
by the Refining Subs, and the Refining Subs will bear all Personnel Costs or other costs relating
to such personnel.
Section 8. I 0 Election. The Services Recipients shall cause the election of any
Seconded Personnel or Shared Personnel to the extent required by the organizational documents
of the Services Recipients. The Services Recipients' Board of Directors, after due consultation
with CVR, may at any time request that CVR replace any Seconded Personnel and CVR shall, as
promptly as practicable, replace any individual with respect to whom such Board of Directors
shall have made its request, subject to the requirements for the election of officers under the
organizational documents of the Services Recipients but subject to compliance with the
agreement of limited partnership ofMLP.
ARTICLE IX
DISPUTES
Section 9.0 I Resolution of Disputes. The Parties shall in good faith attempt to resolve
promptly and amicably any dispute between the Parties arising out of or relating to this
Agreement (each a "Dispute") pursuant to this Article IX. The Parties shall first submit the
Dispute to the CVR Representative and the GP/MLP Representative, who shall then meet within
fifteen (15) days to resolve the Dispute. If the Dispute has not been resolved within forty-five
(45) days after the submission of the Dispute to the CVR Representative and the GP/MLP
Representative, the Dispute shall be submitted to a mutually agreed non-binding mediation. The
costs and expenses of the mediator shall be borne equally by the Parties, and the Parties shall pay
their own respective attorneys' fees and other costs. If the Dispute is not resolved by mediation
within ninety (90) days after the Dispute is first submitted to the CVR Representative and the
GPIMLP Representative as provided above, then the Parties may exercise all available remedies.
Section 9.02 Multi-Partv Disputes. The Parties acknowledge that they or their
respective affiliates contemplate entering or have entered into various additional agreements with
third parties that relate to the subject matter of this Agreement and that, as a consequence,
Disputes may arise hereunder that involve such third parties (each a "Multi-Party Dispute").
Accordingly, the Parties agree, with the consent of such third parties, that any such Multi-Party
Dispute, to the extent feasible, shall be resolved by and among all the interested parties
consistent with the provisions of this Article IX.
ARTICLE X
MISCELLANEOUS
Section IO.OI Notices. Except as expressly set forth to the contrary in this Agreement,
all notices, requests or consents provided for or permitted to be given under this Agreement must
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CVR-12549
be in writing and must be delivered to the recipient in person, by courier or mail or by facsimile,
telegram, telex, cablegram or similar transmission; and a notice, request or consent given under
this Agreement is effective on receipt by the Party to receive it; provided, however, that a
facsimile or other electronic transmission that is transmitted after the normal business hours of
the recipient shall be deemed effective on the next business day. All notices, requests and
consents to be sent to MLP must be sent to GP. All notices, requests and consents (including
copies thereof) to be sent to GP must be sent to or made at the address given below for GP.
If to GP or MLP, to:
Edmund S. Gross,
Senior Vice President and General Counsel
CVR Energy, Inc.
10 E. Cambridge Circle, Ste. 250
Kansas City, Kansas 66103
Facsimile: (913) 982-5651
If to CVR, to:
John J. Lipinski
President and CEO
2277 Plaza Drive
Suite 500
Sugar Land, Texas 77479
Facsimile: (281) 207-3505
Section 10.02 Effect of Waiver or Consent. Except as otherwise provided in this
Agreement, a waiver or consent, express or implied, to or of any breach or default by any Party
in the performance by that Party of its obligations under this Agreement is not a consent or
waiver to or of any other breach or default in the performance by that Party of the same or any
other obligations of that Party under this Agreement Except as otherwise provided in this
Agreement, failure on the part of a Party to complain of any act of another Party or to declare
another Party in default under this Agreement, irrespective of how long that failure continues,
does not constitute a waiver by that Party of its rights with respect to that default until the
applicable statute-of-limitations period has run.
