                                                                                   ACCEPTED
                                                                                01-15-00453-cv
                                                                    FIRST COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                          7/20/2015 5:28:02 PM
                                                                         CHRISTOPHER PRINE
                                                                                        CLERK

                              NO. 01-15-00453-CV

                                    In The                    FILED IN
                                                       1st COURT OF APPEALS
                                                           HOUSTON, TEXAS
                           FIRST COURT OF APPEALS
                                                       7/20/2015 5:28:02 PM
                                                       CHRISTOPHER A. PRINE
                               At Houston, Texas               Clerk
                                  __________

      THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA,

                                  Appellant,

                                      V.

                            KEVIN ROBERTS, et al,

                                  Appellees.
                                 __________

                    Appealed from the 165th District Court of
                             Harris County, Texas
________________________________________________________________________

                          APPELLANT’S BRIEF
________________________________________________________________________

Loren R. Smith
State Bar No. 18643800
Kelly & Smith, P.C.
4305 Yoakum Blvd.
Houston, Texas 77006
Tel.: (713) 861-9900
Fax: (713) 861-7100

                         ORAL ARGUMENT REQUESTED
                        NO. 01-15-00453-CV

 THE INSURANCE COMPANY OF THE STATE OF PENNSYVANIA,

                                                                      Appellant,
                                  V.

                      KEVIN ROBERTS, et al,
                                                          Appellees.
____________________________________________________________

             IDENTITY OF PARTIES & COUNSEL
____________________________________________________________

1.   The Insurance Company of the State of Pennsylvania – Appellant

2.   Loren R. Smith – Counsel for Appellant
     State Bar No. 18643800
     Kelly & Smith, P.C.
     4305 Yoakum Blvd.
     Houston, Texas 77006
     (713) 861-9900 - Telephone
     (713) 861-7100 - Facsimile
     lsmith@ksmpc.com

3.   Kevin Roberts – Appellee

4.   Jason A. Itkin – Counsel for Kevin Roberts
     State Bar No. 24032461
     Arnold & Itkin
     6009 Memorial Drive
     Houston, Texas 77007
     (713) 222-3800 - Telephone
     (713) 222-3850 – Facsimile

5.   Exxon Mobil Corporation – Appellee

6.   Mike Morris – Counsel for Exxon Mobil Corporation
     State Bar No. 14495800
     Tekell, Book, Allen & Morris, L.L.P.
     1221 McKinney, Suite 4300
     Houston, Texas 77010-2010

                                  ii
                                  --
(713) 222-9542 - Telephone
(713) 655-7727 – Facsimile




                             iii
                             --
                                               TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL...................................................................... ii, iii

TABLE OF CONTENTS ................................................................................................... iv

INDEX OF AUTHORITIES ............................................................................................... v

STATEMENT OF THE CASE .......................................................................................... ix

ISSUES PRESENTED FOR REVIEW ............................................................................... x

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENT .................................................................................. 4

ARGUMENT....................................................................................................................... 6

ISSUE 1: . ........................................................................................................................... 6

          The trial court erred in holding that ICSP’s worker’s compensation subrogation claims
          were waived, as the waiver of subrogation provisions only apply to liabilities assumed
          by Savage. As Savage was not obligated to indemnify Exxon for this accident, the
          waiver does not apply

ISSUE 2: . ......................................................................................................................... 27

          Even if there is an enforceable waiver of subrogation in favor of Exxon, the trial court
          erred in holding that ICSP’s right to assert that Roberts’ and Munoz’s third-party
          recovery constituted an advance against future benefits was also waived

ISSUE 3: .. ........................................................................................................................ 30

          Exxon’s affidavit of T. Lynn Henagan cannot be any basis for affirming the trial
          court’s summary judgment

PRAYER FOR RELIEF .................................................................................................... 34

CERTIFICATE OF SERVICE .......................................................................................... 34

CERTIFICATE OF COMPLIANCE AND WORD COUNT ........................................... 35


                                                                  iv
                                                                  --
APPENDIX........................................................................................................................ 36

                                              INDEX OF AUTHORITIES

Cases

Am. Risk Funding Ins. Co. v. Lambert, 59 S.W.3d 254, 259 (Tex. App.—Corpus Christi
 2001, pet.denied)............................................................................................................ 31

Approach Operating, LLC v. Resolution Oversight Corp., 2012 Tex. App. LEXIS 5437,
  at 7 (Tex. App. Austin July 3, 2012, no pet).................................................................... 8

Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660 (Tex. 2008)........ 16

Aubris Resources LP v. St. Paul Fire & Marine Insurance Co., 566 F.3d 483 (5th Cir.
  2009) .............................................................................................................................. 17

Capitol Aggregates, Inc. v. Great American Ins. Co., 408 S.W.2d 922, 923-24 (Tex.
  1966) .............................................................................................................................. 27

Chambers v. Texas Employers Ins. Assoc., 693 S.W.2d 648 (Tex. App. 1985, writ ref'd
  n.r.e.) .............................................................................................................................. 30

Chevron U.S.A. v. Cigna, No. 09-97-00032-CV, 1998 Tex. App. LEXIS 5043, 1998 WL
  472501, at *3-4 (Tex. App.--Beaumont Aug. 13, 1998, pet. denied) .............................. 7

Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) ................................ 33

Deepwater Horizon, 2015 Tex. LEXIS 141 (Tex. 2015)(emphasis added) ...................... 14

Delaney v. University of Houston, 835 S.W.2d 56, 58 (Tex. 1992) .................................. 34

Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) ............. 25

Employers Casualty Company v. Henager, 852 S.W.2d 655, 659 (Tex.App.—Dallas
 1993, writ den’d)............................................................................................................ 27

Energy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., 236 S.W.3d 190, 191 (Tex.
  2007) .............................................................................................................................. 21

Enserch Corp. v. Parker, 794 S.W.2d 2, 7 (Tex. 1990) .................................................... 21


                                                                    v
                                                                   --
Cases (con't)

GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 307 (Tex. 2006)
 ........................................................................................................................................ 10

Hartford Accident & Indem. Co. v. Buckland, 882 S.W.2d 440, 444–56 (Tex.App.—
 Dallas 1994, writ denied);.............................................................................................. 31

Home Indemnity Co. v. Pate, 814 S.W.2d 497 (Tex.App.-Houston[1st Dist.] 1991, no
 writ)................................................................................................................................ 27

Houston General Ins. Co. v. Campbell, 964 S.W.2d 691, 695 (Tex.App.—Corpus Christi
 1998, review den’d) ....................................................................................................... 28

Ischy v. Twin City Fire Ins. Co., 718 S.W.2d 885, 888 (Tex. App. Austin 1986, writ ref’d
  n.r.e.) .............................................................................................................................. 30

Jackson v. Land & Offshore Services, Inc., 855 F.2d 244 (5th Cir. 1988) ........................ 31

Kelly v. Red Fox Cos. of New Iberia, Inc., 123 Fed. Appx. 595 (5th Cir. 2005)............... 31

Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 355 (Tex. 2000) ........... 7

Ken Petroleum Corp. v. Questor Drilling Corp., 976 S.W.2d 283, 290 (Tex. App. Corpus
  Christi 1998) .................................................................................................................. 12

Ledig v. Duke Energy Corp., 193 S.W.3d 167, 178-79 (Tex.App.—Houston[1st Dist.]
  2006, no pet.)(citing Gonzalez v. United Carpenters & Joiners, 93 S.W.3d 208, 211
  (Tex.App.—Houston[14th Dist.] 2002, no pet.))............................................................ 34

Liberty Ins. Corp. v. SM Energy, 2012 U.S. Dist. LEXIS 174069 (S.D. Tex. Dec. 7, 2012)
  ........................................................................................................................................ 23

Nicklos Drilling Co. v. Cowart, 907 F.2d 1552 (5th Cir. 1990) ........................................ 31

Pasadena Refining System, Inc. v. McCraven, Nos. 14-10-00837-CV, 14-10-00860-CV,
  2012 Tex. App. LEXIS 3823, 2012 WL 1693697 (Tex. App.--Houston [14th Dist.]
  May 15, 2012, pet. dism'd by agr.)................................................................................. 17

Performance Ins. Co. v. Frans, 902 S.W.2d 582, 585 (Tex.App.---Houston [1st Dist.]
  1995, writ denied) .......................................................................................................... 28


                                                                     vi
                                                                    --
Cases (con't)

Petro-Weld, Inc. v. Luke, 619 F.2d 418 (5th Cir. 1980) ..................................................... 31

Prewitt and Sampson v. City of Dallas, 713 S.W.2d 720, 722 (Tex.App.-Dallas 1986, writ
  ref’d n.r.e.) ..................................................................................................................... 27

Reliance Ins. Co. v. Hibdon, 333 S.W.3d 364 (Tex. App.--Houston [14th Dist.] 2011, pet.
  den’d) ............................................................................................................................... 8

State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993) (plurality
  opinion) .......................................................................................................................... 33

Tesoro Petroleum Corp. v. Nabors Drilling United States, 106 S.W.3d 118, 133-134
  (Tex. App.-Houston[1st Dist.] 2002, writ den’d). ......................................................... 20

Texas Mutual Ins. Co. v. Ledbetter, 251 S.W.3d 31, 38-39 (Tex. 2008)........................... 27

Texas Workers’ Compensation Insurance Fund v. Knight, 61 S.W.3rd 91 (Tex.App.—
  Amarillo 2001, no pet.) .................................................................................................. 24

Trahan v. Liberty Mut. Ins. Co., 571 Fed. Appx. 319 (5th Cir. Tex. 2014) ........................ 2

Travelers Insurance Company v. Seidel, 705 S.W.2d 278, 281 (Tex.App.-San Antonio
  1986, writ dism’d).......................................................................................................... 28

Statutes

Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901–950 ................... 30

28 TEX. ADMIN. CODE § 21.202 (West 2015)................................................................ 26

TEX. REV. CIV. STAT. ANN. art. 8306, § 3(d)(Vernon Supp. 1989)(emphasis added) 22

Tex. Rule of Civ. Proc. 166a(c)........................................................................................... 2

Tex. Rule of Civ. Proc. 166a(f) ......................................................................................... 33

Tex. Rule of Civ. Proc. 94 ................................................................................................. 29

Texas Labor Code Chapter 417 ............................................................................................ 6


                                                                   vii
                                                                   --
                                  NO. 01-15-00453-CV

       THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA,

                                                                                 Appellant,

                                            V.

                                KEVIN ROBERTS, et al,

                                                                                 Appellees.

       ____________________________________________________________

                           APPELLANT’S BRIEF
       ____________________________________________________________

TO THE HONORABLE COURT OF APPEALS OF THE FIRST SUPREME JUDICIAL
DISTRICT:

       Appellant, The Insurance Company of the State of Pennyslvania (“ICSP"), submits

this brief in appeal of the lower court's order and judgment rendered in favor of Appellees,

KEVIN ROBERTS (“Roberts”) and EXXON MOBIL CORPORATION (“Exxon"). This

appeal is from the 165th District Court of Harris County, Texas, Cause No. 2013-03033, Hon.

Jeff Shadwick presiding, in which Roberts was the Plaintiff, Exxon was the Defendant and

Third-Party Plaintiff, and ICSP was the Third-Party Defendant and Cross-Plaintiff.




                                            viii
                                            --
                              STATEMENT OF THE CASE

       Roberts filed suit against Exxon in a case assigned to the 165th District Court of Harris

County. The claims were for personal injuries sustained from an explosion and discharge of

hot water on January 12, 2013 on premises owned and controlled by Exxon. ICSP was the

worker’s compensation carrier for Savage. ICSP has paid and continues to pay workers’

compensation medical and indemnity benefits to or on behalf of Roberts and Munoz. Around

the time it reached a settlement with Roberts, Exxon joined ICSP as a third-party defendant

to Roberts’ lawsuit, on a declaratory judgment claim. The case was subsequently removed

and then remanded by the federal court. Exxon thereafter settled the claims of Munoz.

