in Re CVR Energy, INC. and CVR Refining, LP
This text of in Re CVR Energy, INC. and CVR Refining, LP (in Re CVR Energy, INC. and CVR Refining, LP) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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
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.
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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
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
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 17 18 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 4 PAGE VOL.
5 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 6 Ruling of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1
7 Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1
8 Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 1
10 11
12 13 14 15
16 17 18 19 20
21 22 23
24 25
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 16 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 18 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 19 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
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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
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
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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)
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Skio to Main Content Logout My Account Search Menu New Civil Search Back Location : Fort Bend Help 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 - Other Images on This Case Image Page Count http://tylerpaw.co.fort-bend.tx.us/CaseDocuments.aspx?CaselD=l439943&EventiD=1666... 8/19/2015 Tab4 Filed 1/12/201511:34:37 AM Ann1e Rebecca Elliott District Clerk Fort Bend County, Texas SoonyGarcia CAUSE NO. 15-DCV-220330 DONALD R COLLIER, JENNIFER J. § IN THE DISTRICT COURT OF COLLIER, DALE A NIEMEYER, and § WENDY NIE:MEYER § Plaintiffs, § v. § FORT BEND COUN1Y, TEXAS § ~ Fort Bend County - 268th Judicial District Court CVR ENERGY, INC. and, CVR REFINING, LP. Defendants. § JUDICIAL DIS1RICT PLAINTIFFS' ORIGINAL PETITION TO TilE HONORABLE COURT: COME NOW, Plaintiffs DONALD R. COLLIER, JENNIFER J. COLLIER, DALE A. NIEMEYER and WENDY NIEMEYER complaining of and against CVR ENERGY, INC. and CVR REFINING, LP (hereinafter collectively referred to "CVR"); Defendants herein, and for cause of action, would respectfully show unto the Court as follows: 1. Plaintiffs intend to conduct discovery under Level 3 pursuant to Rule 190.3 of the Texas Rules of Civil Procedure. ll. PARTIES 2. Plaintiff DONALD R. COLLIER, is an individual who resides in Independence, Kansas. 3. Plaintiffs JENNIFER J. COLLIER, is an individual who resides in Independence, 4. Plaintiff DALE A NffiMEYER, is an individual who resides inS. Coffeyville, Oklahoma. 5. Plaintiff WENDY NIEMEYER, is an individual who resides in S. Coffeyville, 1 6. Defendant CVR ENERGY, INC. (hereinafter referred to as "CVR") is a Delaware corporation with its principal place of business located in Fort Bend County, Texas. Defendant may be served with process by serving citation on its Registered Agent C. T. Corporation System, 350 North St. Paul Street, Suite 2900, Dallas, Texas 75201. 7. Defendant CVR Refming, LP (hereinafter referred to as "CVR Refming'') is a Delaware corporation with its principal place of business located in Fort Bend County, Texas. Defendant may be served with process by serving citation on its Registered Agent CSC, Corporation Service Company, 211 East 'Ph Street, Suite 620, Austin, Texas 78701. m. JURISDICfiON AND VENUE 8. Plaintiffs seek damages within the jurisdictional limits of this Court. 9. This Court has personal jurisdiction over defendants because each of the Defendants has its principal place of business in Fort Bend County, Texas and all Defendants are engaged in foreseeable, intentional, continuous, and/or systematic contacts within Texas, so that there is both general and specific personal jurisdiction. 10. Furthermore, exercising jurisdiction over those Defendants based outside of Texas will not offend the notions of fair play and substantial justice. 11. Venue is proper in Fort Bend County, Texas pursuant to TRCP § 15.002(a) (3) because it is the county of the defendant's principal office in this state. 12. Plaintiffs are employees of Defendant Coffeyville Resources Refming &Marketing, LLC (hereafter referred to as "CRRM"). CRRM is a wholly-owned subsidiary and controlled by Defendants CVR Refming LP, CVR Refining, LLC, and CVR Energy, Inc. (hereafter referred to as "CVR''). 2 13. Plaintiffs, as employees ofCRRM, worked at an oil refinery in Coffeyville, Kansas, hereafter referred to as the Coffeyville Refinery or the Refinery. The Coffeyville Refinery is owned and controlled by CVR. 14. On July 29, 2014, a critical leak occurred on a pump in the Isometric Unit of the Refmery. A huge, fiery explosion resulted, severely injuring Plaintiffs and causing the death of another employee, Greg Rigdon. Relationship ofCRRM and CVR 15. Plaintiffs incorporate, by reference to paragraphs two (2) through fifteen (15) herein, their previous allegations. 16. CRRM is a wholly-owned subsidiary of CVR Refining LP, and ultimately, up the corporate chain, a wholly-owned subsidiary of CVR Energy, LLC. 17. CVR Energy, Inc., and CVR Refming, LP ("CVR Refining") collectively own/control CRRM. CVR are parent companies of CRRM. The CVR companies are created as a vast web of corporate control and direction created for the sole purpose of maximizing profit, corporate greed and veiled legal attempts to protect themselves from their own negligence. a CVR owns all or most of CRRM stock; b. CVR and CRRM have common directors and officers; c. CVR provides financing to CRRM; d. CVR subscribes to all of CRRM's stock; e. CRRM is Wldercapitalized without CVR; f. CVR refers to CRRM as its subsidiary, division or department; 3 g. CRRM's officers or directors follow direction from CVR; and h. the legal formalities for keeping these entities (CVR and CRRM) separate and independent are observed. CVR is the collective, dominant corporation over CRRM, their wholly-owned subsidiary and is therefore liable for the torts of its wholly-owned subsidiary. 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. CVR failed. CVR's failure is negligence as defined above. 20. Plaintiffs incorporate, by reference to paragraphs two (2) through nineteen (19) herein that additionally, Defendants' acts involved an extreme degree of risk to Donald R. Collier and Dale A Niemeyer, considering the probability and magnitude of the potential bann to others, especially in light of certain facts which were known to Defendants before Donald R. Collier and Dale A Niemeyer sustained severe and disabling injuries. 21. Defendants' acts and omissions 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. VDI. CHOICE OF LAW- TEXAS 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 4 corporate officers, directors and employees in Texas. Defendants CVR seek all benefrts and protections ofTexas law. Texas has a vested interest in the conduct of its corporate citizens. 23. As a result of the Defendants' actions, each Plaintiff has been deprived of the care, maintenance, support, services, advice, counsel, and contributions of a pecuniary value, as well as companionship and society, including love and comfort as a result of the injuries of DONALD R. COLLIER and DALE A NIEMEYER. Further, Plaintiffs have suffered pecuniary losses, in the past, have experienced and will continue to experience immense mental anguish, suffering and grief in the future. Plaintiffs seek all damages available for the injuries of DONALD R. COLUER and DALE A. NffiMEYER. 24. The Defendants ·have been guilty of reckless disregard for the rights of others, have acted intentionally and with malice towards others and engaged in conduct life-threatening to humans. Plaintiffs are, therefore, entitled to an award of punitive damages. X.CONDITIONSPRECEDENT 25. All conditions precedent to Plaintiffs' right to recover herein and to Defendants' liability have been performed or have occurred. 26. Plaintiffs demand that all issues of fact in this case be tried to a properly impaneled jury. 27. Plaintiffs request all infonnation be provided pursuant to Texas Rule of Civil Procedure 194.2. XID. CONCLUSION AND PRAYER s 28. WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that, after trial on the merits, Plaintiffs obtain judgment against Defendants for the following: i. monetary relief over $1,000,000.00; j. pre-judgment and post-judgment interest thereon at 1he maximum legal rate; k. costs of Court; and l. such o1her and further reliefto which Plaintiffs may be justly entitled. Respectfully submitted, THE RIEBSCHLAGER LAW FIRM, PC 801 Congress, Suite 250 Houston, TX 77002 Telephone: 281 904-1404 Email: ~..::a=~=.:.:~~~:~::..:~~~ /s/Garv M. Riebschlager GARY M. RIEBSCHLAGER Texas BarNo. 16902200 TATEMOERER&KING, LLP RICHARD L. TATE State Bar No. 19664460 Email:lrltate@tate-law.coml KRISTIN REIS State Bar No. 24060478 Email:lkreis@tate-law.coml 206 South 2nd Street Richmond, Texas 77469 Telephone: 281-341-0077 Facsimile: 281-341-1003 ATTORNEYS FOR PLAINTIFFS DONNIE COLLIER AND JENNIFER COLLIER DALE A. NIE1\1EYER AND WENDY NIEMEYER 6 CAUSE N O . - - - - - DONALD R. COLLIER, JENNIFER J. § IN THE DISTRICT COURT OF COLLIER, DALE A NIE1\1EYER, and § WENDY NIEMEYER § Plaintiffs, § v. § FORT BEND COUNTY, TEXAS § CVR ENERGY, INC. and, § CVRREFINING, LP. § Defendants. § _ _ _ JUDICIAL DISTRICT PLAINTIFFS' FIRST REQUEST FOR PRODUCfiON TO DEFENDANTS CVR ENERGY. INC. AND CVR REFINING, LP TO: Defendant CVR ENERGY, INC., by and through its Registered Agent, C. T. Corporation System, 350 N. St Paul Street, Suite 2900, Dallas, TX 77201 Defendant CVR REFINING, LP, by and through their Registered Agent, CSC, Corporation Service Company, 211 East Th Street, Suite 620, Austin, TX 78701 COME NOW, DONALD L. COLLIER, JENNIFER J. COLUER, DALE A. NIEMEYER, and WENDY NEIMEYER (hereafter collectively referred to as "Plaintiffs"), in the above entitled and numbered cause, and hereby pursuant to Rule 196 of the Texas Rules of Civil Procedure, serve the attached written requests for production on Defendants CVR ENERGY, INC. and CVR REFINING, LP, requesting that Defendants produce and pennit the inspection and copying the documents or things requested below, within frll.y (50) days after service of this request, at the office of the undersigned located at THE RlEBSCHLAG ER LAW FIRM, PC, 801 Congress, Suite 250, Houston, Texas 77002, or at such other time and place as may mutually agreed upon. THE RIEBSCHLAGER LAW FIRM, PC Is/Gary M. Riebschlager GARY M. RIEBSCHLAGER 1 Texas Bar No. 16902200 801 Congress, Suite 250 Houston, TX 77002 Telephone: 281 904-1404 Email: 1~I''Ufhl TATE MOERER & KING, LLP RICHARDL. TATE State Bar No. 19664460 Email:lrltate@tate-law.coml KRISTIN REIS State Bar No. 24060478 Email:lkreis@tate-law.com I 206 South 2nd Street Richmond, Texas 77469 Telephone: 281-341-0077 Facsimile: 281-341-1003 ATTORNEYS FOR PLAINTIFFS DONNIE COLLIER AND JENNIFER COLLIER DALE A NIEMEYER AND WENDY NIEIVIEYER 2 DEFINITIONS AND INSTRUCTIONS The following definitions and instructions apply to the requests listed below: 1. "Plaintiffs" refer to the Plaintiffs named in this lawsuit unless specifically referred to otherwise. 2. "Defendant" refers to CVR ENERGY, INC.; and CVR REFINING, LP and its agents, representatives and employees (past or present) unless referred to otherwise. 3. "You," "your," or "yours" shall mean CVR ENERGY, INC.; and CVR REFINING, LP or yom agent, contractor or designee 4. The tenn "and/or," "or," and "and" are used inclusively, not exclusively. S. "Document(s)" shall mean all original or copies of communications reduced to tangible fonn, whether print or electronic format, in the possession, custody or control of the Defendant. 6. The term "communication(s)" shall mean all emails, letters, telegraphs, memoranda, including all reports of or references to telephone conversations, face-to-face conversations or other forms of oral or written communications, whether maintained as print or electronic fonnat 7. "Incident" or "Incident in Question" means the valve failure in the ISOM Unit occurring on or about July 29, 2014 causing the events and damages described in Plaintiffs' pleadings. 8. "Relevant Time Period" shall mean Syears prior to the Incident, inclusive. 9. "OSHA" refers to Occupational Health & Safety Administration. 