Section 10.03 Headings: References: Intemretation. All Article and Section headings in
this Agreement are for convenience only and will not be deemed to control or affect the meaning
or construction of any of the provisions hereof. The words "hereof," "herein" and "hereunder''
and words of similar import, when used in this Agreement, will refer to this Agreement as a
whole, and not to any particular provision of this Agreement. All references herein to Articles
and Sections will, unless the context requires a different construction, be deemed to be references
to the Articles and Sections of this Agreement, respectively. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, will include all other
genders, and the singular will include the plural and vice versa. The terms "include," "includes,"
"including" or words of like import will be deemed to be followed by the words ''without
limitation."
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CVR-12550
Section 10.04 Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the Parties and their respective successors and assigns.
Section I 0.05 No Third Party Rights. The provisions of this Agreement are intended to
bind the parties signatory hereto as to each other and are not intended to and do not create rights
in any other person or confer upon any other person any benefits, rights or remedies, and no
person is or is intended to be a third party beneficiary of any of the provisions of this Agreement.
Section I0.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together will constitute one agreement binding on the Parties.
Section I0.07 Governing Law. THIS AGREEMENT IS GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
KANSAS.
Section I 0.08 Submission to Jurisdiction: Waiver of Jury Trial. Subject to the provisions
of Article IX, each of the Parties hereby irrevocably acknowledges and consents that any legal
action or proceeding brought with respect to any of the obligations arising under or relating to
this Agreement may be brought in the courts of the State of Kansas, or in the United States
District Court for the District of Kansas and each of the Parties hereby irrevocably submits to
and accepts with regard to any such action or proceeding, for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts. Each Party
hereby further irrevocably waives any claim that any such courts lack jurisdiction over such
Party, and agrees not to plead or claim, in any legal action or proceeding with respect to this
Agreement or the transactions contemplated hereby brought in any of the aforesaid courts, that
any such court lacks jurisdiction over such Party. Each Party irrevocably consents to the service
of process in any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party, at its address for notices set forth in this
Agreement, such service to become effective ten (IO) days after such mailing. Each Party
hereby irrevocably waives any objection to such service of process and further irrevocably
waives and agrees not to plead or claim in any action or proceeding commenced hereunder or
under any other documents contemplated hereby that service of process was in any way invalid
or ineffective. The foregoing shall not limit the rights of any Party to serve process in any other
manner permitted by applicable law. The foregoing consents to jurisdiction shall not constitute
general consents to service of process in the State of Kansas for any purpose except as provided
above and shall not be deemed to confer rights on any Person other than the respective Parties.
Each of the Parties hereby waives any right it may have under the laws of any jurisdiction to
commence by publication any legal action or proceeding with respect this Agreement. To the
fullest extent permitted by applicable law, each of the Parties hereby irrevocably waives the
objection which it may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement in any of the courts referred to in this
Section 10.08 and hereby further irrevocably waives and agrees not to plead or claim that any
such court is not a convenient forum for any such suit, action or proceeding. The Parties agree
that any judgment obtained by any Party or its successors or assigns in any action, suit or
proceeding referred to above may, in the discretion of such Party (or its successors or assigns),
be enforced in any jurisdiction, to the extent permitted by applicable law. The Parties agree that
the remedy at law for any breach of this Agreement may be inadequate and that should any
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CVR-12551
dispute arise concerning any matter hereunder, this Agreement shall be enforceable in a court of
equity by an injunction or a decree of specific performance. Such remedies shall, however, be
cumulative and nonexclusive, and shall be in addition to any other remedies which the Parties
may have. Each Party hereby waives, to the fullest extent permitted by applicable law, any right
it may have to a trial by jury in respect of any litigation as between the Parties directly or
indirectly arising out of, under or in connection with this Agreement or the transactions
contemplated hereby or disputes relating hereto. Each Party (i) certifies that no representative,
agent or attorney of any other Party has represented, expressly or otherwise, that such other Party
would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges
that it and the other Parties have been induced to enter into this Agreement by, among other
things, the mutual waivers and certifications in this Section I 0.08.
Section 10.09 Remedies to Prevailing Party. If any action at law or equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs, and necessary disbursements in addition to any other relief to
which such party may be entitled.