Appellants and Munoz refused to honor the subrogation claims of ICSP, contending ICSP

had waived its subrogation rights. ICSP pleaded cross-claims against Appellants for

subrogation and conversion, seeking to recover reimbursement of the amount of benefits paid

and a credit against future benefits.

       ICSP and Appellants filed cross-motions for summary judgment pertaining to the

waiver issues. The sitting judge of the 165th District Court, the Hon. Elizabeth Ray, denied

Appellants’ motion for summary judgment on January 20, 2015. Shortly thereafter, Judge

Ray stepped down from the bench. Exxon thereafter filed a motion for reconsideration,

which was heard by the sitting judge of the 55th District Court, the Hon. Jeff Shadwick. On

April 15, 2015, Judge Shadwick granted the motion for rehearing, and entered a final




                                              ix
                                              --
summary judgment in favor of Appellants on May 11, 2015, that ICSP take nothing on its

claims for subrogation and for a credit against future benefits.

       On May 13, 2015, ICSP timely filed its notice of appeal. ICSP seeks an order from

this Court reversing the trial court’s summary judgment that ICSP take nothing on its

subrogation claims, and remanding the case to the trial court for a new trial on ICSP’s claims.

                         ISSUES PRESENTED FOR REVIEW
ISSUE 1:

       The trial court erred in holding that ICSP’s worker’s compensation subrogation claims
       were waived, as the waiver of subrogation provisions only apply to liabilities assumed
       by Savage. As Savage was not obligated to indemnify Exxon for this accident, the
       waiver does not apply.

ISSUE 2:

       Even if there is an enforceable waiver of subrogation in favor of Exxon, the trial court
       erred in holding that ICSP’s right to assert that Roberts’ and Munoz’s third-party
       recovery constituted an advance against future benefits was also waived.

ISSUE 3:

       Exxon’s affidavit of T. Lynn Henagan cannot be any basis for affirming the trial
       court’s summary judgment.




                                              x
                                              --
                               STATEMENT OF FACTS

Legend: “CR” denotes Clerk’s Record.

       On January 12, 2013, Roberts and Arturo Munoz (“Munoz”) were working for Savage

Services on a tank in the flexicoker unit of Exxon’s Baytown refinery. (CR.6; CR.79,

Exhibit 9 (Appendix “D”)) 1 While on the process of working on that tank, there was an

explosion which caused a discharge of hot water. (CR.6) As a result, Roberts and Munoz

sustained severe burns and other personal injuries. Id. Pursuant to a policy of insurance

with Savage, ICSP was called upon to pay workers’ compensation medical and indemnity

benefits to or on behalf of Roberts and Munoz. (CR.217; 79, Exhibit 9 (Appedix “D”)) As of

March 6, 2015, ICSP had paid benefits totaling $115,189.64 on behalf of Roberts, and

$571,296.88 on behalf of Munoz, as a result of the accident the subject of this lawsuit.

(CR.164, Ex.4 (Appendix “E”))

       This lawsuit was filed by Roberts against Exxon on January 16, 2013. (CR.5) In

March of 2014, Exxon filed a motion for continuance of the March 31, 2014 trial setting and

a motion for leave to add ICSP as a third-party defendant. (CR.27) Both motions were

granted. (CR.32) On or about March 28, 2014, Exxon reached a settlement with Roberts of

his personal injury claims asserted in this lawsuit, in a confidential amount. (CR.53) After

ICSP filed its answer, Exxon filed a motion for summary judgment against ICSP on its

waiver defense, and set it on the Court’s submission docket for June 30, 2014. (CR.86)


1 The district clerk failed to include the summary judgment exhibits to the requested
documents in the clerk’s record. ICSP is concurrently requesting a supplemental record with
these documents. Relevant omitted portions of the Exhibits are made part of the Appendix.

                                             1
                                            --
Exxon filed a counterclaim for indemnity against Roberts pertaining to his indemnity

obligations under the settlement agreement, on June 13, 2014. (CR52) ICSP removed the case

to federal court on June 13, 2014 based upon diversity jurisdiction. (CR.280) The Hon.

Judge Nancy Atlas originally denied remand of a related state court case filed in the 125th

District Court by Exxon against ICSP, which had been removed by co-Defendant Starr

Indemnity & Liability Insurance Company, one of Exxon’s general liability carriers. (CR.87)

However, based upon a subsequent ruling by the Fifth Circuit in Trahan v. Liberty Mut. Ins.

Co., 571 Fed. Appx. 319 (5th Cir. Tex. 2014), Judge Atlas reconsidered and remanded the

Starr Indemnity case, and on the same day remanded this case as well. Id. After remand, the

case was set for trial on the September 2, 2014 two-week docket, but was not reached. Id.

       In September 2014, Exxon reached a settlement with Roberts’ co-employee, Munoz

on his personal injury claims, in a confidential amount. (CR.86.163.180) Munoz was not

represented by counsel. (CR.163; CR.165; Exhibit 5, p.12 (Appendix “F”)) As part of this

settlement, Exxon agreed to indemnify Munoz for any claim by ICSP related to the settlement,

and to be responsible for Munoz’s future worker’s compensation benefits should ICSP receive

a statutory credit against future benefits. Id.