3 PLAINTIFFS, FIRST REQUEST FOR PRODUCTION TO CVRENERGY, INC; CVR REFINING, LP If you claim any document(s) are privileged and not discoverable, please identify generally the document(s) withheld and the basis of privilege. REQUEST FOR PRODUCTION NO.I: All documents evidencing statements made by witnesses pertaining to the Incident in question. RESPONSE: REQUEST FOR PRODUCTION NO.2: All initial, preliminary, interim or final incident reports pertaining to the Incident in question including but not limited to those prepared for or by: a) You; b) OSHA; c) any other government agency or department REQUEST FOR PRODUCTION NO.3: All drafts of any accident/incident investigation reports pertaining to the Incident in question. REQUEST FOR PRODUCTION NO.4: All documents furnished to any governmental agency related to the Incident in question. REQUEST FOR PRODUCTION NO.5: All photographs or video recordings of or near the location of the Incident taken or obtained as a result of the Incident in question. 4 REQUEST FOR PRODUCTION NO. 6: All safety bulletins or memos issued or circulated pertaining to the Incident in question. REQUEST FOR PRODUCTION NO.7: All documents which identify any members of any incident investigation team pertaining to the Incident in question. REQUEST FOR PRODUCTION NO.8: All documents which identify any members of any incident investigation team pertaining to the Incident in question. REQUEST FOR PRODUCTION NO. 9: All photographs or video recordings taken or recorded during any site inspection related to the Incident in Question. REQUEST FOR PRODUCTION NO. 10: All safety manuals, user manuals, maintenance and repair manuals in your possession with regards to the IS OM Unit that fonns the basis of this lawsuit. REQUEST FOR PRODUCTION NO. 11: All documents, pertaining to the maintenance and repairs made, within the Relevant Time Period.to the ISOM Unit valve that failed causing the Incident in Question. 5 REQUEST FOR PRODUCTION NO. 12: All communications pertaining to the maintenance and repairs made, within the Relevant Time Period.to the ISOM Unit valve that failed causing the Incident in Question. REQUEST FOR PRODUCTION N0.13: All OSHA reports and OSHA violations issued regarding your refmery in Coffeyville, Kansas within the Relevant Time Period REOUESf FOR PRODUCTION NO. 14: All documents prepared and submitted by you to OSHA or any other governmental agency concerning your refmery in Coffeyville, Kansas regarding the Incident in Question. REQUEST FOR PRODUCTION NO. 15: All documents prepared by you or any third party regarding the ISOM Unit valve failure regarding the Incident in Question. REQUEST FOR PRODUCTION NO. 16: The Budget prepared by and for the Coffeyville plant, inclusive of the ISOM Unit, for the year 2014 and submitted to the Board of Directors of Coffeyville Refining and Marketing and/or its parents CVR Refming LLC or CVR Refming, LP. REQUEST FOR PRODUCTION NO. 17: The Budgets prepared by the Coffeyville plant for the Relevant Time Period. 6 ... REQUEST FOR PRODUCTION NO. 18: The Capital Plan prepared by and for the Coffeyville plant, inclusive of the ISOM Unit, for the year 2014 and submitted to the Board of Directors of Coffeyville Refining and Marketing and/or its parents CVR Refming LLC or CVR Refming LP REQUEST FOR PRODUCTION NO. 19: All Capital Plans prepared by the Coffeyville plant for the Relevant Time Period REQUEST FOR PRODUCTION NO. 20: All communications between you and any agent, employee or representative of CVR Refming LLC and /or CVR Refming LP regarding the Budget of2014. REQUEST FOR PRODUCTION NO. 21: All communications between you and agent, employee, or representative of CVR Refming LLC and/or CVR Refming LP regarding the Capital Plan of20 14. REQUEST FOR PRODUCTION NO. 22: All documents evidencing any actual maintenance upon the valve/pump from which product leaked causing the Incident in Question. REQUEST FOR PRODUCTION NO. 23: All documents evidencing any planned maintenance upon the valve/pump from which product leaked causing the Incident in Question. 7 ' I ... .. REQUEST FOR PRODUCfiON NO. 23: All documents evidencing any actual maintenance upon the valve/pump from which product leaked causing the Incident in Question. REQUEST FOR PRODUCTION NO.2: All docwnents evidencing any inspection of the valve/pump from which product leaked causing the Incident in Question during the Relevant Time Period. 8 Filed 5/28/2015 2:38:12 PM Annie Rebecca Elliott District Clerk Fort Bend County, Texas Vanessa Vasquez CAUSE NO.lS-DCV-220330 DONALD R. COLLIER, JENNIFER J. § IN THE DISTRICT COURT COLLIER, DALE A. NIEMEYER, AND § WENDY NIEMEYER § Plaintiffs, § v. § FORT BEND COUNTY, TEXAS § CVR ENERGY, INC. AND § CVR REFINING, LP § Defendants § 268TH JUDICIAL DISTRICT DEFENDANTS CVR ENERGY, INC. AND CVR REFINING. LP'S ORIGINAL ANSWER TO THE HONORABLE COURT: COME NOW, Defendants CVR Energy, Inc. and CVR Refining, LP ("Defendants"), and tile their Original Answer, and would respectfully show the Court as follows: Pursuant to Tex. R. Civ. P. 92, Defendants generally deny the allegations contained in Plaintiffs' Original Petition and demand strict proof by a preponderance of the evidence of all Plaintiffs' allegations. II. AFFIRMATIVE DEFENSES The Kansas Workers Compensation Bar The applicable workers compensation bar under Kansas law, which governs the claims in this case, bars the claims in their entirety. Intervening cause The injuries sustained and damages alleged in this case were the result of an intervening cause not reasonably foreseeable to the Defendants. Superseding cause The injuries sustained and damages alleged in this case were the result of a new and independent superseding cause not reasonably foreseeable to the Defendants. Comparative responsibility The damages claimed in this case should be reduced, or are rendered not recoverable at all, by the comparative responsibility of the plaintiffs Donald Collier and Dale Niemeyer, their employer Coffeyville Resources Refining and Marketing, LLC, and their employer's contractors, subcontractors and suppliers. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants pray that Plaintiffs take nothing by way of this suit, that Plaintiffs' claims be dismissed with prejudice to refile same, and that Defendants receive any and all further relief to which they are entitled. Phillip D. Sharp / Texas State Bar sharp@mdwjl.""""-"w~---- 808 Travis Street, Suite 2000 Houston, Texas 77002 Telephone: (713) 632-1700 Facsimile: (713) 222-0101 ATTORNEYS FOR CVR 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 Civil Procedure, via fax and/or email on the 28th day of May, 2015, upon the following counsel of record: Gary M. Riebschlager Via e-mail: gary@riebschlagerlaw.com The Riebschlager Law Firm andfacsimile: 713-228-2210 80 I 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 andfacsimile: 281-341-1003 206 South Second Street Richmond, TX 77469 xxxxxxxxxxxxxxx -COMM. JOURNAL- xxxxxxxxxxxxxxxxxxx DATE MAY-28-2015 xxxxx TIME 15:37 xxxxxxx~ MODE = MEMORY TRANSMISSION START=MAY-28 15:34 END=MAY-28 15:37 FILE N0,;::599 STN COMM. STATION NAME/EMAIL ADDRESS/TELEPHONE NO. PAGES DURATION NO. 001 OK 5###9567132282210 004/004 00:01:13 002 OK n###9562813411003 004/004 00:00:41 -MDJW xxxxx KM-Fl060 ********************* _ - xxxxx - - ********* MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. ATTOR.'\'F:YS AT LAW Wiels 8p FACSIMILE TRANSl\USSION DATE: _ _....::S::.: I2i:!!8::..! /l~ S-'- - - - - - TO: Gary M. Ricbschl:ager Facsimile No.: 713-2Z8-Z210 The Ricbschlagcr Law Firm Richnrd L. Tate Facsimile No.: 281-341-1003 Kristin Rels Tate, 1\tocrcr & King. LLP FROl\1: _ _~P~hi~ll~ip~S~h~:a~ry~------------------------------ RE: Cause i'\o. 15-DCV-220330; Do11ald Collier, et al v. CVR Energy, Inc. , eta/.; In the 168 1 ~ Judicial District Court of Fort Bend County, Texas CLTENT/MA TIER: _ _-!1~ 92"-"7~ -0!.!!0~ 04:!... · ____ *RETURN TO: _...!:K ~~!.!. th~'w ' B !!:/'-1.!.... !. 7 _____ "MESSAGE: Please sec anached Origin~! Answer. No. of Pages Sent iucluding cover shect:.---'4"---- lf you had :my problems receiving this f~x transmission, or if you did not receiv~ th~ complel
CO~TACTCHERYLTHO~~TO~fORCHANG~S 8. a Corporation Service of Process Transmittal 05/18/2015-. cr.Log Nurriber 527144289 'to= John Walter CVR Enei'JY, Inc. 1oE Cambrtdge.·ctrcle Dr Ste 250 Kansas Cfcy;. KS 66103-1393 RE: Process Served in Texas FOR: CVR ~ei'BY, l_nc. (DomeStic State: DE) ENCLOSED ARE COPIES OF LEGAL PROCESS REcEIVED BY THE STATUTORY AGErn' OF THE ABGVI! COMPANY AS FOI.I.OVftk TITLE D_F:ACTIONt Donald R CoUter,.~t al., Pltfs. vs. CVR.Energy, Jnc. an.d CVRieftntng LP, Dfts. DOCUJI..-r(S) 8EilVJmf Citatlon1 Certfflcate. Petition; RequJ!St,. lns.tructfQns COURT/AGENCYr ·z68th Judidal, Dtstrtct Court Fort Bend Countv.,1 TX case #.15DCV220330 · · -· ' NATU~ OF ACTION& Plaintiff. sl)stafh damages· ~Lie tQ vl9latton ·of relatfonsh!p·of·CRMM and ·cVR ON WHOM PRGCEB8 WAS SERVED: C T Corporation Syst~m, Dallas, TX DATI! A~D HOU~ OP 8ERVII;I!i By Certified Mallon 05i18/.2015' postmarked: "Not Post Marked" .IURI8DicTION SERVED J Texas APf'.I!AIWtCI! a~ ~St!'ER DUEl By 10:0'0 a.m.· on the Monday next after the expiration of 20 days. A1TORiiEYC8) 18ENDER(S)a Gary M. Riebschtager The Riebschlager Law Firm PC 801 Congress Suite 250 Houston, TX 77002 2_81.-904~1404 ACTiON ITEMSt ·soP. Papers Wltb1i"ansmlttal, vta Fed Ex 2 .Day, 780681139525 Image SOP. Efmiil Nottflcation, ·John Walter jwalter®evrenergy.com Email Notfflcatic;)n, Allen ~nes .ajones®cvrenetgy.cqm Email· Notfffcatfon, Connie Fitzmaurice cfltzmauffce®CVREnergy.com 'SIGNEDt c T Corporation Syste~ ADDRESat 199.9 Bryan Street .Suite 900 Dallas, TX 75201 TELEPiiONEa 214-932·3~1 Page-1 of 1/~D~· lnformat1on dlspliyed on this t~nsmlttalls for q CoJ'lX)I'at1ol'\'s record ~'"!l P~:OiliY.~d Is_ p~de~- to the -rec~fent for .quick reference. 1fl1s Information does not canstlblte a tegal optftfon u to the nature. ofacttoni th.G amaunt of d~. the answer date; or. any ~ormadon contatned fn the dottl'nents themselves. Reclpfe"t Is ~ndtte for lnterpretln!J said dcatments and'for taking appropriate action; SIJI.latures Ol'! certified mall receipts confirm receipt af padcase artly, not contents• i------- CER71RED iviAJL ® ANNIE REBECCA ELLIOTT 1 ·. FORT BEND COUNTY DISTRICT CLERK 301 JACKSON : : .-: IIIII 1111111 I · '-j J RICHMOND, TX 77469 ) 9lf:L4 72bb 9904 295b 2259 2:L OFFIClALBUSINBss Pcnrlry tor Pnv.atc Use __ {..__.... , .. RETURN RECEIPT REQUESTED -~ ~ CVR ENERGY INC C/0 CT CORPORATION SYSTEM 1999 BBXAN ST. SUITE 900 ~ ~ 75201-3136 ·, :·(jl_jfllt,t ~frn!··,jn(,1{utl~lit• ;h.lll'ullliJLft ·.f···' ._________________ _j / SERVICE FEE COLLECTED BY 0\STR\CT CLERK THE STATE OF TEXAS CITATION TO: CVR ENERGY INC C/0 CT CORPORATION SYSTEM 1999 BRYAN ST. SUITE 900 DALLAS TX 75201-3136 NOTICE: You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on Monday next following the expiration of twenty days after you were served this citation and PLAINTIFF'S ORIGINAL PETITION filed on January 12, 2015, a default judgment may be taken against you. Said answer may be filed by mailing to the District Clerk's Office at 301 Jackson Street, Richmond, Texas 77469, or by bringing said answer to the physical address at 1422 Eugene Heimann Circle, Richmond, Texas 77469. We are located on the first floor of the Courthouse building. The case is presently pending before the 268TH JUDICIAL DISTRICT COURT of Fort Bend County sitting In Richmond, Texas, and was filed on January 12, 2015. It bears cause number 15-DCV-220330 and is styled: DONALD R COLLIER, JENNFIER J COLLIER, DALE A NEIMEYER AND WENDY NEIMEYER VS CVR ENERGY INC. AND CVR REFIINING, LP. The name and address of the attorney for PLAINTIFF Is: GARY M. RIEBSCHLAGER THE RIEBSCHLAGER LAW FIRM, PC 801 CONGRESS, SUITE 250 HOUSTON, TX 77002 713-980-5300 The nature of the demands of said PLAINTIFF is shown by a true and correct copy of the PLAINTIFF'S ORIGINAL PETITION accompanying this citation and made a part hereof. SERVICE , ' 15-DCV-220330 268th Judicial District Court Donald R Collier, Jennfier J Collier, Dale A Neimeyer and Wendy Neimeyer vs CVR Energy Inc. and CVR Refllnlng, LP. CERTIFICATE OF DELIVERY BY CERTIFIED MAIL Came to hand on the 8th day of April. 2015 at 4:39 P.M. o'clock and executed at 1999 BRYAN ST. SUITE 900 DALLAS TX 75201-3136, on the 14th day of May. 2015, by delivering to the within named CVR ENERGY INC. by registered or certified mail, with delivery restricted to addressee only, return receipt requested, a true copy of this citation together with the accompanying copy of the petition were attached thereto. Service Fee......... sso.oo CMRR# 9414 7266 9904 2956 2259 21 DISTRICT CLERK ANNIE REBECCA ELLIOTT Fort Bend County, Texas By:·--.....,.-..,......-..,....-.....,.....