Section 10.1 0 Severabi litv. If any provision of this Agreement or the application thereof
to any Person or any circumstance is held invalid or unenforceable to any extent, the remainder
of this Agreement and the application of such provision to other Persons or circumstances shall
not be affected thereby and shall be enforced to the greatest extent permitted by law.
Section 10.11 Amendment or Modification. This Agreement may be amended or
modified from time to time only by the written agreement of all the Parties.
Section 10.12 Integration. This Agreement and the exhibit referenced herein supersede
all previous understandings or agreements among the Parties, whether oral or written, with
respect to its subject matter. This Agreement and such exhibit contain the entire understanding
of the Parties with respect to its subject matter. In the case of any actual conflict or
inconsistency between the terms of this Agreement and the agreement of limited partnership of
MLP, the terms of the agreement of limited partnership of MLP shall control. No understanding,
representation, promise or agreement, whether oral or written, is intended to be or will be
included in or form part of this Agreement unless it is contained in a written amendment hereto
executed by the Parties after the date of this Agreement.
Section I O.I3 Further Assurances. In connection with this Agreement and the
transactions contemplated hereby, each Party shall execute and deliver any additional documents
and instruments and perform any additional acts that may be reasonably necessary or appropriate
to effectuate and perform the provisions of this Agreement and those transactions.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IS
CVR-12552
This Agreement has been duly executed by the Parties as of the date first written above.
CVR REFINING, LP
By: CVR REFINING GP, LLC
its General Partner
By. ~&_oe_
Name~B811
Title: Chief Financial Officer and Treasurer
CVRREFININGGt~
By. 0
Name: Susan M. Ball
Title: Chief Financial Officer and Treasurer
CVR ENERGY, INC.
By:
SERVICES AGREEMENT
SIGNATURE PAGE
CVR-12553
Exhibit 1
The Services shall include the following:
• services in capacities equivalent to the capacities of corporate executive officers,
except that the persons serving in such capacities shall serve in such capacities as
Shared Personnel on a shared, part-time basis only, unless and to the extent otherwise
agreed by CVR;
• safety and environmental advice;
• administrative and professional services, including legal, accounting, human
resources, insurance, tax, credit, finance, government affairs, and regulatory affairs;
• manage the Services Recipients' day-to-day business and operations, including
managing its liquidity and capital resources and compliance with applicable law;
• establishing and maintaining books and records of the Services Recipients in
accordance with customary practice and GAAP;
• recommend to the Services Recipients' Board of Directors (x) capital raising
activities, including the issuance of debt or equity securities of the Services
Recipients, the entry into credit facilities or other credit arrangements, structured
financings or other capital market transactions, (y) changes or other modifications in
the capital structure of the Services Recipients, including repurchases;
• recommend to the Services Recipients' Board of Directors the engagement of or, if
approval is not otherwise required hereunder, engage agents, consultants or other
third party service providers to the Services Recipients, including accountants,
lawyers or experts, in each case, as may be necessary by the Services Recipients from
time to time;
• manage the Services Recipients' property and assets in the ordinary course of
business;
• manage or oversee litigation, administrative or regulatory proceedings, investigations
or any other reviews of the Services Recipients' business or operations that may arise
in the ordinary course of business or otherwise, subject to the approval of the Services
Recipients' Board of Directors to the extent necessary in connection with the
settlement, compromise, consent to the entry of an order or judgment or other
agreement resolving any of the foregoing;
• establish and maintain appropriate insurance policies with respect to the Services
Recipients' business and operations;
• recommend to the Services Recipients' Board of Directors the payment of dividends
or other distributions on the equity interests of the Services Recipients;
EXHIBIT 1
PAGEl
CVR-12554
• attend to the timely calculation and payment of taxes payable, and the filing of all
taxes return due, by the Services Recipients; and
• manage or provide advice or recommendations for other projects of the Services
Recipients, as may be agreed to between GP and CVR from time to time.
EXHIBIT I
PAGE2
CVR-12555
Tab 12
§ 71.051. Forum Non Conveniens, TX CIV PRAC & REM § 71.051
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 4· Liability in Tort
Chapter 71. Wrongful Death; Survival; Injuries Occuning Out of State (Refs & Annos)
Subchapter D. Forum Non Conveniens
V.T.C.A., Civil Practice & Remedies Code§ 71.051
§ 71.051. Forum Non Conveniens
Effective: September 1, 2005
Currentness
(a) Repealed by Acts 2003, 78th Leg., ch. 204, § 3.09.