       ICSP filed a motion for partial summary judgment against Appellants on the waiver

issue on September 19, 2014. (CR.65) Exxon filed an amended motion for summary

judgment against ICSP the waiver defense on September 23, 2014. (CR.77) The motion was

a traditional motion for summary judgment on Appellant’s affirmative defense of waiver

pursuant to Tex. Rule of Civ. Proc. 166a(c), not a no-evidence motion pursuant to Tex. Rule


                                                  2
                                                  --
of Civ. Proc. 166a(i). Id. Roberts filed a joinder with Exxon’s motion against ICSP on

September 24, 2014. (CR.190) The motions were set on the submission docket for October

13, 2014. (CR.83) Exxon also filed a motion to compel the depositions of the organizational

representatives of Savage and ICSP. (CR.98)

       As admitted by Exxon’s counsel in open court in a hearing on October 20, 2014 in the

insurance coverage case which was pending in the 125th District Court,2 Exxon accepted

responsibility for this accident:

               MR. MORRIS: Yes, your Honor. I think it’s important that the Court have a
               overview. January 12th 2013, there is an accident out at the Baytown refinery. A
               tremendously hot water was dumped on two contractors Kevin Roberts and
               Arturo Munoz. Now both Mr. Roberts and Mr. Munoz were employees of
               Savage.
               ....
                        That accident happens and Mr. Roberts within a few days hires Jason
               Itkin who files a suit. That suit lands in the 165th. It’s against ExxonMobil.
               ExxonMobil believes that it is an additional insurer on policies issued to Savage
               and makes that claim. ExxonMobil also investigates the accident and determines
               that it is responsible for the injuries to these men.

                     Mr. Munoz elects not to hire a lawyer. He represents himself. Mr. Itkin
               over here aggressively prosecutes the case against ExxonMobil, requests for
               production, inspections of the area and it is clear that ExxonMobil feels
               responsible for what happened to these two men.

(CR.165; Exhibit 5, p.11-12 (Appendix “F”))

       On February 19, 2015, the Hon. Judge Elizabeth Ray issued an order denying

Appellants’ motion for summary judgment against ICSP. (CR.158) On February 19, 2015,

Judge Ray issued an order denying Exxon’s motion to compel the depositions of the


2 The coverage case was removed for a second time by Defendant Starr Indemnity &
Liability Insurance Company on June 4, 2015.

                                               3
                                              --
organization representatives of Savage and ICSP. (CR.160) Judge Ray never ruled on

ICSP’s motion for partial summary judgment. Shortly thereafter, Judge Ray stepped down

from the bench. Exxon thereafter filed a motion for reconsideration, which was heard by the

sitting judge of the 55th District Court, the Hon. Jeff Shadwick. (CR.212) On April 15,

2015, Judge Shadwick granted the motion for rehearing, entering a memorandum order and

opinion.    (CR.241) Judge Shadwick entered a final summary judgment in favor of

Appellants on May 11, 2015, that ICSP take nothing on its claims for subrogation and for a

credit against future benefits. (CR.268) As reflected in the final summary judgment, Exxon

non-suited its cross-claim against Roberts for indemnity without prejudice. (CR.269)

       On May 13, 2015, ICSP timely filed its notice of appeal. (CR.270) ICSP seeks an

order from this Court reversing the trial court’s summary judgment that ICSP take nothing on

its subrogation claims, and remanding the case to the trial court for a new trial on ICSP’s

claims.

                           SUMMARY OF THE ARGUMENT

       ICSP appeals from the trial court’s order granting Appellants’ motion for summary

judgment, denying its right to recover past benefits paid to Roberts and Munoz, and denying

its credit against future benefits.

       ICSP’s first issue asserts that the trial court erred in holding that ICSP’s worker’s

compensation subrogation claims were waived. The one sentence in the insurance clause

requiring a waiver of subrogation expressly limits the waiver to liabilities assumed by

Savage. Case law from the Texas Supreme Court and this Court interpreting this limitation


                                             4
                                            --
look solely to the indemnity clause to determine if the limitation applies. As there is no

dispute that Exxon accepted responsibility for this accident and Savage was not obligated to

indemnify Exxon for this accident, the waiver does not apply. As Appellants settled without

honoring ICSP’s subrogation lien, they are liable for the amount of the lien under a cause of

action for conversion.

       ICSP’s second issue asserts that even if there is an enforceable waiver of subrogation

in favor of Exxon, the trial court erred in holding that ICSP’s right to assert that Roberts’ and

Munoz’s third-party recovery constituted an advance against future benefits was also waived.

The Texas Legislature has recognized that a carrier’s right of subrogation is distinct from its

right to treat a third-party recovery by an injured worker as an advance against future

benefits. A finding that a waiver in favor of Exxon also waived ICSP’s right to assert a

statutory credit against future benefits to Roberts and Munoz would be contrary to the

provisions of the waiver endorsement, which provides that the agreement shall not operate

directly or indirectly to benefit anyone not named in the Schedule.

       In the trial court’s memorandum order and opinion, it stated that it was not

considering Exxon’s summary judgment affidavits, and as such did not need to rule on

ICSP’s objections. In ICSP’s third issue, it asserts that Exxon’s affidavit of T. Lynn

Henagan cannot be the basis for affirming the trial court’s summary judgment. As the trial

court expressly did not consider the affidavits, ICSP would submit that they cannot be the

basis for affirming the trial court’s summary judgment. However, to the extent that ICSP is

incorrect, ICSP submits that any consideration of Exxon’s affidavit of T. Lynn Henagan over


                                               5
                                               --
ICSP’s objections would have been erroneous, that the trial court erred in not sustaining the

objections, and the evidence should not be considered on appeal.

       This Court should reverse the trial court’s summary judgment, and remand the case to

the trial court for a new trial on ICSP’s claims.

                                        ARGUMENT

ISSUE 1: The trial court erred in holding that ICSP’s worker’s compensation
subrogation claims were waived, as the waiver of subrogation provisions only apply to
liabilities assumed by Savage. As Savage was not obligated to indemnify Exxon for this
accident, the waiver does not apply.