-~~~- Deputy District Clerk Jennifer E Melendez •state day and hour and place of serving each person. COMPLETE IF YOU ARE A PERSON OTHER THAN A SHERIFF. CONSTABLE. OR CLERK OF THE COURT. In accordance with Rule 107: The officer or authorized person who serves, or attempts to serve, a citation shall sign the return. The signature Is not required to be verified. If the return Is signed by a person other than a sheriff, constable, or the clerk of the court, the return shall be signed under penalty of pe~ury and contain the following statement: - - - - - - - - - - - • and my address is _ _ _ _~---=-=--~~--------- (Street, City, Zip) Executed i n - - - - - - - - - - - - - County, State of _ _ _ _ _ _ _ _ _ _ _ _ _ __. on~edaym ___________________ Declarant/ Authorized Process Server (ld # & expiration of certification) SERVICE ·,. . ,,~~:~~- .' Citation (By Certified Mail) issued to CVR Energy Inc. on 5/1412015. Tab 5 Filed 5/28/2015 2:38:12 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 COLLIER, DALE A. NIEMEYER, AND § WENDY NIEMEYER § Plaintiffs, § v. § FORT BEND COUNTY, TEXAS § CVR ENERGY, INC. AND § CVR REFINING, LP § Defendants § 2(;8TH JUDICIAL DISTRICT DEFENDANTS CVR ENERGY. INC. AND CVR REFINING. LP'S ORIGINAL ANSWER COME NOW, Defendants CVR Energy, Inc. and CVR Refining, LP ("Defendants"), and file their Original Answer, and would respectfully show the Court as follows: Pursuant to Tex. R. Civ. P. 92, Defendants generally deny the allegations contained in Plaintiffs' Original Petition and demand strict proof by a preponderance of the evidence of all The applicable workers compensation bar under Kansas law, which governs the claims in this case, bars the claims in their entirety. The injuries sustained and damages alleged in this case were the result of an intervening cause not reasonably foreseeable to the Defendants. Superseding cause The injuries sustained and damages alleged in this case were the result of a new and independent superseding cause not reasonably foreseeable to the Defendants. The damages claimed in this case should be reduced, or are rendered not recoverable at all, by the comparative responsibility of the plaintiffs Donald Collier and Dale Niemeyer, their employer Coffeyville Resources Refining and Marketing, LLC, and their employer's contractors, WHEREFORE, PREMISES CONSIDERED, Defendants pray that Plaintiffs take nothing by way of this suit, that Plaintiffs' claims be dismissed with prejudice to refile same, and that Defendants receive any and all further relief to which they are entitled. Phillip D. Sharp . Texas State Bar sharp@mdwjl w n 808 Travis Street, Suite 2000 Houston, Texas 77002 Telephone: (713) 632-1700 Facsimile: (713) 222-0101 ATTORNEYS FOR CVR 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 Civil Procedure, via fax and/or email on the 28th day of May, 2015, upon the following counsel of record: Gary M. Riebschlager Via e-mail: gary@riebschlagerlaw.com The Riebschlager Law Firm andfacsimile: 713-228-2210 80 I Congress, Suite 250 Houston, TX 77002 Richard L. Tate Via email: rltate@tate-Jaw.com Kristin Reis Via email: kreis@tate-law.com Tate, Moerer & King, LLP andfacsimile: 281-341-1003 206 South Second Street Richmond, TX 77469 1927-0004 1339195 xxxxxxxxxxxxxxt -COMM. JOURNAL- xxxxxxxxxxxxxxxxxxx DATE MAY-28-2015 xxxxx TIME 15:37 xxxxxxx~ MODE = MEMORY TRANSMISSION START=MAY-28 15:34 END=MAY-28 15:37 FILE N0.=599 STN COMM. STATION NAME/EMAIL ADDRESS/TELEPHONE NO. PAGES DURATION NO. 001 OK fi###9567132282210 004/004 00:01:13 002 OK 5###9562813411003 004/004 00:00:41 -MDJW xxxxx KM-F1060 xxtxxxxxxxxxxxxxxxxxx _ - xxxxx - - XXX'I:XXXXX MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. ATTOR..'-'EYS AT LA \II Niels Esperson Buildins SOS Trovis SL, ~o·• Floor Hou,wn. Tn:> 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 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 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 -1- 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 -2- 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 -3- Tab7 Filed 6/1/2015 4:56:03 PM Annie Rebecca Elliott District Clerk Fort Bend County, Texas Vanessa Vasquez 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 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 & This Memorandum will establish that: Defendants because the work-related accident occurred in Kansas and aJI witnesses to the 2. Kansas has jurisdiction and will exercise that jurisdiction over all of the 3. The balance of the private interests of the parties and the public interest ofTexas -I- clearly favor the claim being adjudicated in Kansas. 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. -2- 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) 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; (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. -3- (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. 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. 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) -5- 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. 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. 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. 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. -7- 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. 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 -8- 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. 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, -9- (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: (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.) 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 -13- 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 -1- 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 -3- Tab 8 Filed 8/4/2015 2:39:53 PM Annie Rebecca Elliott District Clerk Fort Bend County, Texas Sunset Romo 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 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. -1- 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. 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. 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 ). "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. 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. 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 -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; (e) the basic policies underlying the particular field of law; (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. 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: (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. 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. -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 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. 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 -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. 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 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 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 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 8. Marcus D. Grissom (Pumper-Biller-Loader) Coffeyville Resources Refining & Marketing, LLC 400 North Linden Street Coffeyville, KS 67337 (620) 251-4000 9. Tucker Hargis (Area 1 Lead Operator) Coffeyville Resources Refining & Marketing, LLC 400 North Linden Street Coffeyville, KS 67337 (620) 251-4000 10. Leonard W. Hawthorne (Pumper-Biller-Loader Lead Qualified) Coffeyville Resources Refining & Marketing, LLC 400 North Linden Street Coffeyville, KS 67337 (620) 251-4000 s 11. Josh Holt (Safety Specialist Tech ERT) Coffeyville Resources Refining & Marketing. LLC 400 North Unden Street Coffeyville. KS 67337 (620) 251-4000 12. Jerry Hockett (Board Operator Crude) Coffeyville Resources Refining & Marketing, LLC 400 North Linden Street Coffeyville. KS 67337 (620) 251-4000 13. Bob Hunt (Operator Waste Water) Coffeyville Resources Refining & Marketing. LLC 400 North Linden Street Coffeyville. KS 67337 (620) 251-4000 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 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 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 7 21. Dustin Martin (Operator 2 in Area 6) Coffeyville Resources Refining & Marketing, LLC 400 North Linden Street Coffeyville, KS 67337 (620) 251-4000 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 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 28. Randy Scott (Board Operator Crude) Coffeyville Resources Refining & Marketing, LLC 400 North Linden Street Coffeyville, KS 67337 (620) 251-4000 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 9 32. Mark Weber (Lead Operator HDS) Coffeyville Resources Refining & Marketing, LLC 400 North Linden Street Coffeyville, KS 67337 (620) 251-4000 33. Howard Webster (Operator 2) Coffeyville Resources Refining & Marketing, LLC 400 North Linden Street Coffeyville, KS 67337 (620) 251-4000 34. Terry Wlttum (Training SupeNisor) Coffeyville Resources Refining & Marketing, LLC 400 North Linden Street Coffeyville, KS 67337 (620) 251-4000 (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. (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 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: 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. 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). 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). 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. (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. 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. 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). (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; (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). 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. 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. 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. 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. 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 ' 32050595902 tl l 2014 I GQvernmentCode, to review, request and correct Information we have on filenbout you. Comact us ot 1-800-25)-138 1. cvWr REeFI IN I NG GIP LLC I. IRJ Check box If the mailing address has changed. c a76 ad~rAssx Secretary of State (SOSJ fife number or DE:PART[I.1ENT 2277 PLAZA DRIVE SUITE 500 City SUGAR LAND IState TX ~~ ZIP Code 77479 I Plus 4 Comptroller file number 801761114 0 Check box if there are currently no changes from previous year; if no info,matlon is displayed, complete the applicable information In Sections A, Band C. Principal office 2277 PLAZA DRIVE SUITE 500 , SUGAR LAND TX 77479 IIPrinc!J?al place of business 2217 PLAZA DRIVE SUITE 500 SUGAR LAND TX 77479 , J .I~ Officer, director and manager information is reported as of the date a Public Information /tPTe J/fH &1!/IIV/ Report Is completed. The information is updated annually as part of the franchise tax P - - report. There is no requirement or procedure for supplementing the Information as offJCers, directors, or managers change throughout the year. SECTION A Name, title and mailing address of each officer, director or manager. NJ:nc Title m d y y I d m _rlrector PRE:_SIDE~--- (XI, _~_ YES Term JOHN J, LIPINSKI g o & expiration - -- Mailing addrc_s_s --~~ - - --- C1ty State IZIP Code 2277 PLAZA DRIVE SUITE 500 SUGAR LAND TX 77479 Name Title Director m m d d y y ST.P.NLEY A. RIEMANN coo Ill YES Term expiration I Mailing address 2-277 PLAZA DRIVS SUITE 5_00 City SUGAR LAND State TX I77479 ZIP Code Name Title Dire<:tor m m d d y y SEE ATTACHED LISTING 0 YES Term expiration / Mailing address Gty State I ZIP Code SECTION 8 Enter the information required for each corporation or LLC, if any, In which this entity owns an interest of 10 percent or more. Nam~ or owned (subsidiary) corporation or limited liability company State of formation Texas SOS nle numb~r. if any Percentage of ownership N/A Name of owned (subsidiary) corporation or limited liability company State of formation Texas 505 ~le number, if any Percentage of ownership SECTION C Enter the information required for each corporation or LLC, if any, that owns an interest of 10 percent or more in this entity or limited liability company. Name of owned (parent) corporation or limited liability company CVR REFINING HOLDINGS LLC o "E' offormation I Texas 505 nle number, If any J Pcrcentage of ownershi p ! 100.00 Registered agent and registered office currently on file {see instructions if you need to mak"'hanger) Check box if you need forms to change Agent: CORPORATION SERVICE COMPANY 0the registered agent or registered office inform~tion. City office: 211 E . 