(b) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the
parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court
shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action.
In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court
shall consider whether:
( 1) an alternate forum exists in which the claim or action may be tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;
(4) the alternate forum, as a result of the submission ofthe parties or otherwise, can exercise jurisdiction over all the defendants
properly joined to the plaintiffs claim;
(5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim
or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death
resulted from acts or omissions that occurred in this state; and
(6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.
(c) The court may set terms and conditions for staying or dismissing a claim or action under this section as the interests ofjustice
may require, giving due regard to the rights of the parties to the claim or action. If a moving party violates a term or condition of
a stay or dismissal, the court shall withdraw the order staying or dismissing the claim or action and proceed as if the order had
never been issued. Notwithstanding any other law, the court shall have continuing jurisdiction for purposes of this subsection.
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 71.051. Forum Non Conveniens, TX CIV PRAC & REM § 71.051
(d) A request for stay or dismissal under this section is timely if it is filed not later than 180 days after the time required for
filing a motion to transfer venue of the claim or action. The court may rule on a motion filed under this section only after a
hearing with notice to all parties not less than 21 days before the date specified for the hearing. The court shall afford all of
the parties ample opportunity to obtain discovery of information relevant to the motion prior to a hearing on a motion under
this section. The moving party shall have the responsibility to request and obtain a hearing on such motion at a reasonable time
prior to commencement of the trial, and in no case shall the hearing be held less than 30 days prior to trial.
(e) The court may not stay or dismiss a plaintiffs claim under Subsection (b) if the plaintiff is a legal resident of this state.
If an action involves both plaintiffs who are legal residents of this state and plaintiffs who are not, the court may not stay or
dismiss the action under Subsection (b) if the plaintiffs who are legal residents of this state are properly joined in the action
and the action arose out of a single occurrence. The court shall dismiss a claim under Subsection (b) if the court finds by a
preponderance of the evidence that a party was joined solely for the purpose of obtaining or maintaining jurisdiction in this
state and the party's claim would be more properly heard in a forum outside this state.
(f) A court that grants a motion to stay or dismiss an action under the doctrine of forum non conveniens shall set forth specific
findings of fact and conclusions of law.
(g) Any time limit established by this section may be extended by the court at the request of any party for good cause shown.
(h) In this section:
( 1) "Legal resident" means an individual who intends the specified political subdivision to be his permanent residence and
who intends to return to the specified political subdivision despite temporary residence elsewhere or despite temporary
absences, without regard to the individual's country of citizenship or national origin. The term does not include an individual
who adopts a residence in the specified political subdivision in bad faith for purposes of avoiding the application of this
section.
(2) "Plaintiff' means a party seeking recovery of damages for personal injury or wrongful death. In a cause of action in which
a party seeks recovery of damages for personal injury to or the wrongful death of another person, "plaintiff' includes both
that other person and the party seeking such recovery. The term does not include a counterclaimant, cross-claimant, or third-
party plaintiff or a person who is assigned a cause of action for personal injury, or who accepts an appointment as a personal
representative in a wrongful death action, in bad faith for purposes of affecting in any way the application of this section.
(i) This section applies to actions for personal injury or wrongful death. This section shall govern the courts of this state in
determining issues under the doctrine of forum non conveniens in the actions to which it applies, notwithstanding Section
71.031(a) or any other law.
Credits
Added by Acts 1993, 73rd Leg., ch. 4, § 1, eff. Aug. 30, 1993. Amended by Acts 1995, 74th Leg., ch. 567, § 1, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 424, § 1, eff. May 29, 1997; Acts 2003, 78th Leg., ch. 204, §§ 3.04, 3.09, eff. Sept. 1, 2003;
Acts 2005, 79th Leg., ch. 248, § 1, eff. Sept. 1, 2005.