                  ARGUMENT AND AUTHORITIES FOR ISSUE 1:

       Texas Labor Code Chapter 417 provides a worker’s compensation carrier a “first

money” right of subrogation against any third party which may be liable for a compensable

injury. However, Appellants asserted that ICSP has waived its subrogation rights, and refused

to honor ICSP’s subrogation claim when they settled their claims last year. Additionally,

Exxon settled with Munoz, who was unrepresented, also without honoring ICSP’s subrogation

claim. As part of this settlement, Exxon agreed to indemnify Munoz for any claim by ICSP

related to the settlement, and to be responsible for Munoz’s future worker’s compensation

benefits should ICSP receive a statutory credit against future benefits. Although the settlement

amounts were confidential, it is undisputed that these settlements were well in excess of the

amount of ICSP’s subrogation claim. (CR.86.163.180)




                                               6
                                              --
A.     Waiver requirements.

       ICSP’s insurance policy contains a Blanket Waiver of Subrogation Endorsement,

which provides that ICSP shall waive its subrogation rights for limited occurrences. (CR.78,

Exhibit 3, p.8 (Appendix “G”)) In particular, the endorsement provides in part:

       We have the right to recover our payments from anyone liable for an injury covered by
       this policy. We will not enforce our right against the person or organization named in
       the Schedule, but this waiver applies only with respect to bodily injury arising out of the
       operations described in the Schedule where you are required by a written contract to
       obtain this waiver from us.

       This agreement shall not operate directly or indirectly to benefit anyone not named in
       the Schedule.

       ....

       (X)    Blanket waiver
              Any person or organization for whom the Named Insured has agreed by written
              contract to furnish this waiver.

This is standard form WC 42 03 04A, dated January 2000. Id. As noted by the clear language

of the endorsement, subrogation is only waived where Savage is required by a written contract

to obtain this waiver.

              Both sides agree that in order to have a valid waiver of subrogation, two
       conditions must be met. First, Lilly must obligate itself to a waiver pursuant to an
       underlying contract with Approach (here, the MSA), and second, it must obtain a
       separate endorsement from its insurance carrier waiving those rights. See, e.g.,
       Chevron U.S.A. v. Cigna, No. 09-97-00032-CV, 1998 Tex. App. LEXIS 5043, 1998
       WL 472501, at *3-4 (Tex. App.--Beaumont Aug. 13, 1998, pet. denied) (not
       designated for publication) (enforcing waiver of subrogation clause); see also Ken
       Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 355 (Tex. 2000) (noting
       subrogation waiver in underlying contract and separate endorsement, but holding
       insurer's claims were outside scope of waiver).




                                               7
                                               --
Approach Operating, LLC v. Resolution Oversight Corp., 2012 Tex. App. LEXIS 5437, at 7

(Tex. App. Austin July 3, 2012, no pet). The waiver in the written contract cannot be inferred,

but must be explicit.

       Approach contends the "express terms of the MSA" similarly required a waiver of
       subrogation. Unlike the cases discussed above, however, the MSA contains no
       explicit mention of subrogation. And Approach points to no authority indicating we
       may infer a waiver of subrogation. On the contrary, Texas courts require explicit
       waivers of subrogation and will not read them into contracts. For example, in
       Reliance Ins. Co. v. Hibdon, the court refused to find a waiver of subrogation in favor
       of a company's employee when the clause only explicitly mentioned the employer.

Id, at 14 (Tex. App. Austin July 3, 2012, no pet)(emphasis added)(citing Reliance Ins. Co. v.

Hibdon, 333 S.W.3d 364 (Tex. App.--Houston [14th Dist.] 2011, pet. den’d)). In this case,

Savage was not required to secure a waiver of subrogation under the terms of its agreement

with ExxonMobil; as such, ICSP’s subrogation rights were not waived.

B.     The Exxon contract with Savage does not trigger the blanket waiver
       endorsement in ICSP’s policy.

       Contrary to Appellants’ assertions, Exxon’s contract with Savage does not require a

waiver of subrogation based upon the facts of this case. The paragraph cited by Appellants

in support of their waiver contention, section 14(a), provides in relevant part:

       14. Insurance

       (a) Coverages.

       ...

       Notwithstanding any provision of an Order to the contrary, [Savage’s] liability
       insurance policy(ies) described above shall: (i) cover [Exxon] as additional insureds in
       connection with the performance of Services; and (ii) be primary as to all other
       policies (including any deductibles or self-insured retentions) and self insurance
       which may provide coverage. [Savage] and its insurer(s) providing coverage in this

                                              8
                                              --
       Section shall waive all rights of subrogation and/or contribution against [Exxon] and
       its Affiliates to the extent liabilities are assumed by [Savage], except [Savage]
       expressly agrees not to cause itself or its insurer(s) to waive any rights of subrogation
       and/or contribution against [Exxon] and its Affiliates under any workers’
       compensation and employers’ liability insurance, or similar social insurance in
       accordance with law which may be applicable to those employees of [Savage], when
       [Exxon] elects to furnish or arrange same.

(CR.78, Exhibit 1,p.4 (Appendix “H”)) The provision of the waiver sentence limiting the

waiver “to the extent liabilities are assumed by [Savage]” limits the waiver of subrogation to

only those liabilities for which Savage is obligated to indemnify Exxon.

       In this case, the indemnity clause in fact obligates Exxon to indemnify Savage for

claims arising out of this accident, as the accident arose out of the negligence of Exxon, not

Savage:

       12. Third Party Indemnity. [Exxon] and [Savage] shall indemnify, defend, and
       hold each other harmless from all claims, demands, and causes of action asserted
       against the indemnitee by any third party (including, without limitation, [Exxon]’s and
       [Savage]’s employees) for personal injury, death, or loss of or damage to property
       resulting from the indemnitor’s negligence, Gross Negligence or Willful Misconduct.
        Where personal injury, death, or loss of or damage to property is the result of joint
       negligence, Gross Negligence or Willful Misconduct of [Exxon] or [Savage], the
       indemnitor’s duty of indemnification shall be in proportion to its allocable share of
       such joint negligence, Gross Negligence or Willful Misconduct. If either party is
       strictly liable under law, the other party’s duty of indemnification shall be in the same
       proportion that its negligence, Gross Negligence or Willful Misconduct contributed to
       the personal injury, death, or loss of damage to property for which a party is strictly
       liable. The term “negligence” in these General Terms and Conditions shall include
       active or passive negligence. “Gross Negligence” is defined by the law governing the
       Order; however, if such law does not define the term “gross negligence,” it means any
       act or failure to act (whether sole, joint or concurrent) which seriously and
       substantially deviates from a diligent course of action or which is in reckless disregard
       of or indifference to the harmful consequences. “Willful Misconduct” is defined by
       the law governing the Order; however, if such law does not define the term “willful
       misconduct,” it means and intentional disregard of good and prudent standards of
       performance or of any of the terms of the Order.