7TH STREET SUITE 620 / AUSTIN State TX I \ ZIP Code 78701 The above Information is required by Section 171.203 of the Tax Code for each corporation or limited liability company that files a Texas Franchise Tax Report. Use additional sheets far Sections A, B, and C. If necessary. The information will be available far public Inspection. nt and any attachments Is true and correct to the best of my knowledge and belief, as of the date below, a~d that a copy ofth\s report has rc - - who a ~ticer, dire<: tor or manager and who is no1 currently employed by this, or a related, corporation or limited liability company. _ _ Texas Comptroller ·Offidai.Us~:o!ltY- 1 vEtoE lo1 PIRIND 0 1 ~111 1111~ EXHIB·IT l ~ p1 00022249880 TEXAS FRANCHISE TAX PUBLIC INFORMATION REPORT CVR REFINING GP. LLC SECTION A. NAME I ITITLE I I DIRECTOR SUSAN M. BALL ICFOITREASURER I lYES MAILING ADDRESS I 2277 PLAZA DRIVE. STE. 500. SUGAR LAND. TX 77479 NAME J LTITLE I I DIRECTOR EDMUND S. GROSS ISECRETARY/SVP/GENERALCOUNSEL J lYES MAILING ADDRESS I 2277 PLAZA DRIVE, STE. 500, SUGAR LAND. TX 77479 NAME j LTITLE J I DIRECTOR ROBERT W. HAUGEN IEXECUTIVE VICE PRESIDENT J _lYES MAILING ADDRESS j 2277 PLAZA DRIVE, STE. 500, SUGAR LAND, TX 77479 NAME I ITITLE I I DIRECTOR WYATT E. JERNIGAN IEXECUTIVE VICE PRESIDENT 1 JYES MAILING ADDRESS _I 2277 PLAZA DRIVE, STE. 500__, SUGAR LAND. TX 77479 NAME I LTITLE I I DIRECTOR DAVID L. LANDRETH !SENIOR VICE PRESIDENT I IYES MAILING ADDRESS _I 2277 PLAZA DRIVE. STE 500, SUGAR LAND, TX 77479 NAME I LTJTLE J I DIRECTOR NATHANL.POUNDSTONE LCAO/ASST. VICE PRESIDENT l lYES MAILING ADDRESS J 2277 PLAZA DRIVE, STE. 50Q_,_ SUGAR LAND. TX 77479 NAME I ITITLE I I DIRECTOR MICHAEL R. BROOKS ICIONICE PRESIDENT I IYES MAILING ADDRESS I 2277 PLAZA DRIVE, STE. 500, SUGAR LAND, TX 77479 NAME J ITITLE I L DIRECTOR JOHN R. WALTER IVICE PRESIDENT J lYES MAILING ADDRESS I 2277 PLAZA DRIVE, STE. 500, SUGAR LAND, TX 77479 NAME I ITITLE I I DIRECTOR ANGELAJ.DASBACH IVICE PRESIDENT I lYES MAILING ADDRESS I 2277 PLAZA DRIVE, STE 500, SUGAR LAND, TX 77479 NAME I [TITLE I I DIRECTOR GINA BOWMAN (VICE PRESIDENT I (YES MAILING ADDRESS I 2277 PLAZA DRIVE, STE. 500, SUGAR LAND, TX 77479 P2 00022249880 NAME J ITITLE I I DIRECTOR CARL C. ICAHN ICHAIRMAN I X IYES MAILING ADDRESS I C/0 CVR REFINING GP, LLC., 2277 PLAZA DRIVE, STE, 500, SUGAR LAND, TX 77479 NAME I ITITLE I I DIRECTOR SUNGHWAN CHO IDIRECTOR I X _IYES MAILING ADDRESS I C/0 CVR REFINING GP, LLC., 2277 PLAZA DRIVE, STE, 500, SUGAR LAND, TX 77479 NAME J ITITLE I I DIRECTOR ANDREW ROBERTO )DIRECTOR ~I X )YES MAILING ADDRESS .I C/0 CVR REFINING GP, LLC., 2277 PLAZA DRIVE, STE, 500, SUGAR LAND, TX 77479 ADDRESS?? NAME J ITITLE J I DIRECTOR VINCENT J. INTRIERI IDIRECTOR I X )YES MAILING ADDRESS I C/0 CVR REFINING GP, LLC., 2277 PLAZA DRIVE, STE, 500, SUGAR LAND, TX 77479 NAME J ITITLE I I DIRECTOR SAMUEL MERKSAMER IDIRECTOR I X IYES MAILING ADDRESS I C/0 CVR REFINING GP, LLC., 22n PLAZA DRIVE, STE, 500, SUGAR LAND, TX 77479 NAME I ITITLE I I DIRECTOR DANIEL A. NINIVAGGI IDIRECTOR I X IYES MAILING ADDRESS J C/0 CVR REFINING GP, LLC., 227TPL/JZA DRIVE, STE, 500, SUGAR LAND, TX 77479 ' NAME I ITITLE I I DIRECTOR KENNETH SHEA I DIRECTOR J X 1YES MAILING ADDRESS I C/0 CVR REFINING GP, LLC., 2277 PLAZA DRIVE, STE, 500, SUGAR LAND, TX 77479 NAME J LTITLE I I DIRECTOR JON R. WHITNEY IDIRECTOR I X IYES MAILING ADDRESS j C/0 CVR REFINING GP, LLC., 22n PLAZA DRIVE, STE, 500, SUGAR LAND, TX 77479 NAME _I ITITLE I I DIRECTOR GLENN R. ZANDER )DIRECTOR I X IYES MAILING ADDRESS I C/0 CVR REFINING GP, LLC., 22n PLAZA DRIVE, STE, 500, SUGAR LAND, TX 77479 NAME I ITITLE I I DIRECTOR KEITH D. OSBORN IEXECUTIVE VICE PRESIDENT I tYES MAILING ADDRESS I 2277 PLAZA DRIVE, STE. 500, SUGAR LAND. TX 77479 NAME I ITITLE I I DIRECTOR R. WILLIAM WUENSCHE ISENIOR VICE PRESIDENT I _I YES MAILING ADDRESS I 2277 PLAZA DRIVE, STE. 500, SUGAR LAND, TX 77479 P3 00022249880 NAME 1 ITITLE I I DIRECTOR PATRICK J. QUINN ISENIOR VICE PRESIDENT I I YES MAILING ADDRESS [ 2277 PLAZA DRIVE, SUITE 500, SUGAR LAND, TX 77479 NAME I ITITLE I I DIRECTOR CARL FINDLEY IVICE PRESIDENT r IYES MAILING ADDRESS I 22n PLAZA DRIVE, SUITE 500, SUGAR LAND, TX 77479 NAME I ITITLE I I DIRECTOR WESHARRIS IVICE PRESIDENT I IYES MAILING ADDRESS I 2277 PLAZA DRIVE, SUITE 500, SUGAR LAND. TX 77479 NAME I ITITLE I I DIRECTOR RHONDA SPEER IVICE PRESIDENT I IYES MAILING ADDRESS I 2277 PLAZA DRIVE, STE 500, SUGAR LAND, TX 77479 NAME I ITITLE I -I DIRECTOR PATRICK QUINN ISENIOR VICE PRESIDENT I .IYES MAILING ADDRESS I 2277 PLAZA DRIVE, STE 500, SUGAR LAND, TX 77479 P4 I'G1111301 ~~romaoun. FZLED (lkMied 1111) In the Office of the bum hl dup1icatc to: Secretar,r of state of Texas Sel:mfaly ofState P.O. Box 13697 JUN 2 82007 AuldD, TX ?1'111·3697 Applleatlml for 512 463-5555 Becl*deD of. Corporations Section PAX: 512146!-5709 Forelp l'01'-Pn8t 111111 Fee: $750 C onUoa cvaa.u.• . 2A. 1'hD mme of 1be c:capcatiG1l in fts jurildJcdcD ot fixmatfm cJa not coa1liD tbe wcmt "colpcultloa... "CCIDJIWI4Y," ~· ar "~~~~after (or ID ab1nYJadcll dlereof). The 1111110 of'tbe COipOl'BtioD wi1b die word or abbnMatiGo that it elecls to .dd fbr \1le mTeua is: 3. Ita fedaal·cmployer idatjftC'doa JI1IIDber il: ..-s.... -~_w_u ___________ D Pedaml employer idmtlftcwdoll JIUIIIber iJdbmladoa is DOt milable at IJda time. 4. It fi~Dco~poaded ader1be lawlof c-rn.-• ...._.oaatl7) _Dela........._W~~e.-..__ _ _ _ _ __ IDd the datoofitllixmatloa hl1hatjuli8dlctlaa fa: ...., ~~~-~~25.=21~00~16-~,......----- . 5. As of tbe date Of f11iDa, tbe 1DII1mlpecl cedi&elthlt die fcnip CQl)JOIIIIlGA cmreatly aiatl as a "ff1id cmpilldoo UDder 1!le Jawa of1ha jadldiclkm ofits~ 6. The JMIIPOIO or purj,osc. oftbo corporatfon 1hat it POJM*I to pauo in the tnmsactlon ofbaliDcu fD Taas aro Mt fai01 below. 'I1Io OCIIpOrltiab a11o Cldlflel dllt it II czdwhwl to pursue such llaled papoee Clr JQPC*1 fa the SID or COUidry . - whfch it is iacoqaalecL BoldiDa Compmy TX USA T/419 Poma30J ~-,...c:r._.cw. REOI!I\I!b. JUN 281001. Secretary of State PS a....,JifaatA•fB,llalaa&WL ~-JC. D 9A.. TbD iDitial&egistered apm ia an orpd?Bticm (CIUIDCt be ati1y DIDlld above) by the ll8llle of. era Cl 9B. The iDitia1 nslllel'ed lpDt flm iDdivi4ul1 resident ofthe Slate whose aame is: m 9C. The builD• addlea of1be reptac4 1p11t amt tbe nptere4 olllc»a&hess is: 350M. SL Paul Sbat D11Jaa 1X '75201 sm& & - $& 10. The eotporadoll hereby appoinls fllo SocRtary of State of Texas u ita apm for ICI'Yico of pocess UDder tim c:iJeWilltaceiiCII forth ID secdGD5.251 ofdle Tms a.m.. ()ralldzatioJII Code. 11. TboDIIIDD aud eck1reu of each peDOR oa tho boald of diJcctoD is: ~r.~ .. FaaaJOJ ' ---·-----·--- --· -- P6 A. (g) This dno!!']:lt':lrtbecomcs eflOciivewbeu the doorment iiJ filed by1hc ~ ofltllte. B. 0 'Ibis docum.errt become~ of&ctfvo at a l$r date, which u oot more than ~ (90) d=yl from the dine of liplzl&. l'he delayed effectivo date 18: C. 0 This document tDJa:e ~ upon.1h8 ()()CUil'CilDC of a fiiiarc CYent or fbct, other 1hmi the piiU8IC of time. The 9(/4 day after the date of JisniDg ia: The followina" c-mrt or fact will CIIUie 1he docamont b) tnko affect in 1ho ml!lll1lf described beLow: 'lb8 ~-alp 1h!J doc:nmmt ~to 1he peaaltiellmpoled by law tbr the submiakm of a aJih!riaDy aka or fi:lucfukmt inatrumcm. ·· ···ulr- tl/!-.~~ ....1 cf . . -vu' ~ md. ti!Sa of&lllborizod penoa on behalf oltbo faraip • rllltlty F"""lOI 7 DI*IUOC·~CT-~ - - - -·-- -- - ----- - - - - - P? Name: JoJm I. Upbt•ld, Cbabmm of the Boaa1 ofD&eclan. ChiofBxecmive Ofllcer aad Pleli4eat c/o CVR Emqy, lDo. rn7PlaaDdve, Suite 500 City, State. Zip: Supr Lad, TCXII T1479 Name: Staley A. RJ""""'\ Chief()paatins Ofllcer Addreu: do CVR.Baqy. IDe. 22T1 PlaaDlive, SUite 500 City, Stale, Zip: Svaar LamJ; T11111 n479 Name: Iamea T. ~leu. ChlefVmaudal Ofticer md Ttealmer Addlas: c/oCY.R.BDeraJ,b. 2277 PluaDdve, Suite 500 Sualr Lad, T1111 T/479 NIIDO: :Bdanmd S. Oroa, Vice Plelldcat, Oeurll CouDse1 adSecntuy Address: e/o CVB. Emqy, IDe. 2277 Plaza Drive, Suite 500 City, Stl&a, Zip: Supr Lad, Teas 77479 Name: ltobert W. Hqea. Bucutive Vice PrEdellt, lefiDIDS OpemtiOIVl Addlea: e/o CVR Baqy, me. 22TI PlaaDriw. Suite500 ~.State, Zip: Sualr LIDd, Tea& '71479 Name: ICmmA. Viet, Buoutive ViooPnlidcat, Gcmara1 Msaapr N"Jtrop Pedili= Acfdrea8: r:/o CVRBDtqy, IDe. 2277 Plaza Drive, Suite 500 aty, State, Zip: Supr LaDd. Tau 774'PJ Chrlstoplu:r G. Swaaber& Vfco Preaiclellt, ~.Health and Safety . do CVR.Paergy, lDo. 2271 Plaza Dlive. Suite 500 SuprLIDd, Taa77479 Name: Wesley a.k.Director Addreb: c/o CVR.Baqy. lao. 22"17 Plaza Drive, Suite 500 aty, State, Zip: Sapr Lad. Teua 71479 Name: ScoULcboft1z. DJreclor Addnsl: c/o CVB. J!Dersy, IIIC. 2rr1 Plaza Dtift, Suite 500 PB City, State, Zip: Supr LaDd, Tezaa17479 Name: 1tesfs B. Lippcrt,Dilector AddreE rJo CVR Bmqy, b. 2271 Plaza Drive, Suite 500 City. State, Zip: Supr Lmt, T. . 71479 Name: George B. Mate1ich, Director .Adclr1K do CYll BDcrsY. IDe. 21:17 P1lza Drive, Sul1o 500 City, Slate, Zip: Sapr Lad, Taas 77479 Nae: Staldey de J. Oabome. Dhector AddEeu: c/o CVlt.!Dqy,lilc. 2271 PIIZI Drive, Suite 500 City, State, Zip: Supr I..aDd, Taas77479 Name: Kenneth~ Pcmtare16. Director Acldrea: c/o CVll J!Deqy.Iuo. 2277 Plaza Drive, Suite 500 City, Stile, Zip: Supr Land, Tau 7747f Name: Mad: Tomtial, Dbctar .Addmm: c/o CVR Eaars1,1aa. 2271 Plaza Drive, Suite 500 Qty, State. Zip: Sapr Lllld, Texu 71479 ---------·----------------~·--- ------~-·· pg Form306 This space reserved for office use. (Revised OS/11) Submit in duplicate to: Secretary of State FILED P.O. Box 13697 ~:; Ollfca of the of State of Texas Austin, TX.78711 ..3697 Application for 512 463-SSSS. Registration · .. APR 12 2013 F).U{:512/463-5709 of a Foreign Limited Filing Fee: $750 Partnershi · Corporations Section 1. The entity is a foreign limited partnership. The name of the entity is: CVR Refinjng, LP ....· Provide thefulllBgal name of/Irs entity tl8 slaltd in the entity's formation document in itsjurisdiction offormtlf/(m: 2A. The name of the entity in its jurisdiction of formation does not contain the word "limited partnership, or "limited" (or an abbreviation thereof). The name of the entity with the word or abbreviation that it elects to add for use in Texas is: 2B. The entity name is not available in Texas. The assumed natne undet· which the entity will qualify and transact business in Texas is: Tile assrmred name must include an acceptable organizational identifier or nn accepted abbreviation ofom~ ofthese terms. 3. Its federal employer identification number is: ....;3~7_;;-1;;..:.7..;.;02;;...4.;;..:;6.::..3- - - - - - - - - - - - 0 Federal employer identification number information is not available at this time. 4. It is organized under the laws of: (set forlh state or foreign countty) Delaware ------------------------ and the date of its formation in that jurisdiction is: _0...;.9.;...t1;;..;;7~/2;;..;;0....;.12_ _ ____,.~------- ~ nrmldi&J.w S. As of the date of filing, the undersigned certifies that the foreign limited partnership currently exists as a valid lintited partnership under the laws of the jurisdiction of its fonnation. 6. The date on which. the foreign. entity intends to transact business in Texas, or the date on which the foreign entity first transacted business in Texas is: 01/23/2013 ~~~~~~----~------~------ mm/1~ Lmefeea mQ)' apply (see /nslntctlons). 7. The principal office address of the limited partnership is: 2277 Plaza Drive, Suite 500 Sugar Land TX USA 77479 A.ddress City State Country Zip/Postal Code · Complete item SA or BB, but not bo1h. Complete item 8C. fgl 8A. The initial registered agent is an organization (~ot bcs ~ti~ named abo~e) by the name ~f: . Corporation Setvice Company d/b/a CSC-Lawyers Incorporating Service Company ·. · ~ ,. •· • r•, •• • •• ., • ••"• ·.: I I, OR . Jllii ,,.. ,~ •• ; • t1 r· •1 ' · 0 · 8B. The initial registered agent is an individual resident of the -state whose nmne is: · ' • · ',it,V••\.!~ b •ji ~· c. 'al HlJt •• .. .. .. .. . . .. .. . .. - . .. . . . .,;.·. .. .. .. , .... ~ First Name Fon'n306 M.l. 6 LastNan~e o • o ·..-. . .. M -~ifft:x. ~ 0 .. f : ,\ P10 8C. The business addt·ess of the registered agent and·the registered office address is: 211 B. 7th Street, Suite 620 ... Austin TX 78701-3218 Street Add1-eR City State Zip Code 9. The entity hereby appoints the Secretary of State ofTexas as its agent for service of process under- the circumstances set forth in section 5.251 of the Texas Business Organizations Code. 10. Governing Pe.rso~: The name and address of each general partner is: NAME .AND ADDRESS OF GENERAL PARTNER (Enter lhc oamoofeithcr an individual or 8ll organ&atfoo, but not botb.l 1P INDIVIDUAL · Firat Name J,f.l. !4stName Sujft.x OR nr ORGANIZATION CVR Refining GP, LLC OrganlzatloiJ Nams ' 2277 Plaza Drive, Suite 500 Sugar Land TX USA· 77479 Street or Mailing AddJ"eSS City State Country Zip Corle NAME AND ADDRESS OF GENERAL PAR.TNER (Enter tbonamo ofeither an mdMdual or an omanizatlou, but not botb.J lPJNDMDUAL FirstNams MJ. · LtutNanze Sujjix OR IF ORGANIZATION Organization Nama Street or Mailing Atldl'esa Ci/JI Slate Comrtr:Y Zip Code NAME AND ADDRESS OF GENERAL PARTNER (Eaterthcrnamo ofcilbcran blividual o1· an organization, but not both.) IF INDIVIDUAL ... First Name M.L Last Name Stdfix OR IF O~GANIZA.TION Organlzntlon. Name . · Street or Malli11g Add,.ess City State Cortntf.JI Zip Code Supplemental Provisions/Information Text Area: _IThe attachea addendum. if any, Js hicorpor8.tcd herein by referenceJ Form306 7 P11 Effectiveness of F~ing (Select either A, B, or C.) A. IZJ Thls document becomes e.ffectiv~ when the document is fi'led by the secretary of state. B. D This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed effective date is: C. 0 This document takes effect upon the occurrence of a future event or fact, other than the Ipassage of time. The 90111 day after the date of signing is: The following event or fact will cause the document to take effect in the manner described below: Execution The undersigned affinns that the person designated as registered agent has consented· to the appointment. The undersigned signs this d~cument subject to the penalties imposed by