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 71.051. Forum Non Conveniens, TX CIV PRAC & REM § 71.051
Notes of Decisions (143)
V. T. C. A., Civil Practice & Remedies Code§ 71.051, TX CIV PRAC & REM§ 71.051
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Tab 13
60-258a. Comparative negligence, KS ST 60-258a
West's Kansas Statutes Annotated
Chapter 60. Procedure, Civil
Article 2. Rules of Civil Procedure
K.S.A. 60-258a
60-258a. Comparative negligence
Currentness
(a) Effect ofcontributory negligence. The contributory negligence of a party in a civil action does not bar that party or its legal
representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss,
if that party's negligence was less than the causal negligence of the party or parties against whom a claim is made, but the award
of damages to that party must be reduced in proportion to the amount of negligence attributed to that party. If a party claims
damages for a decedent's wrongful death, the negligence of the decedent, if any, must be imputed to that party.
(b) Special verdicts orfindings required When the comparative negligence of the parties is an issue, the jury must return special
verdicts, or in the absence of a jury, the court must make special findings, determining the percentage of negligence attributable
to each party and the total amount of damages sustained by each claimant. The court must determine the appropriate judgment.
(c) Joining additional parties. On motion of any party against whom a claim is asserted for negligence resulting in death,
personal injury, property damage or economic loss, any other person whose causal negligence is claimed to have contributed
to the death, personal injury, property damage or economic loss, must be joined as an additional party.
{d) Apportioning liability. When the comparative negligence of the parties is an issue and recovery is permitted against more
than one party, each party is liable for that portion of the total dollar amount awarded as damages to a claimant in the proportion
that the amount of that party's causal negligence bears to the amount of the causal negligence attributed to all parties against
whom recovery is permitted.
(e) Applicability. This section is applicable to actions under this chapter and to actions commenced under the code of civil
procedure for limited actions.
Credits
Laws 1974, ch. 239, § 1; Laws 1976, ch. 251, § 4; Laws 1987, ch. 221, § 1; Laws 2010, ch. 135, § 132, eff. July 1, 2010.
Notes of Decisions {290)
K. S. A. 60-258a, KS ST 60-258a
Statutes are current through laws enacted during the 2014 Regular Session of the Kansas Legislature and those laws enacted
during the 2015 Regular Session of the Kansas Legislature effective on or before June 26, 2015 {chapters 1, 4, 5, 9, 13, 14, 27,
32, 39, 41, 43, 48,49 (partial), 50, 51, 54, 56, 59, 72, 74, 79, 80, 81 (partial), 84, 86,92 (partial) and 103).
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Tab 14
60-513. Actions limited to two years, KS ST 60-513
West's Kansas Statutes Annotated
Chapter 60. Procedure, Civil
Article 5· Limitations of Actions
Personal Actions and General Provisions
K.S.A. 60-513
60-513. Actions limited to two years
Currentness
(a) The following actions shall be brought within two years:
(I) An action for trespass upon real property.
(2) An action for taking, detaining or injuring personal property, including actions for the specific recovery thereof.
(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud
is discovered.
(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
(5) An action for wrongful death.
(6) An action to recover for an ionizing radiation injury as provided in K.S.A. 60-513a, 60-513b and 60-513c, and amendments
thereto.
(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising
on contract.
(b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued
until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable
until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably
ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the
act giving rise to the cause of action.
(c) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall
be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury
is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the
fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more
than four years beyond the time of the act giving rise to the cause of action.
WestlawNext' © 2015 Thomson Reuters. No claim to original U.S. Government Works.
60-513. Actions limited to two years, KS ST 60-513
(d) A negligence cause of action by a corporation or association against an officer or director of the corporation or association
shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact
of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence
until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced
more than five years beyond the time of the act giving rise to the cause of action. All other causes of action by a corporation or
association against an officer or director of the corporation or association shall not be deemed to have accrued until the act giving
rise to the cause of action first causes substantial injury and there exists a disinterested majority ofnonculpable directors of the
corporation or association, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the
period of limitation shall not commence until the fact of injury becomes reasonably ascertainable and there exists a disinterested
majority of nonculpable directors of the corporation or association, but in no event shall such an action be commenced more
than 10 years beyond the time ofthe act giving rise to the cause of action. For purposes ofthis subsection, the term "negligence
cause of action" shall not include a cause of action seeking monetary damages for any breach of the officer's or director's duty
ofloyalty to the corporation or association, for acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, for liability under K.S.A. 17-5812, 17-6410, 17-6423, 17-6424 or 17-6603 and amendments thereto,
or for any transaction from which the officer or director derived an improper personal benefit.