                                               9
                                              --
(CR.78, Exhibit 1,p.4 (Appendix “H”)) In particular, Roberts contended in this case that his

injuries were caused by the negligence and gross negligence of Exxon, not the negligence of

Savage.3 (CR.78, Exhibit 1,p.3) Additionally, as noted above, Exxon has admitted to

responsibility for this accident. Exxon has never contended that Savage was in any manner

negligent, nor even so much as even moved to designate Savage as a responsible third party,

in the course of over a year of litigation with Roberts. (CR.278-284;249-250) ISCP is

asserting subrogation for damages sustained by Roberts and Munoz in the accident the

subject of this lawsuit. Exxon assumed the liability for the accident and the damages

sustained by Roberts and Munoz, not Savage. As Savage did not agree in the contract to

assume the liabilities for this accident, the waiver of subrogation clause of the contract is not

triggered, and ICSP has therefore not agreed to waive its right of subrogation against Exxon.

C.     The waiver of subrogation endorsement only applies to the liability of Exxon
       which Savage agreed to assume via the indemnity provision.

       Appellants argue that the provision “to the extent liabilities are assumed by [Savage]”

includes the obligation to purchase worker’s compensation insurance, and therefore triggers

the waiver of subrogation obligation for any insurance Savage is required to secure.

Appellants argue that the insurance purchase obligation should fairly be categorized as a

“liability” in the context of this paragraph. Essentially, under this logic, the phrase is




3 In an analogous context, the eight-corners rule provides that when an insured is sued by a
third party, the liability insurer is to determine its duty to defend solely from terms of the
policy and the pleadings of the third-party claimant. See GuideOne Elite Ins. Co. v. Fielder
Rd. Baptist Church, 197 S.W.3d 305, 307 (Tex. 2006).

                                               10
                                               --
redundant, because if Savage assumes the “liability” to secure insurance, it automatically

assumes the “liability” to waive subrogation for that insurance.

       The Texas Supreme Court has recognized that a clause limiting the waiver provision

to liabilities assumed did not waive the carrier’s right of subrogation, when the corresponding

indemnity clause did not apply. See Ken Petroleum Co., et al v. Questor Drilling Corp., et

al, 24 S.W.3d 344 (Tex. 2000). In Ken Petroleum Co., the contract between Ken Petroleum

and Questor contained mutual indemnification clauses, where the parties were required to

indemnify each other for claims by their respective employees. The “Insurance” clause then

provided the following waiver clause: “For liabilities assumed hereunder by contractor

[Questor], its insurance shall be endorsed to provide that the underwriters waive their

right of subrogation against Operator. Operator [Ken Petroleum] will, as well, cause its

insurer to waive subrogation against Contractor for liability it assumes.”                Ken

Petroleum Co., 24 S.W.3d at 355. The Court of Appeals held the waiver was applicable:

“But in this case, KEN's policy provides that Underwriters expressly allowed for such

waiver. Appellants' argument that Underwriter's waiver of subrogation was limited only to

those situations in which KEN was required to indemnify Questor is without merit.” Ken

Petroleum Corp. v. Questor Drilling Corp., 976 S.W.2d 283, 290 (Tex. App. Corpus Christi

1998). However, the Texas Supreme Court reversed, finding that the waiver provision did

not apply to waive Ken Petroleum’s insurance carrier’s right of subrogation against Questor

for liability payments made to the family of a Questor employee killed on the job site:




                                              11
                                              --
               Questor's contentions are not well-founded. Ken Petroleum agreed to cause
       its underwriters to waive their subrogation rights only as to amounts Ken
       Petroleum might have to pay under its agreement to indemnify Questor. Ken
       Petroleum did not agree to indemnify Questor for injuries to or the death of Questor's
       employees. To the contrary, Questor agreed that it would indemnify Ken Petroleum if
       a Questor employee were injured or killed. The foregoing provision did not waive the
       rights of the Underwriters to enforce, as subrogees, the indemnity obligations Questor
       owed to Ken Petroleum.
            Questor next points to an endorsement to Ken Petroleum's policy with the
       Underwriters entitled "WAIVER OF SUBROGATION WHEN REQUIRED BY
       CONTRACT" which says:
                     It is agreed that, with respect to such insurance as is afforded by this
              Cover Note, the company waives any right of subrogation against the
              "principal" named below by reason of any payment made on account of injury,
              including death resulting therefrom or on account of property damage
              sustained by any person or entity while the assured is engaged in any of the
              operations described in the Schedule of this Cover Note.
                     "Principal" means any party to whom the named assured is contractually
              obligated to waive its legal rights of indemnification.
               Questor is not a party to the contract of insurance between Ken Petroleum and
       its Underwriters. Questor must look to its own contract with Ken Petroleum to
       determine what subrogation rights it may insist that Ken Petroleum require its insurers
       to waive. Sections 13 and 14.9 of the drilling contract require Ken Petroleum to cause
       its insurers to waive their subrogation rights only with regard to Ken Petroleum's
       agreement to indemnify Questor for the death of or injury to Ken Petroleum
       employees and certain others. The drilling contract does not require Ken Petroleum to
       cause its insurers to waive subrogation rights when they pay amounts that Questor
       should have paid under its agreement to indemnify Ken Petroleum. If Ken Petroleum
       is not contractually obligated to Questor to enforce a waiver of subrogation, Questor
       cannot insist that Ken Petroleum assert a waiver of subrogation when Ken Petroleum
       and the Underwriters both agree that the Underwriters stepped into Ken Petroleum's
       shoes by paying $ 450,000 to settle the Hemphill litigation.