law for the submission of a materially false or fraudulent insb.ument and certifies under penalty of perjury that the . undersigned is authorized under the provisions of law governing the entity to execute the filing instrument. · Date: 3/ I ~/2013 CVR Refming, LP By: CVR Refining GP t LLC By: Edmund S. Gross, SVP, General Counsel and Secretary Printed cr typed name ofauthorized person. ··. Fonn306 •8 P12 Form401-A (Revised 12/09) Acceptance of Appointment and Consent to Serve as Registered Agent §5.201(b) Business Organizations Code The following fonn may be used when the person designated as registered agent in a registered agent filing is an individual. · AcC§ptance of Appointment and Consent to Serve as Registered Agent I acknowledge, accept and consent to my designation or appointment as registered agent in Texas for . Name ojrepressnted entity I am a resident of the state and understand that it will be my responsibility to receive any process, notice, or demand that is served on me as the registered agent of the represented entity; to forward such to the represented entity; and to immediately notify the represented entity and submit a statement of resignation to the Secretary of State ifl resign. x: SJgnat11re ofnglst.ml ogent Printed name ofreglslertd ogcnt DDie (mmltld/yyyy) The following form may be used when the person designated as registered agent in a registered agent filing is an organization. Acceptance ofAppointment and Consent to Serve as Registered Agent I am authorized to act on behalf of Co1poration Service Company d/b/a CSC-Lawyers Incorporating Service Comp y Name oforgani-zation dMignated as registered agent The organization is registered or otherwise authorized to do business in Texas. The organization acknowledges, accepts and consents to its appointment or designation as registered agent in Texas for: CVR REFINING, LP Namfl ofrepre1ented entity The organization takes responsibility to receive any process, notice, or demand that is served on the organization as the registered agent of the represented entity; to forward such to the represented entity; and to. immediately notify the e ed entity and submit a statement of resignation to the Secretary of State if the or anization ~ tgns. Brian Courtney. Asst. Vice President 04/1'2/2013 Dat1(mml~) Form40l·A 3 P13 Limited Partnership Annual Report 1, Partnership Name: CVRREFINING, LP 2. Business Entity ID No.: 4708566 3. 'Dlx CloslngDaCe: December 2014 4. State of Organization: DE s. omdal MaJilniAddi'CSJ: T.<\XDIREC'l'OR, 10 E. CAMBRIDGE CIRCLE DR. ST£.250, KANSAS 01Y KS 66103 ElectroDJc File Stamp 6. Partners wbo own 5% or more ol capital (Kausas LPa only): Informatlon: 7. Does this partnenbJp own or lease I11Dd Jn Kansaa suitable for usc In agrlcul&urc? No Filed Federal Employer ldendncadon Number (FEIN): 0000000000 • Date: 03/20/2015 1 declare under penalty orperjuey pursuant co the laws orthe slate ot Kansaa that the CoregolDg b true and correct. 11 11 • T~: 03:04:17 PM Executed on Man:h 10 2015 S.linature or General Partner: Susan M. BaD ~~ Pl Limited Partnership Annual Report 1. Partnership Name: CVR REFINING, LP 2. Buslneu .Enti~J ID No.: 4708566 3. Tax Ooslng Date: December 1013 4. Sblte of Organbatlont DE 5. OIDeJal Malilaa Address! TAX DIRECTOR. 10 E. CAMBRIDGE cm.a.E DR. STE.lSO, KANSAS 01Y KS 66103 Electronic Flle Stamp 6. Partners who own 5% or more of capital (Kansas LPs only): Information: 1. Does this parmenbJp own or lease land 1D Kansas suitable for use In agriculture? No Flled Federal Employer IdendJlcadon Number (FEIN}: 0000000000 • Date: 03131/2014 "1 decl11re under penalty of perjury pursuant to the laws of tbe state of Kansas that the foregoing Is true and correct." • Tmc: 04:02:4& PM Executed on March 31 2014 Slpature of General Partner: Susan M. BaU Contact phone number: 913·982-0500 .£-mall: ebarry@cvrenergy.com Signature of General Partner! Contact phone number: E-maU: P2 Definitiv~ Proxy Statement Page 3 of83 Table of Contents April30, 2015 To the Stockholders of CVR Energy, Inc.: You are cordially invited to attend. the 2015 Annual Meeting of Stockholders ofCVR Energy, Inc., on June 17,2015 at 10:00 a.m. (Central Time) at 2245 Texas Drive, Suite 300, Sugar Land, Texas 77479. At the Annual Meeting, we will ask you to (1) elect nine directors, (2) ratifY the appointment of Grant Thornton LLP, an independent registered public accounting firm, as our independent auditors for the fiscal year ending December 31, 2015, (3) consider au advisory vote on the compensation of our named executive officers, and (4) take action upon any other business that may properly come before the Annual Meeting. We have elected to take advantage of the nlles of the U.S. Securities and Exchange Commission that aJJow us to furnish our proxy materials over the Internet. As a result, we are mailing a Notice of Internet Availability of Proxy Materials (the "Notice"), rather than a full paper set of the proxy materials, unless you previously requested to receive printed copies. The Notice contains details regarding the date, time and location of the meeting and the business to be conducted, as well as instructions on how to access our proxy materials on the Internet and instructions on how to obtain a paper copy of the proxy materials. This process will substantially reduce the costs associated with printing and distributing our proxy materials. Whether or not you are able to attend, it is important that your shares be represented at the meeting. You can vote your proxy by telephone by following the instructions on the Notice. Alternatively, you may complete, sign, date and return the proxy card included in our proxy materials at your earliest convenience. If you attend the meeting, you may revoke your proxy, if you wish, and vote personally. As the representation of stockholders at the meeting is very important, we thank you in advance for your participation. Sincerely yours, ~ John 1. Lipinski Chief Executive Officer and President https://www.sec.gov/Archives/edgar/data/1376139/0001193125151 59173/d900352ddefl4... 6/15/2015 Pl Definitive Proxy Statement Page4 of83 CVR ENERGY, INC. 1277 Plaza Drive, Suite 500 Sugar Land, Texas 77479 (181) 107-3100 www.cvrenergy.com NOTICE OF 2015 ANNUAL MEETING OF STOCKHOLDERS NOTICE IS HEREBY GIVEN that the 2015 AnnuaJ Meeting (the "Annual Meeting") of Stockholders ofCVR Energy, Inc. ("CVREnergy") will be held on June 17,2015 at 10:00 a.m. (Central Time), at 2245 Texas Drive, Suite 300, Sugar Land, Texas 77479, to consider and vote upon the following matters: 1. Election of nine directors, each to serve a one-year term expiring upon the 2016 Annual Meeting of Stockholders or until his successor has been duly elected and qualified; 2. A proposal to ratify the Audit Committee's selection of Grant Thornton LLP as CVREnergy's independent registered public accounting finn for the ftScal year ending December 31, 2015, which we refer to as the "auditor ratification proposal"; 3. A non-binding proposal to approve, on an advisory basis, the compensation ofCVR Energy's named executive officers, which we refer to as the "say-on-pay proposal"; and 4. Transaction of such other business as may properly come before the meeting or any adjournments or postponements thereof. Only stockholders of record as of the close ofbusiness on April20, 2015 will be entitled to notice of, and to vote at, the Annual Meeting and any adjournments or postponements thereof. A list of stockholders entitled to vote at the meeting will be available for inspection during normal business hours beginning June 5, 2015 at CVR Energy's offices at 2277 Plaza Drive, Suite 500, Sugar Land, Texas 77479. You can vote your proxy by telephone by following the instructions on the Notice. Alternatively, you may complete, sign, date and return the proxy card included in our proxy materials at your earliest convenience. If you attend the meeting in person, you may vote your shares of common stock at the meeting, even ifyou have previously sent in your proxy. YOUR VOTE IS VERY IMPORTANT. EVEN IF YOU PLAN TO ATTEND THE ANNUAL MEETING, WE REQUEST THAT YOU READ THE PROXY STATEMENT AND VOTE EITHER (I) BY TELEPHONE BY FOLLOWING THE INSTRUCTIONS PROVIDED ON THE NOTICE OR (II) BY SIGNING, DATING AND RETURNING THE PROXY CARD INCLUDED IN OUR PROXY MATERIALS. IMPORTANT INFORMATION REGARDING THE AVAILABILITY OF PROXY MATERIALS Our Proxy Statement and the CVR Energy 2014 Annual Report (our uAnnual Report"), which includes our Annual Report on Form 10-K for the year ended December 31,2014 and fmancial statements, are available at http://annualreport.cvrenergy.com. By Order of the Board of Directors, ~r;J~ John R. Walter Senior Vice President, General Counsel and Secretary Sugar Land, Texas April30, 2015 If you vote by telephone, you do not need to return your proxy card. https://www.sec.gov/Archives/edgar/data/1376139/000 119312515159173/d900352ddef14... 6/15/2015 P2 Table of Contents UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 10-Q (Mark One) ~ 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 0 TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF1934 For the transition period from to Commission flle number: 001-35781 CVR Refining, LP (E.tactlltrme ofreglllrunt as specfjl~ In 1111 cha11e,.) Delaware XX-XXXXXXX (State or otherjurisdiction of (J.R.S. Emplo.ve1· incorporation or organization) Identification No.) 2177 Plaza Drive, Suite 500 Sugar Land, Texas 77479 (Address ofprincipal execurive offices) (Zip Code) (181) 107·3100 (Registrant~ telephone n11mber, including area code) Indicate by check mark whether the registrant (I) has filed all reports required to be filed by Section 13 or I S(d) ofthe Securities Exchange Act ofl934 during tbe 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 past90 days. Yes el No [J Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 ofRegulation 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 tiles). Yes I!ZI No [J Indicate by check made whether the registrant is a large accelerated filer, an accelerated tiler, a non-accelerated filer, or a smaller reporting company. See the definitions of"large accelerated filer," ••accelerated filer" and ••smaller reporting company" in Rule 12b·2 of the Exchange Act. Large accelerated filer 0 Accelerated filer [J Non-accelerated filer I!ZI Smaller reporting company [J (Do not check if smaller reporting contpany.) Indicate by check mark whether the registrant is a shell company (as defined by Rule 12b-2 ofthe Exchange Act). Yes [J No I!ZI There were 147,600,000 common units outstanding at October 28, 2014. ----------------------------·---·--------------------------- I E Pl Table ofConrep!s CVR REFINING, LP AND SUBSIDIARIES NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued) September 30, 2014 (unaudited) Titc price CRNF pays pursuant to the pet coke s11pply agreement is based on the lesser ofa pet coke price derived from the price received for urea ammonium nittatc (''UAN''), or the UAN-based price, and a pel coke price index. The UAN-based price begins with a pet coke price of$2S per ton based on a price per ton for UAN (exclusive oftransportation cost), or netback price, ofS20S per ton, and adjusts up or down $0.50 per ton for every S 1.00 change in the netback price. The UAN-based price has a ceiling of$40 per ton and a floorof$S per ton. CRNF pays any taxes associated with the sale, purchase, transportation, delivery, storage or consumption of the pet coke. Amounts payable under the feedstock and shared services agreements can be offi;et with any amount receivable for pet coke. The agreement has an initial term of20 years and will be automatically extended for successive five year renewal periods. Either party may tenuinate the agreement by giving notice no later than three years prior to a renewal date. The agreement is also terminable by mutual consent of the parties or ifa party breaches the agreement and does not cure within applicable cure periods. Additionally, the agreement may be temtinated ill some circumstances if substantially all ofthe operations at the nitrogen fertilizer plant or the Coffeyville. Kansas refinery are peananently terminated, or if either party is subject to a bankruptcy proceeding or otherwise becomes insolvent. Net sales associated with the transfer of pet coke from CRRM to CRNF were approximately S1.9 1nillion and $1.7 million for the three months ended September 30,2014 and 2013, respectively. Net sales associated with the transfer ofpel coke fiom CRRM to CRNF were approximately S6.5 million and $7.0 million for the nine months ended September 30, 2014 ODd 2013. respectively. Receivables of approximately $0.1 million and $0.6 million related to the coke supply agrecmcn l were included in accounts receivable on the Condensed Con so lidatcd Balance Sheets at September 30, 2014 and December 31, 2013, respectively. Environmental Agreement CRRM entered into an environmental agreement with CRNF wbich provides for certain indemnification and access rights in connection with environmental matters affecting the Coffeyville, Kansas refine!