(e) The provisions of this section as it was constituted prior to July 1, 1996, shall continue in force and effect for a period of
two years from that date with respect to any act giving rise to a cause of action occurring prior to that date.
Credits
Laws 1963, ch. 303, 60-513; Laws 1968, ch. 6, § 1; Laws 1976, ch. 254, § 1; Laws 1987, ch. 222, § 1; Laws 1996, ch. 127, § 1.
Notes ofDecisions (1004)
K. S. A. 60-513, KS ST 60-513
Statutes are current through laws enacted during the 2014 Regular Session of the Kansas Legislature and those laws enacted
during the 2015 Regular Session of the Kansas Legislature effective on or before June 26, 2015 (chapters 1, 4, 5, 9, 13, 14, 27,
32, 39, 41, 43, 48, 49 (partial), 50, 51, 54, 56, 59, 72, 74, 79, 80, 81 (partial), 84, 86, 92 (partial) and 103).
End of Document 10 2015 Thomson Reuters. No claim to original U.S. Government Works.
'v'VestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Tab 15
171.02 Pattern Instructions Kansas 411r
171.02
TYPES OF DAMAGES ALLOWED-PERSONAL INJURY
When determining the amount of damages sustained by the plaintiff, you
must allow the amount of money that wiD reasonably compensate plaintiff for
his/her injuries and losses resulting from the occurrence In question. These
Injuries and losses may include any of the following shown by the evidence:
1. MEDICAL EXPENSES. Medical expenses include the
reasonable expenses of necessary medical care, hospitalization
and treatment received as a result of plaintiff"s Injuries to date
(and the medical expenses plaintiff is reasonably expected to
incur In the future) [reduced to present value].
2. ECONOMIC LOSS. Economic loss includes loss of time
or income and losses other than medical expenses Incurred as
a result of plaintiff's Injuries to date (and the economic loss
plaintiff is reasonably expected to Incur In the future) [reduced
to present value].
3. NONECONOMIC LOSS. Noneconomic loss Includes
pain, suffering, disabilities, disfigurement and any accompanying
mental anguish suffered as a result of plaintiff's Injuries to date (__!
(and the noneconomic loss plaintiff Is reasonably expected to
suffer in the future) [reduced to present value].
[The reasonable value of any medical care, hospitaHzation, or treatment
Incurred by the plaintiff is a question for the jury to determine. Evidence
relevant to determining the reasonable value of an injured plaintiff's medical
expenses may include the amount actually billed by the health care provider.
The evidence also may Include write-offs or other acknowledgments that
something less than the amount charged has satisfied, or wm satisfy, the
amount billed. Accordingly, neither the amount billed nor the amount
actually accepted after a write-off conclusively estabHshes the reasonable
value of medical services.]
When determining the amount of plaintiff's damages you must consider
plaintiff's age, condition of health before and after the occurrence In question,
and the nature, extent and duration of the plaintiff's injuries.
Ifyou find plafntitf suffered an injury or injuries and more than minimal
discomfort as a result of the occurrence, then you must compensate the
plaintiff for plaintiff's pain and suffering. There is no unit value and no
mathematical formula the court can give you for determining items such as
pain, suffering, disability, and mental anguish. You must estabBsh an amount
that wiD fairly and adequately compensate the plaintiff. This amount rests
withln your sound discretion.
l-_)l
171-4 2014
--- -----------------------
Pattern Instructions Kansas 4th 171.02
( You must itemize the amounts of damages awarded In this case on the
verdict form.
Notes on Use
For authority, see K.S.A. 60-249a. This instruction combines the two separate instructions which
originally appeared as 171.01 and 171.02.