Ken Petroleum Co., 24 S.W.3d at 355-56 (emphasis added). The Court in Ken Petroleum

recognized that Ken Petroleum had the obligation to secure insurance, yet did not consider

this obligation to be one of the “liabilities assumed.”



                                              12
                                              --
       Similarly, the Texas Supreme Court held earlier this year that an insurance obligation

dependent on “liabilities assumed” was only triggered if there is an enforceable indemnity

agreement. The following is the Court’s summary of its holdings:

              As to the first question, we hold that (1) the Transocean insurance policies
       include language that necessitates consulting the drilling contract to determine BP's
       status as an "additional insured"; (2) under the terms of the drilling contract, BP's
       status as an additional insured is inextricably intertwined with limitations on the
       extent of coverage to be afforded under the Transocean policies; (3) the only
       reasonable construction of the drilling contract's additional-insured provision is that
       BP's status as an additional insured is limited to the liabilities Transocean assumed
       in the drilling contract; and (4) BP is not entitled to coverage under the Transocean
       insurance policies for damages arising from subsurface pollution because BP, not
       Transocean, assumed liability for such claims. We therefore answer the first certified
       question in the negative, and based on our analysis of that issue, do not reach the
       second question.

In re Deepwater Horizon, 2015 Tex. LEXIS 141 (Tex. 2015)(emphasis added). The case

arose out of “the April 2010 explosion and sinking of the Deepwater Horizon oil-drilling rig,

which claimed eleven lives and resulted in subsurface discharge of oil into the Gulf of

Mexico at alarming rates for nearly three consecutive months.” The Court accepted a

certified question from the Fifth Circuit as to whether BP was entitled to coverage for

subsurface pollution under an additional insured endorsement of Transocean’s insurance

policy. The analysis and holding of the Court relevant to this case follows:

              In the Drilling Contract, BP and Transocean agreed to a "knock-for-knock"
       allocation of risk that is standard in the oil and gas industry. Among other indemnity
       provisions, Transocean agreed to indemnify BP for above-surface pollution
       regardless of fault, and BP agreed to indemnify Transocean for all pollution risk
       Transocean did not assume, i.e., subsurface pollution.

              Without limiting Transocean's indemnity obligations, the Drilling Contract
       further required Transocean to carry multiple types of insurance at its own expense.
       Among the required policies, Transocean was obliged to carry comprehensive general

                                             13
                                             --
liability insurance, including contractual liability insurance for the indemnity
agreement, of at least $10 million. Transocean was also charged with naming BP, its
affiliates, officers, employees, and a host of other related individuals and entities:

       as additional insureds in each of [Transocean's] policies, except Workers'
       Compensation for liabilities assumed by [Transocean] under the terms of
       [the Drilling] Contract. (Emphasis added.)

       To the extent the terms of the Drilling Contract are incorporated into
Transocean's insurance policies, the proper construction of the emphasized portion of
the foregoing additional-insured provision becomes central to the resolution of the
coverage issue before us.

....

        After BP made a demand for coverage, the Insurers sought a declaration that
BP would not be entitled to additional-insured coverage for subsurface-pollution
claims arising from the Deepwater Horizon incident because the Drilling Contract
limits the additional-insured obligation to "liabilities assumed by [Transocean]
under the terms of [the Drilling] Contract."

....

        There is no dispute that (1) BP is an additional insured under the Transocean
policies for some purposes, (2) the Drilling Contract is an Insured Contract as defined
by the insurance policies, and (3) the Insurers are not parties to the Drilling Contract.
The parties, however, join issue regarding whether and to what extent the policies
incorporate provisions in the Drilling Contract that may limit BP's status as an
additional insured.

....

In sum, BP contends that its worldwide operations are automatically covered for
all "liability imposed by law," including subsurface pollution from the Deepwater
Horizon incident, because it is undisputed that (1) the Drilling Contract is an "Insured
Contract," (2) the Drilling Contract obligates Transocean to provide additional-
insured coverage, (3) BP is thereby an "Insured" as that term is specially defined in
the insurance policies, and (4) no limitations on the scope of coverage are expressly
included in the policies.

....

                                       14
                                       --
        As Urrutia demonstrates, an insurance policy may incorporate an external limit
on additional-insured coverage. In such cases, the external limit is, in effect, an
endorsement to the insurance policy that "suppl[ies] the limits of coverage and
extend[s] those benefits to the customer identified therein as accepting the [insured's]
offer of insurance." Id. at 443. By tying additional-insured coverage to the terms of an
underlying agreement, the parties procure only the coverage the insured is
contractually obligated to provide, thereby minimizing the insurer's exposure under
the policy and the named insured's premiums. See id. ("The endorsement . . . allowed
[the insured] to determine in the rental contracts themselves which customers would
be insured and the amount of their respective coverage.").

....

Applying the only reasonable construction of the additional-insured provision, we
conclude that BP is an additional insured only as to liabilities assumed by
Transocean under the Drilling Contract and no others. Because Transocean did
not assume liability for subsurface pollution, Transocean was not "obliged" to
name BP as an additional insured as to that risk. Because there is no obligation to
provide insurance for that risk, BP lacks status as an "Insured" for the same.

....

        Second, BP's argument conflates duty with scope. We have long recognized
that the contractual duties to indemnify and to maintain insurance may be separate and
independent.n17 Consequently, a statute invalidating an indemnification clause does
not relieve a party of a separate duty to obtain insurance. See Getty, 845 S.W.2d at
804; see also Tex. Civ. Prac. & Rem. Code § 127.005 (exempting from the Texas
Oilfield Anti-Indemnity Act certain indemnity agreements supported by liability
insurance furnished by the indemnitor). But simply because the duties to indemnify
and maintain insurance may be separate and independent does not prevent them from
also being congruent; that is, a contract may reasonably be construed as extending the
insured's additional-insured status only to the extent of the risk the insured agreed to
assume.