}' and the nitrogen fertilizer plant. Generally, both CRRM and CRNF have agreed to indemnify and defend each other and each other's affiliates against liabilities associated with certain hazardous materials and violalions ofenvironn1cntal laws that are a result ofor caused by the indemnifying party's actions or business operations. This obligation extends to indemnification for liabilities arising out ofoff-site disposal ofcertain hazardous materials. Indemnification obligations of the parties will be reduced by applicable amounts recovered by an indemnified party from third parties or from insurance coverage. The agreement provides for indemnification in I he case ofcontamination or releases ofhazardous materials that were present but unknown at the time the agreement was entered into to the extent such contamination or releases were idenlificd in reasonable detail through October 2012. The agreement further provides for indemnification in the case of contamination or releases which occur subsequent to the execution ofthe agreement. The term ofthe agreement is for at least 20 years, or for so long as the feedstock and shared services agreement is in force, whichever is longer. 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 ofils 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 sball 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 regulalory affairs; P2 Tah!c ofContenl:s CVR REFINING, LP AND SUBSIDIARIES NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Condnued) September 30,1014 (unaudited) management ofthe Partnership's property and the property ofits operating subsidiaries in the ordinary coutse ofbusiness; recommendations on capital raising activities to the board of directors of the Partnendlip's general partner, including the issuance of debt or equity interests, the entry into credit fucilities and othereapital market transactions~ managing or overseeing litigation and administrative or regulatory proceedings, establishing appropriate insumnce 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. As payment for services provided under the agreement, the Partnership, its general partner or subsidjaries must pay CVR Energy (i) all costs incurred by CVR EneJgy or its affiliates in connection with the employment of its employees, other than administrative personnel, who provide the Partnership setvices under the agreement on a full-time basis. but excluding certain share·based compensation; (ii) a prorated share of costs incurred by CVR Energy or its affiliates in connection with the employment of its employees, including administrative personnel, who provide the Partnership services under the agreement on a part-time basis, but excluding certain share-based compensation. and such prorated share shall be detennined by CVR Energy on a commercially reasonable basis, based on the pen:entagc oftotal working time that such shared penonnel aro engaged in perfonning setvices for the Partnership; (iii) a prorated share of certain administrative costs. including office costs, sctviccs by outside vendors, other sales, general and administrative costs and depreciation and amortization; and (iv) various other administrative costs in accordance with the terms ofthe agreement. including travel, insurance. legal and audit SCJViccs, government and public relations and bank charges. Eitlacr CVR Energy or the Partnership's general partner may temporarily or pennancntly exclude any particular setvicc from the scope oftltc agreement upon 180 days' notice. Either CVR Energy or the Partnership's general partner may terminate the agreement upon at least 180 days• notice, but not more lhan one year's notice. Furthermore, the Partnership's general partner may tenninate the agreement immediately ifCVR Energy becomes bankrupt or dissolves or commences liquidation or winding-up procedures. In order to &cilitate the carrying out of sctvices under the agreement, CVR Refining and CVR Energy have granted one another certain royalty-free, non· e~tclusiveand non-transferable rights to use one anothcl's intellectual property under certain circumstances. The agreement also contains an indemnity provision whereby the Partnership, its general partner, and its subsidiaries, as indemnifying parties, agree to indcnmify CVR Enc~gy and its affiliates {other than the indemnit)'ing parties themselves) against losses and liabilities incuned in connection with the performance of SCIVices under the agreement or any breach oftbe agreement, unless such losses or liabilities arise from a breach of the agreement by CVR Energy or other misconduct on its part, as provided in the agreement The agreement contains a provision stating that CVR Energy is an independent contractor under the agreement and nothing in the agreement may be constnaed to impose an implied or express fiduciary duty owed by CVR Energy, on tbe one hand, to the recipients ofsctvices under the agreement, on the other hand. The agreement prohibits recovery oflost profits or revenue, or special, incidental, exemplary. punitive or consequential damages from CVR Energy or certain affiliates, except in cases of gross negligence, wJllful misconduct. bad faith, reckless disregard in pcrfonnance ofsetvices undertl1e agreement, or fraudulent or dishonest acts. P3 Filed 1/121201511:34:37 AM Annie Rebecca Elliott District Clerk Fort Bend County, Texas Sonny Garcia 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. § Fort Bend County - 268th Judicial District Court Defendants. § JUDICIAL DISTRICT COME NOW, Plaintiffs DONALD R. COLLIER, JENNIFER J. COLLIER, DALE A. NIEMEYER and WENDY NIEMEYER complaining of and against CVR ENERGY, INC. and CVR REFINING, LP (hereinafter collectively referred to "CVR''); Defendants herein, and for cause of action, would respectfully show unto the Court as follows; 1. Plaintiffs intend to conduct discovery under Level 3 pursuant to Rule 190.3 of the 2. Plaintiff DONALD R. COLLIER, is an individual who resides in Independence, 3. Plaintiffs JENNIFER J. COLLIER, is an individual who resides in Independence, 4. Plaintiff DALE A. NIEMEYER, is an individual who resides in S. Coffeyville, 5. Plaintiff WENDY NIEMEYER, is an individual who resides in S. Coffeyville, EXHIBIT 1 IG Pl 6. Defendant CVR ENERGY, INC. (hereinafter referred to as "CVR") is a Delaware corporation with its principal place of business located in Fort Bend County, Texas. Defendant may be served with process by serving citation on its Registered Agent C. T. Corporation System, 350 North St. Paul Street, Suite 2900, Dallas, Texas 75201. 7. Defendant CVR Refining, LP (hereinafter referred to as "CVR Refining") is a Delaware corporation with its principal place of business located in Fort Bend County, Texas. Defendant may be served with process by serving citation on its Registered Agent CSC, Corporation Service Company, 211 East 7th Street, Suite 620, Austin, Texas 78701. ill. JURISDICTION AND VENUE 8. Plaintiffs seek damages within the jurisdictional limits of this Court. 9. This Court has personal jurisdiction over defendants because each of the Defendants has its principal place of business in Fort Bend County, Texas and all Defendants are engaged in foreseeable, intentional, continuous, and/or systematic contacts within Texas, so that 10. Furthermore, exercising jurisdiction over those Defendants based outside of Texas will not offend the notions of fair play and substantial justice. 11. Venue is proper in Fort Bend County, Texas pursuant to TRCP § 15.002(a) (3) because it is the county of the defendant's principal office in this state. 12. Plaintiffs are employees of Defendant Coffeyville Resources Refining &Marketing, LLC (hereafter referred to as "C~'). CRRM is a wholly-owned subsidiary and controlled by Defendants CVR Refining LP, CVR Refining, LLC, and CVR Energy, Inc. (hereafter referred to as "CVR"). P2 13. Plaintiffs, as employees of CRRM, worked at an oil refinery in Coffeyville, Kansas, hereafter referred to as the Coffeyville Refinery or the Refinery. The Coffeyville Refinery is owned 14. On July 29, 2014, a critical leak occurred on a pump in the Isometric Unit of the Refmery. A huge, fiery explosion resulted, severely injuring Plaintiffs and causing the death of Relationship of CRRM and CVR 15. Plaintiffs incorporate, by reference to paragraphs two (2) through fifteen (15) 16. CRRM is a wholly-owned subsidiary of CVR Refining LP, and ultimately, up the corporate chain, a wholly-owned subsidiary of CVR Energy, LLC. 17. CVR Energy, Inc., and CVR Refining, LP ("CVR Refining") collectively own/control CRRM. CVR are parent companies of CRRM. The CVR companies are created as a vast web of corporate control and direction created for the sole purpose of maximizing profit, co1porate greed and veiled legal attempts to protect themselves from their own negligence. a. CVR owns all or most of CRRM stock; d. CVR subscribes to all ofCRRM's stock; e. CRRM is undercapitalized without CVR; f. CVR refers to CRRM as its subsidiary, division or department; P3 g. CRR.M's officers or directors follow direction from CVR; and h. the legal formalities for keeping these entities (CVR and CRRM) separate and independent are obsetved. CVR is the collective, dominant corporation over CRRM, their wholly-owned subsidiary and is therefore liable for the torts of its wholly-owned subsidiary. 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. CVR failed. CVR's failure is negligence as defmed above. 20. Plaintiffs incorporate, by reference to paragraphs two (2) through nineteen (19) herein that additionally, Defendants' acts involved an extreme degree of risk to Donald R. Collier and Dale A. Niemeyer, considering the probability and magnitude of the potential harm to others, especially in light of certain facts which were known to Defendants before Donald R. Collier and Dale A. Niemeyer sustained severe and disabling injuries. 21. Defendants' acts and omissions 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 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 P4 corporate officers, directors and employees in Texas. Defendants CVR seek all benefits and protections of Texas law. Texas has a vested interest in the conduct of its corporate citizens. 23. As a result of the Defendants' actions, each Plaintiff has been deprived of the care, maintenance, support, services, advice, counsel, and contributions of a pecuniary value, as well as companionship and society, including love and comfort as a result of the injuries of DONALD R. COLLIER and DALE A. NIEMEYER. Further, Plaintiffs have suffered pecuniary losses, in the past, have experienced and will continue to experience immense mental anguish, suffering and grief in the future. Plaintiffs seek all damages available for the injuries of DONALD R. COLLIER and DALE A. NIEMEYER. 24. The Defendants have been guilty of reckless disregard for the rights of others, have acted intentionally and with malice towards others and engaged in conduct life-threatening to humans. Plaintiffs are, therefore, entitled to an award of punitive damages. 25. All conditions precedent to Plaintiffs' right to recover herein and to Defendants' 26. Plaintiffs demand that all issues of fact in this case be tried to a properly 27. Plaintiffs request all information be provided pursuant to Texas Rule of Civil PS 28. WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that, after trial on the merits, Plaintiffs obtain judgment against Defendants for the following: j. pre-judgment and post-judgment interest thereon at the maximum legal rate; l. such other and further relief to which Plaintiffs may be justly entitled. THE RIEBSCHLAGER LAW FIRM, PC 801 Congress, Suite 250 Houston, TX 77002 Telephone: (281) 904-1404 Email: garv@riebschlagerlaw.com /s/Garv M. Riebschlagel' GARY M. RIEBSCHLAGER Texas Bar No. 16902200 TATE MOERER & KING, LLP RICHARD L. TATE State Bar No. 19664460 Email: rltate@tate-law.com KRISTIN RBIS State Bar No. 24060478 Email: kreis@tate-law.com 206 South 2nd Street Richmond, Texas 77469 Telephone: 281-341-0077 Facsimile: 281-341-1003 ATTORNEYS FOR PLAINTIFFS DONNIE COLLIE]:t AND JENNIFER COLLIER DALE A. NIEMEYER AND WENDY NIEMEYER P6 CAUSE N O . - - - - - DONALD R. COLLIER, JENNIFER J. § IN mE DISTRICT COURT OF COLLIER, DALE A. NIEMEYER, and § WENDY NIEMEYER § Plaintiffs, § v. § FORT BEND COUNTY, TEXAS § CVR ENERGY, INC. and, § CVRREFINING, LP. § Defendants. § _ _ _ JUDICIAL DISTRICT PLAINTIFFS' FIRST REQUEST FOR PRODUCTION TO DEFENDANTS CVR ENERGY, INC. AND CVR REFINING, LP TO: Defendant CVR ENERGY, INC., by and through its Registered Agent, C. T. Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, TX 77201 Defendant CVR REFINING, LP, by and through their Registered Agent, CSC, Corporation Service Contpany, 211 East 7th Street, Suite 620, Austin, TX 78701 COME NOW, DONALD L. COLLIER, JENNIFER J. COLLIER, DALE A. NIEMEYER, and WENDY NEIMEYER (hereafter collectively referred to as "Plaintiffs"), in the above entitled and numbered cause, and hereby pursuant to Rule 196 of the Texas Rules of Civil Procedure, serve the attached written requests for production on Defendants CVR ENERGY, INC. and CVR REFINING, LP, requesting that Defendants produce and pennit the inspection and copying the documents or things requested below, within fifty {50) days after service of this request, at the office of the Wldersigned located at THE RIEBSCHLAGER LAW FIRM, PC, 801 Congress, Suite 250, Houston, Texas 77002, or at such other time and place as may mutually agreed upon. P7 Texas BarNo. 16902200 801 Congress, Suite 250 Houston, TX 77002 Telephone: (281) 904·1404 Email: gary@riebschlagerlaw.com TATEMOERER&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: 281·341-1 003 ATTORNEYS FOR PLAINTIFFS DONNIE COLLIER AND JENNIFER COLLIER DALE A. NIEMEYER AND WENDY NIEMEYER P8 DEFINITIONS AND INSTRUCTIONS The following definitions and instructions apply to the requests listed below: 1. ''Plaintiffs" refer to the Plaintiffs named in this lawsuit unless specifically referred to otherwise. 2. "Defendant" refers to CVR ENERGY, INC.; and CVR REFINING, LP and its agents, representatives and employees (past or present) unless referred to otherwise. 3. ''You," "your,'' or "yours" shall mean CVR ENERGY, INC.; and CVR REFINING, LP or your agent, contractor or designee 4. The tem1 "and/or," "or," and "and'' are used inclusively, not exclusively. 5. "Document(s)" shall mean all original or copies of communications reduced to tangible form, whether print or electronic fonnat, in the possession, custody or control of the Defendant. 6. The term "communication(s)" shall mean all emails, letters, telegraphs, memoranda, including all reports of or references to telephone conversations, face-to-face conversations or other fonns of oral or written conuuunications, whether maintained as print or electronic format. 7. "h1cident" or "Incident in Question" means the valve failure in the ISOM Unit occurring on or about July 29, 2014 causing the events and damages described in Plaintiffs' pleadings. 8. "Relevant Time Period" shall mean 5 years prior to the Incident, inclusive. 9. "OSHA" refers to Occupational Health & Safety Administration. P9 PLAINTIFFS' FIRST REQUEST FOR PRODUCTION TO CVR ENERGY, INC.; CVR REFINING, LP If you claim any document(s) are privileged and not discoverable, please identify generally the document(s) withheld and the basis of privilege. REQUEST FOR PRODUCTION NO. 1: All documents evidencing statements made by witnesses pertaining to the Incident in question. REQUEST FOR PRODUCTION NO. 2: All initial, preliminary, interim or final incident reports pertaining to the Incident in question including but not limited to those prepared for or by: a) You; b) OSHA; c) any other government agency or department. REQUEST FOR PRODUCTION NO.3: All drafts of any accident/incident investigation reports pertaining to the Incident in question. REQUEST FOR PRODUCTION NO.4: All documents furnished to any governmental agency related to the Incident in question. REQUEST FOR PRODUCTION NO.5: All photographs or video recordings of or near the location of the Incident taken or obtained as a result of the Incident in question. P10 REQUEST FOR PRODUCTION NO. 6: All safety bulletins or memos issued or circulated pertaining to the Incident in question. REQUEST FOR PRODUCTION NO. 7: All documents which identify any members of any incident investigation team pertaining to the Incident in question. REQUEST FOR PRODUCTION NO. 8: All documents which identify any members of any incident investigation team pertaining to the Incident in question. REQUEST FOR PRODUCTION NO. 9: All photographs or video recordings taken or recorded during any site inspection related to the Incident in Question. REQUEST FOR PRODUCTION NO. 10: All safety manuals, user manuals, maintenance and repair manuals in your possession with regards to the ISOM Unit that forms the basis of this lawsuit. REOUESTFORPRODUCTIONNO.ll: All docwnents, pertaining to the maintenance and repairs made, within the Relevant Time Period.to the ISOM Unit va1ve that failed causing the Incident in Question. P11 REQUEST FOR PRODUCTION NO. 12: All communications pertaining to the maintenance and repairs made, within the Relevant Time Period.to the ISOM Unit valve that failed causing the Incident in Question. REQUEST FOR PRODUCTION NO. 13: All OSHA reports and OSHA violations issued regarding your refmery in Coffeyville, Kansas within the Relevant Time Period REQUEST FOR PRODUCTION NO. 14: All documents prepared and submitted by you to OSHA or any other governmental agency concerning your refinery in Coffeyville, Kansas regarding the Incident in Question. REQUEST FOR PRODUCTION NO. 15: All documents prepared by you or any third party regarding the ISOM Unit valve failure regarding the Incident in Question. REQUEST FOR PRODUCTION NO. 16: The Budget prepared by and for the Coffeyville plant, inclusive of the ISOM Unit, for the year 2014 and submitted to the Board of Directors of Coffeyville Refining and Marketing and/or its parents CVR Refining LLC or CVR Refining, LP. REQUEST FOR PRODUCTION NO. 17: The Budgets prepared by the Coffeyville plant for the Relevant Time Period. P12 REQUEST FOR PRODUCTION NO. 18: The Capital Plan prepared by and for the Coffeyville plant, inclusive of the ISOM Unit, for the year 2014 and submitted to the Board of Directors of Coffeyville Refining and Marketing and/or its parents CVR Refining LLC or CVR Refining LP REQUEST FOR PRODUCTION NO. 19: All Capital Plans prepared by the Coffeyville plant for the Relevant Time Period. REQUEST FOR PRODUCTION NO. 20: All communications between you and any agent, employee or representative of CVR Refining LLC and /or CVR Refining LP regarding the Budget of2014. REQUEST FOR PRODUCTION NO. 21: All cotruuunications between you and agent, employee, or representative of CVR Refining LLC and/or CVR Refming LP regarding the Capital Plan of2014. REQUEST FOR PRODUCTION NO. 22: All documents evidencing any actual maintenance upon the valve/pump from which product leaked causing the Incident in Question. REQUEST FOR PRODUCTION NO. 23: All documents evidencing any planned maintenat1ce upon the valve/pump from which product leaked causing the Incident in Question. P13 REQUEST FOR PRODUCTION NO. 23: All documents evidencing any actual maintenance upon the valve/pump from which product leaked causing the Incident in Question. REQUEST FOR PRODUCTION NO. 2: All documents evidencing any inspection of the valve/pump from which product leaked causing the Incident in Question during the Relevant Time Period. P14 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 VERIFICATION STATE OF TEXAS } COUNTY OF HARRIS BEFORE ME, the undersigned authority, appe~ J\RY M. RIEBSCHLAGER, known to me to be the person whose name is subscribed here· eing duly sworn, deposes and says that the pages attached hereto are true and correc excerpts of the deposition of ROBERT WESTGROVE HAUGEN, taken on January 19 0 5, in the above- ed matter. SUBSCRIBED AND SWORN TO bef~ po 11!Y Jlublic, by GARY M. '5'th ztl ()': , RIEBSCHLAGER, on this witness my hand and seal of office. day of ~ . r ~ 2015, to which UL ./ {PiA d 7JJ fitN ~'"!"!''" f 1.~;t f.c:;-'~ CECIUA GAITAN ~~:"\ Notarv Public. State of Texas Notary Public in and for the State of Texas ..,_~~"'l"\·ii Mv Commission Expires "i:~;~t,{;~\" December 05. 2017 Pl Page 1 CAUSE NO: 13-DCV-209679 LEEANNA MANN IN THE DISTRICT COURT OF and KARl SMITH, Plaintiffs, vs. CVR Energy, INC.; FORT BEND COUNTY, TEXAS CVR PARTNERS, LP; CVR REFINING, LP; GARY-WILLIAMS ENERGY COMPANY, LLC;) and WYNNEWOOD ) REFINING COMPANY, LLC, Defendants. 434th JUDICIAL DISTRICT VIDEO DEPOSITION OF ROBERT WESTGROVE HAUGEN TAKEN ON BEHALF OF THE PLAINTIFFS IN OKLAHOMA CITY, OKLAHOMA ON JANUARY 19, 2015 REPORTED BY: KATHY FOREMAN, CSR #190 MAGNA8 LEGAL SERVICES P2 I- H Page 6 1 A Robert Haugen. 2 (Plaintiff's Exhibit No. 1 marked 3 for identification) 4 Q I hand you what's marked as Exhibit 5 No. 1, which is the Notice of Deposition of the 6 Corporate Representative of CVR Energy, Inc. and 7 CVR Refining, LP, the person with the most 8 knowledge regarding due diligence of the 9 purchase or acquisition of the Wynnewood 10· Refining Company. 11 Is that your understanding, sir? 12 A Yes. 13 Q As the -- I'm going to just use CVR as 14 an acronym for CVR Energy and CVR Refining, LP. 15 Is that okay with you? 16 A Yes. 17 Q Have you been designated by CVR as a I 18 19 person with -- most knowledgeable regarding that topic? I 20 A Yes. I 21 Q All right. Where do you work, sir? 22 A At CVR Energy's Sugar Land office. 23 Q All right. Where do you reside? 24 A Houston, Texas. 25 Q How long have you worked for CVR MAGNA8 LEGAL SERVICES P3 Page 7 1 Energy, Inc.? 2 A Since June of 2005. 3 Q Am I correct in assuming that you 4 worked for CVR Energy, Inc.? 5 A I worked for -- I'm an officer of CVR 6 Energy, Incorporated. I'm an officer of.CVR 7 Refining, LP, and I'm an officer of Wynnewood 8 Refining Company, LLC., I believe. 9 I think I'm an officer of all of the 10 companies in the refining side of the business. 11 Q All right. So that would make you an 12 officer of CVR Energy, CVR Refining, Wynnewood 13 Refining, LLC, Coffeyville Refining and 14 Marketing, and then all of the other 15 subsidiaries on the refining side? 16 A Right. 17 Q Okay. What office do you hold, sir? 18 A Executive Vice President of Refining 19 Operations. 20 Q How long have you held the office of 21 Executive Vice President of Refining Operations 22 for all of those companies? 23 A I'd have to go back and look for each 24 specific one. Obviously when we purchased 25 Wynnewood, I became an officer of that company P4 Page 9 1 responsibilities. 2 Q Yes. 3 A So currently I'm responsible for the 4 day-to-day operations of the refineries. And 5 I'll try to clarify that by excluding some \ 6 responsibilities. 7 So the marketing group, the marketing 8 and supply group do not report to me. Our 9 economics and planning group is separate. 10 But if you look at the day-to-day 11 refinery operations and maintenance personnel 12 report to me. Our environmental group reports 13 to me. Our capital project group currently 14 reports to me, and the pipeline operations 15 group, similar to the refining group, so that we 16 have a marketing and supply group on the 17 pipeline operations that do not report to me but 18 the operational portion of the pipelines and the 19 truck operations on the pipeline side report to 20 me. 21 Q In terms of planning and budgeting 22 currently, do you oversee or have reported to 23 you the planning and budgeting requirements for 24 each of the refineries? 25 A Again, I'll try to -- it's somewhat MAGNA8 LEGAL SERVICES P5 Page 173 1 C E R T I F I C A T E 2 3 4 STATE OF OKLAHOMA SS: 5 COUNTY OF CANADIAN 6 7 I, KATHY FOREMAN, Certified Shorthand 8 Reporter within and for the State of Oklahoma, do hereby certify that the above-named ROBERT 9 WESTGROVE HAUGEN was by me first duly sworn to testify the truth, the whole truth, and nothing 10 but the truth, in the case aforesaid; that the above and foregoing deposition was by me taken 11 in shorthand and thereafter transcribed; that the same was taken on January 19, 2015, in 12 Oklahoma City, Oklahoma, pursuant to agreement and under the stipulations hereinbefore set out; 13 and that I am not an attorney for nor relative of any of said parties or otherwise interested 14 in the event of said action. 15 IN WITNESS WHEREOF, I have hereunto set 16 my hand and official seal this 1st day of February 2015. 17 18 19 20 21 22 KATHY FOREMAN State of Oklahoma CSR #190 23 24 25 P6 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, § CVRREFINING,LP. § Defendants. § 268m JUDICIAL DISTRICT BEFORE ME, the undersigned authority, appeared GARY M. RIEBSCHLAGER, known to me to be the person whose name is subscribed herein, bei duly sworn, deposes and says that the pages attached hereto are true and correct excerpts o deposition o JAY FINKS, taken on December 10, 2014, in the above-styled matter. SUBSCRIBED ANDci)WORN me a n t8!)' public, by GARY M. RIEBSCHLAGER, on thisW\..: --~-~~~=...~-.---~ 2015, to which witness my hand and seal of office. circE Gat l£w CECILIA GAITAN -~- Notary Public in and for the State of Texas ~-(~~·~::,,. CECiliA GAITAN ~~~~\ Notary Public. State of Texas \":.~.~i~i My Commission Expires •,~t:?.~:~~~#' December 05. 2017 Pl Page 1 CAUSE KO. 13-DCV-2~9679 ?laintiffs, vs. FORT BEND COUNTY, TEXAS CVR ENERGY, INC.; CVR PARTNERS, LP; CVR REFINING, LP; GARY-WILLIAMS ENERGY CORP.; WYNNEWOOD REFINlNG COMPANY, LLC; Defendants. 434TH JUDICIAL DISTRICT ******************************************************** ORAL DEPOSITION OF JAY M. FINKS DECEMBER 10, 2014 Volume 1 of 1 ******************************************************** ORAL DEPOSITION OF JAY M. FINKS, produced as a witness, duly sworn by me at the instance of the PLAINTIFF, was taken in the above-styled and numbered cause on the lOTH of DECEMBER, 2014, from 10:03 A.M. to 1:08 P.M., before PENNY L. PABITZKY, CSR, RPR, in and for the State of Texas, reported by stenographic method, at the offices of Martin, Disiere, Jefferson & Wisdom, LLP, 808 Travis, 20th Floor, Houston, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto. ***** MAGNA LEGAL SERVICES 866-626-6221 www.MagnaLS.com MAGNA8 LEGAL SERVICES I I \ P2 \ p~~<~ 2!I Page 4 API'f.AR.