The trial comt should instruct the jury only on those items of damage upon which there is some
evidence to base an award. The parenthetical language should be included when there is evidence of
future damages. The bracketed language should be used only when evidence of present value has been
introduced.
In MartJnez v. Milburn Enterprises, Inc., 290 Kan 572, 233 P.3d 205 (2010), the court held that
the collateral source rule did not bar evidence of the amount originally billed by the health care provider
for ptamtifrs medical treatment or the reduced amount accepted by the provider in full satisfaction of the
amount billed. Evidence of the amount billed and the reduced amount accepted are relevant to prove the
reasonable value of medical treatment Ifsuch evidence is admitted, the bracketed paragraph regarding the
teaSOnable value of medical treatment should be used. In addition, a limiting instruction must be given.
See PIK. 4dl 102.40, Limited AdmissibiHty of Evidence as to One Party or Purpose.
In Stowers v. Rbnel, 19 Kan. App. 2d 723, 875 P.2d 1002 (1994), the jmy retumed a verdict limited
to the plaintift"s medical expenses. Because the evidence was uncontradicted 1bat plaintiffhad experienced
pain and sufi'cring, the trial court instructed the jury to Ie8UD1e its deh"berations to consider that element
of damage. On appeal, the Court of Appeals affirmed the trial court's order that the jury resume its
deh"berations.
Under circumstances like those presented in Stowers, the following instruction could be used:
In view of your verdict awarding medical expenses, the law requires tbat you award
some amount for pain and suffering. You should resume your deliberations to determine
that amount The amount of damages rests within your sound discretion.
This pattern instruction must be revised or modified if the underlying theol}' to support recovety is
based upon diminution or deprivation of chance to survive. See Boody v. U.S., 706 F. Supp. 1458 (D. Kan.
1989),andDonninlv. Outmo, 15Kan. App.2d517, 810P.2d 1163 (1991). SeealsoPIK.4th 181.05, Verdict
Form-Loss of Chance Issue--Survival, and PIK. 4dl 123.21, Loss of Chance-Survival-Causation.
Comment
In a personal injury action, the incidence of federal or state income taxation is not a proper factor to
be consl~ by the jury in making an award of damages. Redikerv. Chicago, Rock Island & Pacific Rid
Co., 1 Kan. App. 2d 581, 590, 571 P.2d 70 (1977); Spencer v. Eby Construction Co., 186 Kan. 345, 350,
350 p.2d 18 (1960).
In an action for personal injuries, the trial court should Instruct the jury only on those items of
damage upon which there·is some evidence to base an award. It is not proper to give a general instruction
on damages for "any of the following shown by the evidence," when there is no evidence to support an
award for a particular item. W'ahwaruckv. Konsas Power & Light Co., 250 Kan. 606, 828 P.2d 923 (1992);
Garrison v. Marlatt, 224 Kan. 390, 580 P.2d 885 (1978).
A defendant in any action is allowed to have amounts allowed for future damages reduced to present
worth where there are reasonable grounds to expect that the amount awarded may be ~ely and profitably
invested. Evidence demonstrating how to compute present worth, either by way of expert testimony or
appropriate mathematical tables or formulae, is admissible in any action in which substantial future damages
are claimed. Gannaway v. Missouri-Kansas-Texas Rid. Co., 2 Kan. App. 2d 81, 575 P.2d 566 (1978).
2014 171-5
171.02 Pattem Instructions Kansas 4th
Disfigurement bas been defined as that which impairs or injures the beauty, s,mmetry or appearance
of a person or thing, that which renders unsightly, misshapen or imperfect, or deforms in some m.anner. (
Smith v. Marshall, 22S Kan. 70, 581 P.2d 320 (1978}. Evidence of a locking elbow which occurred
frequently and without warning meets the definition of disfigurement Ratterree v. Bartlett, 238 Kan. 11,
21, 707 P.2d 1063 (1985), citing with approval this instruction.
Impairment ofan injured party's capacity to earn is relevant in calculating that party's loss of income.
The amount of damages to be awarded is determined by "comparing what the injured party was capable of
eaming at or before the time of the injury with what the party is capable of earning after 1he injury." The
injured party's health and physical ability before and after the injury should also be considered. Moms
v. Francisco, 238 Kan. 71, 79, 708 P.2d 498 (1985). See also Cetrettl v. Flint Hills lblral Electric Co-op
Ass'n, 251 Kan. 347, 837 P.2d 330 (1992).
Loss of enjoyment of Ufe is not a separate category of nonpecuniary damages in a personal injUIY
action and it is error to submit a separate instroctiou, or provide a separate verdict form entry, on loss of
enjoyment of life. However, in a proper case loss of enjoyment oflife is a valid subcomponent or element
of pain and suffering and/or disability. Leiker v. Gafford, 245 Kan. 325, 778 P.2d 823 (1989).
Under the rationale ofLeiker, the trial court properly allowed plaintiff to argue loss ofenjoyment of
Ufe and instructed the jury that such a loss is an element ofdisability, pain, and suffering. Gregory v. Carey,
246 Kan. 504, 514, 791 p .2d 1329 (1990).
60-19a01 and 60·19a021imit maximum allowable recovery for noneconomic loss to $250,000 in
any action for personal injmies. In Samsel v. Wheeler Transport Servicea, Inc., 244 Kan. 726, 771 P.2d
71 (1989}, these limits were held constitutional. The jUI)' is not to be told about the statutoty limit, but is
required to itemize the amount awarded for pain and suffering. Although it is proper for counsel to tell the
jury tbatthe plaintifl'is only asking for $250,000 for noneconomic loss or 1hat plaintiff's claim for such loss
is limited to $250,000, the jmy is not to be told that this is a statutory limitation. Tamplin v. Star Lumber &
Supply Co., 251 Kan. 300,311, 836P.2d 1102 (1992). (
Anxiety based upon a reasonable fear that an existing injUIY will lead to the occurrence of a disease
or condition in the future is an element of recovery. For the fear to be reasonable, it is not necessary to
show that the prospect of such an occurrence is a medical certainty or probability. It is sufficient if there
is a showing that a substantial possibility exists for such an OCCUI'1'ence. Tamplin v. Star Lumber & Supply
Co., 251 Kan. 300, 308, 836 P.2d 1102 (1992).
A disability may be a noneconomic loss or an economic loss. If damages me awarded for pain and
suffering based upon a disability, the disability is a noneconomic loss subject to a damages cap. If the
damages award is for diminished earning capacity based on that disability, the loss is economic and not
subject to a damages cap. Extent ofdiminished earning capacity is arrived at by comparing what the injured
party was capable of earning at or before time of injury with what party is capable of earning after injUI)'.
Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 471, 856 P.2d 906 (1993}.
Economic damages include the cost of medical care, past and future, and related benefits, i.e., lost
wages, loss of earning capacity, and other such losses. Noneconomic losses include claims for pain and
suffering, mental anguish, injUI)', disfigurement not affecting earning capacity, and losses which cannot be
easily expressed in dollars and cents. McKissick v. Frye, 2SS Kan. 566, 588, 876 P.2d 1371 (1994).
lnShirleyv. Smith, 261 Kan. 685,933 P.2d 651 (1997), a medical malpractice case arising from an
unsuccessful bone marrow operation, the court allowed the plabltiifto claim economic damages for loss of
time spent by the plaintiff in self-catheterization. The court determined 1hat loss of time was compensable
as measured by the amount an employer would have paid plaintiff for the time spent on the procedure. The
amount awarded was not subject to the cap for noneconomic damages.
In Wilson v. Williams, 261 Kan. 703, 710, 933 P.2d 757 (1997), the court allowed a per diem or
mathematical formula argument by counsel in order for a jUIY to place value on pain and suffering. 'Ibis ( .. \
decision overruled Caylor v. Atchison, T. & S. F. Rly. Co., 190 Kan. 261, 374 P.2d 53 (1962}. Even though
counsel is now allowed to argue a mathematical formula for the jury to compute pain and suffering, the trial
court should not provide a mathematical formula to the jury.
171-6 2014
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