\NC'JS I INUJ~ ·. Fl'k THE PI AIN'IUH· ~ CiARr M RIFB.<:( Ill •'\(it-R ! I PAGE ! f<:~:h!o;!li:t!!•' I.••• Hm, ! ."\f'j'l\;;1:".11);\.":<. . i .."' l<"'lull!'n.·· '~l'l'oil.t;i~•.t- ~uilc ~!'l· •,w r~~ H:'\t,~ i· fiOU.~1C'II. 11.'\6~ 7;11.(( [:'(aiJiinnllUII I~ M: Rtcl• 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: 12 13 14 14 15 EXAMINATION BY MR. RJEBSCHLAGER: .I 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? I .I 2 (Pages 2 to 5) MAGNA8 LEGAL SERVICES P3 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.) I MAGNA8 LeGAL SERVICES 3 (Pages 6 to 9) P4 ?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: 4 (Pages 10 to 13) MAGNA8 LEGAL SERVICES PS Pagr: 1 tJ rage l 6 - Q. - and lhat's a whole set of·· another set of l A. I bcJie\'c so. 2 other .issues. I suppose - that purchase order then goes 2 Q. Okay. For instance, Wyrmewoud would be hooked ro account~ p3yablt>. 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 h Page 15 Page 17 l only, and lhere are other subsidiaries, does not pay its l payable function. Can you enlighten me funher on tha~ 2 own accounts payable. In other words, it doesn't write 2 please? 3 its own check? 3 A. What specifically do you not - 4 A. I do not know that for sure. 4 Q. All rigbL Let's just- again, the ·- the bill 5 Q. But as fir as you understand 1he •• the method, 5 comes in to -from WyMewood? 6 a Wynnewood clerk would enter it into the system and it 6 A. Uh-huh. 7 would go Into ao accounts payable department and it 7 Q. And it needs to get paid. An electrical •• 8 would ultimately get to your department for payment. 8 electrical contractor submits a bill. 9 A. For the release of funds. 9 A. Right. 10 Q. For the release- 10 Q. And it needs to get paid. Explain to me, the 11 12 A. My -my department specifically releases the cash out ofthe bank aa:ount. 11 12 . Court, and the jury how that bill ultimately gets pai~ 1hrough your department step by step. 13 Q. And when )'OU say "my departmeut" - 13 A. When the- when the invoice would be RCCived, 14 (Simultaneously speaking.) 14 it would be coded by the appropriate accounting 15 A. Meaning- to clarify, the tteasmy department. 15 individual. 16 Q. (BY MR. RIEBSCHLAOER) Thctn:asuly dcpmtment 16 Q. At Wynnewood? 17 at CVR Energy? 17 A. J don't specifically know because it depends 18 A. Yes. 18 upon where the invoices were to be teeeived. For 19 Q. Now, in the centmlized accounring system. arc 19 instance. if it was received somewhere else. it might be 20 all of the c:ompu1ies in the CVR system booked up to the 20 booked at a different location. So, once the invoice is 21 same CtlltrBUzed accounting system? 21 then booked, as it gets processed through the- through 22 A We use Oracle. 22 the system- when I say •processed through the system," 23 Q. Okay. Okay. Thank you for telling me who you 23 entered through accounts payable. 24 use, but are aU lhe companies still hooked up to- to 24 Then it is then scheduled for payment, 25 Oracle? 25 whether i~s ACH or wire or check. And once the ACH MAGNA8 LEGAL SERVICES 5 (Pages 14 to 17) P6 Pc::ge 18 Page 20 and/or wire payments ore scheduled to be rc:h:a."~cd, the 1 A. Payment? No. They would go through their same 2 treasury depanment then confimu those pnymcrus with 2 appro\'al process based upon the delegation of authority 1hc ill\·oice und schcdulinJ!, viti the batc:h •. \I in: hntdt ~ of the indi\lidual who is, A. I"CtJUCsting the cap X ln lx- sylilcm. L~t nll." •• th;at ""''~ not cnrn:cr. 4 "l''~nt: :md nnce it gc:ls lhruu~h it~-- th~ system, th~· The= wire bHlch is nol a system. ll's a 5 ftllpruvul of·· uf moneys for cup X would be wired or rc:pu:1. We Cl'nfinu th;at '' ith the invok~ aud wlun·!- C. ACII'd tht' smne way that a a·cs_!uhtr invoice for priming entered into (Jur bunking system. Confinn thut amd then 7 Wtluldb:. 6 \\'~ release tbc: tunds. e Q. So •• so, the payment process under capital 9 Q. All right. 9 expenditure, or cap X as you've abbreviated. is - is 10 A. We do not review all checks that are cut. 10 e..o;sentially the same. It ultimately comes out of the 11 Q. Okay. Is it safe to say, then, that CVR Energy 11 treasury department for CVR Energy. The only tnle 12 would pay the bills of Wynnewood Refining Company? 12 difference would be the approval process for lhe capital l~ A. No. Wynnewood Refining through CVR Refining 13 expenditure. 14 pays tbe biJls. 14 A. Correct. 15 Q. Okay. Through CVR Refining. 15 Q. Do you have any personal knowledge regarding the 16 A. Correct. 16 approval process for capital expenditures that pertain 17 Q. All righL So •• okay. 1got it now. 17 to, say. Wynnewood Refining Company? 18 So, CVR Refining then - or CVR Refining -- 18 A. 1-· fn general, J know the process. I don't 19 when you say "CVR Refining." ore you talking about the l 9 know specifics. 20 LP or the LLC? 20 Q. All righL Can you give 1nc the-- generally, to 21 A. LLC. 21 the limits of your knowledge, the approval process for 22 Q. Okay. So. CVR Refining, LLC. pays the bj))s for 2 2 the approval of a capital expenditure for W)'JlDewood 23 Wynuewood Refining Company. 23 Refining Company? 24 A. Not from a pure cash standpoint. It would be 24 A. Wei~ the approval process begins with the 25 tbcn out -the best way to describe this, if ... if 25 capital plan. So, every year we go through a budget Page 19 Page 21 1 you're looking at the entities, if Wynnewood Refining 1 into which we have a plan; and- and those capital 2 Company has an invoice into which it pays, it pays out 2 plans are. therefore, approved. 3 of- out of their account, which is funded by CVR. 3 Once that's- once that's done. then, as 4 Refining. So, it - it's- CVR Refining gets- ~ capital - capital expenditures become expensed and/or 5 Coffeyville Resources- you've got- not Coffeyville 5 incurred. they go through approval processes similar to 6 Resources - CoftCyville Refiniug & Marketing, et 6 just like a TCgular invoice you would receive and based 7 cetera. They ali have their specific accounts; but it 7 upon the delegations of authority to the correct •• the 8 all gets paid out of Coffeyville- orCVR Refining, 8 right individuals would have to approve those capital 9 LLC. 9 expenditures. And that would go through an APE, which 10 Q. CVR Refining, U.C. 10 is "Authority for Expenditure.• which is - that's the 11 A. Yes. l'mspecificallyspealdngtothewiresand 11 difference tban a regular invoice you might get from 12 ACHs that wrn: doing. Now, checks migbl be cut on 12 printing. 13 different accounts. 13 Q. I get that. 14 Q. All right. And,~ that holds true for all 14 You say that a capital plan is prepared and 15 the subs under Refining, U..C; Wynnewood-- 15 approved each yeaf/ 16 A. Qude Transportation. 16 A. Uh-huh. 17 Q. -Crude TnnsportatiQDs Coffeyville, et cetera? 17 Q. •Yes"? 18 A. Yes. 18 A. Yes. I apologize. 19 Q. AD right. Ta1k to me about capital 19 Q. Now, is it prepared and approved each year for 20 expenditures, the big spends. Okay? 20 each company? 21 A. lJh..huh. 21 A. For- Petroleum would have its own capital 22 Q. Are those handled differently than day-to-day 22 plan. Fertilizer would have its own capital plan. 23 aCCOWlts payable? 23 Q. All right. Now, would it be ... when yoa say 24 A. "Handled differently'' as to? 24 "petroleum," that would be CVR Refming, LP. would 25 Q. Payment. 25 have-· 6 (Pages 18 to 21) MAG NAG LEGAL SERVICES P7 J~;:.gp ') . I ,~ I J A Yl·;.;. A I hdic\'C :'U. ; Q A -- ito. nwn cnpit;:l plaa. right? Tlwi', 1igh1 I I .: Q. Okny. 1\C'W. within tlu: c11pitt:l plan. yuu -· yoc ul,:u nu:nriuncd thL· ttml ''hl!dlo=l': " i I (.1 '''l Zll• t. ~'~ti •I: '•\ \' f 1...,, t·&•' 'I '\ , ...::\, ! ••• , ' ...... p:l .. ; :\ t t.-t;.L ph.r: b~1 ·• MAGNA8 LEGAL SERVICES 7 (Pages 22 to 25) P8 J And. uuc\.' a~ain. \\'ynnC\\'Ctnd wuuld ~uhmu a A h "'"'uld l!U 1tt -- uf lht: LP hud~tt. (tlffcy\'illc "'''uld ~ubmit a hudg&:t. Crude. and Q Sn., then. the LP t'r •· ;•If 1111: ~\ih~o:idiol 1 'i\·c; \\ Nl)d .:uhmit :a hucl~·d f&'l ;I H'ol!. : -:. ,, I hdit'\C .. J hdii!VI.' I •• h(.'IU~lll~·. J -I d,n·c ,.,,1'~: :11· I dc!l\·1 ''·;·!111•111 '"l'••cl I 1~1 nr•l ,.;•.,· :\. )ll&l~ll t.I.U\'. ::11. :.p1.1.1IJ.; .. O:l huo\ Cio\~ &i\! •• :~: 1.'\,:\'1:~· -- ··:l L'k .;mrct!;in~ ·\:, \·o:: r~fcrr::1~·! . 1i:,· .-:.p·::ti . 0 0~.:1\' Q. Pial'-· r,\ lht'X. A. -- ""''" il J:!"''t."' :\ ·- plun'! (Simuhancw.ody Sf1C41kin&.} Q. •• and budget. Q. (BY ~iR. RIEBSCHLAGER) ll1c LP -- the LP dn·.."lln'l ](; A. Yes. 10 have a board TI~e OP does. 11 Q. All tbe same •• 11 A The OP, yecll. I apologize. 12 A. Yeah. Now, J•• I do not know specifically on 12 Q. So, the OP of the LP would approve the capital 13 the details of how they roll up into that. I was 13 plan'! ]4 speaking to a capital - overall capital plan that I •• 14 A Jam not sure. 15 that 1know of and how that gets approved. How it rolls lS Q. All right. Once tbe capital plan budget is 16 up into there. I am not completely awan: of all the 16 approved by all the seaiormanagcmem and board oC 17 details. 17 directcn for CVR Refining. LP, does it- where docs it 18 Q. TI1e one thin!! we're absolutely sure of is that 18 go next. if anywhere? :9 per year there is a cnnsoJidated capital plan hud~el pet 19 r>oes 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 ll 12 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,~ I I 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 9 (Pages 30 to 33) P10 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 P11 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. 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 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. 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. 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. 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. CVR-12542 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. 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. 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 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 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. 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 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 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." 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 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 (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 ·-·---·------·--·--·-. ··----- · - - - - -I. DISCOVERY CONTROL PLAN
IV. BACKGROUND AND FACfS
V. CAUSE OF ACTION-NEGLIGENCE
18. CVR controls CRRM in one or more of the following methods:
VI. CAUSE OF ACIION-GROSS NEGLIGENCE
IX. DAMAGES
XI. .WRY DEMAND
XII. REQUEST FOR DISCLOSURE
10. "EPA" shall mean the Environmental Protection Agency.
I. GENERAL DENIAL
I DECLARE UNDER PENALTV OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.
I. Maintenance of the action in Texas will work a substantial injustice to the
I. FACTS.
II. ISSUES.
III. KANSAS IS MORE APPROPRIATE AND MORE CONVENIENT TO THE PARTIES.
IV. THE GULF OIL FACTORS STRONGLY MANDATE DISMISSAL IN FAVOR OF A KANSAS FORUM.
2. Availability of Compulsory Service.
4. Enforceability of a Judgment and Other Practical Problems.
V. GULF OIL PUBLIC INTEREST FACTORS FAVOR KANSAS.
2. The Burden of Jury Duty.
VI. AVOIDANCE OF mE APPLICATION OF FOREIGN LAW.
VIII. CONCLUSION
I. THE GULF OIL FACTORS STRONGLY MANDATE DISMISSAL IN FAVOR OF A KANSAS FORUM
A. Witnesses to the Refinery Accident Cannot be Required to Appear.
B. Available Forum.
C. Kansas Law Will Apply to This Accident.
1. RESTATEMENT Section 6 General Factors.
2. RESTATEMENT Section 145 Specific Factors.
D. The Fact that Kansas Law Is Different is Irrelevant.
E. Texas Should not Have to Bear the Burden of Hearing This Case.
5. Donald Collier Plaintiff
24. Dale Niemeyer Plaintiff
I. SUMMARY OF THE ARGUMENT
II. ARGUMENT AND AUTHORITIES
III. DEFENDANTS' FAILURE OF PROOF
A. Introduction
B. The Gross Affidavit
A. Private Interests and Factors
B. Public Interests and Factors
IV. APPLICABLE STATE LAW
14. The general factors relevant to analysis are:
V. TEXAS IS A CONVENIENT FORUM FOR THESE TEXAS DEFENDANTS
B. Public and Private Interest Factors
C. WITNESSES
30. In addition, others are perceived to be necessary.
I E
II. PARTIES
IV. BACKGROUND AND FACTS
18. CVR controls CRRM in one or more of the following methods:
VI. CAUSE OF ACTION-GROSS NEGLIGENCE
VIII. CHOICE OF LAW- TEXAS
X. CONDITIONS PRECEDENT
XI. JURY DEMAND
XIII. CONCLUSION AND PRAYER
10. "EPA" shall n1ean the Environmental Protection Agency.
Related
Cite This Page — Counsel Stack
in Re CVR Energy, INC. and CVR Refining, LP, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cvr-energy-inc-and-cvr-refining-lp-texapp-2015.