       FOOTNOTES

       n17 See ATOFINA, 256 S.W.3d at 670 ("We disapprove the view that this kind
       of additional insured requirement fails to establish a separate and independent
       obligation for insuring liability." (emphasis added)); Getty Oil Co. v. Ins. Co.
       of N. Am., 845 S.W.2d 794, 804 (Tex. 1992) ("[T]he additional insured
       provision of the contract does not support the indemnity agreement, but rather
       is a separate obligation." (emphasis added)).

                                       15
                                       --
              Such is the case here. The Drilling Contract required Transocean to name BP
      as an additional insured only for the liability Transocean assumed under the contract.
      Accordingly, Transocean had separate duties to indemnify and insure BP for certain
      risk, but the scope of that risk for either indemnity or insurance purposes extends only
      to above-surface pollution. Article 20.1 of the Drilling Contract, on which BP relies,
      provides that Transocean's duty to maintain insurance does not alleviate its duty to
      indemnify BP. This merely confirms our holding in Getty Oil Co. v. Insurance Co. of
      North America that indemnity and insurance clauses can impose separate and
      independent duties. 845 S.W.2d at 804. Article 20.1 does not provide that the scope of
      the indemnity and insurance duties are different. Instead, the additional-insured clause
      confirms they are congruent regarding the risk at issue by requiring Transocean to
      insure BP "for liabilities assumed by [Transocean] under the terms of this
      Contract." Because the scope of Transocean's duty to indemnify governs the
      scope of Transocean's duty to insure BP, we decline BP's request to ignore the
      indemnity obligation when construing the Drilling Contract.

             In sum, we answer the first certified question in the negative because BP is not
      covered for the damages at issue by virtue of the limitations on the scope of its
      additional-insured status imposed in the Drilling Contract and incorporated into the
      Transocean insurance policies by reference.

Id, at 5 – 40 (emphasis added). The analysis in determining whether an additional insured

endorsement is triggered under Deepwater Horizon is no different that the analysis in this

case as to whether a waiver of subrogation endorsement is triggered in this case. Indeed,

Appellants recognize that these endorsements are analogous, arguing in a summary judgment

response: “The language at issue in Pasadena Refining, while it did apply to additional

insured coverage rather than a waiver of subrogation issue, is undeniably similar to the

language found in the ICSP Endorsement. Both the ICSP Policy and the Pasadena Refining

policy provide for either a waiver of subrogation or additional insured coverage when

required by contract.” (CR.206) As did BP in Deepwater Horizon, Appellants rely heavily

on the opinions of Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660


                                             16
                                             --
(Tex. 2008), Aubris and Pasadena Refining.4 Appellants make the similar argument that

ATOFINA, Aubris and Pasadena Refining support their contention that “the insurance

requirement which Savage assumed liability for in the Exxon-Savage contract, including

liability to secure a workers’ compensation insurance policy containing waiver of workers’

compensation subrogation rights in favor of Exxon, is separate and independent and not

remotely interconnected with any contractual indemnity provisions contained in the

ExxonMobil-Savage contract.” (CR.197) The Court in Deepwater Horizon distinguished

these cases, holding: “But simply because the duties to indemnify and maintain insurance

may be separate and independent does not prevent them from also being congruent; that is, a

contract may reasonably be construed as extending the insured's additional-insured status

only to the extent of the risk the insured agreed to assume.” Deepwater Horizon, at 39.

       Appellants argue: “Here, all the necessary language to determine whether the waiver

of subrogation applies is contained in paragraph 14 of the Savage contract. One does not

have to look to the indemnity clause in paragraph 12.” (CR.260) To the contrary, as this

case involves damages sustained by a third parties to the contract (Roberts and Munoz), the

indemnity clause must necessarily be referenced to determine whether Exxon or Savage

assumed liability for those damages. The need to reference the indemnity clause is supported

by paragraph 14(b) of the contract, which provides in part: “Supplier’s insurance shall apply to


4 “In addition to ATOFINA, BP relies on Aubris Resources LP v. St. Paul Fire & Marine
Insurance Co., 566 F.3d 483 (5th Cir. 2009), and Pasadena Refining System, Inc. v.
McCraven, Nos. 14-10-00837-CV, 14-10-00860-CV, 2012 Tex. App. LEXIS 3823, 2012 WL
1693697 (Tex. App.--Houston [14th Dist.] May 15, 2012, pet. dism'd by agr.), as supporting
a construction of the insurance policies that does not permit consideration of the Drilling

                                              17
                                              --
Supplier’s indemnity and defense obligations under the Order except, with respect to Services

subject to the law of the State of Texas, each party agrees to maintain the insurance and limits

as specified in this Section or self insurance during the duration of this Agreement in support of

the mutual indemnifications, if any, agreed to in Sections 11, 12, and 13 above.” (CR.78;

Exhibit 1, p.4 (Appendix “H”)) 5 Under Appellants’ logic, the Court in Deepwater Horizon

could have held that Transocean’s obligation to secure an additional insured endorsement in

favor of BP was a “liability assumed” under the agreement, rendering BP an additional

insured irrespective of whether Transocean was required to indemnify BP for a particular

risk. BP in fact argued that it was “automatically covered for all ‘liability imposed by law,’ .

. . because . . .(2) the Drilling Contract obligates Transocean to provide additional-insured

coverage. . . .” Deepwater Horizon, at 12-13. This rejected argument mirrors Appellants’

argument in this case that the obligation to secure worker’s compensation insurance is one of

the “liabilities assumed” by Savage. Quite simply, the Court’s holding in Deepwater Horizon

forecloses Appellants’ argument that the waiver of subrogation clause in its contract with

Savage is independent of the indemnity clause.

       This Court, in following Ken Petroleum, has also applied the term “liabilities

assumed” solely to the indemnity requirement, holding that while there was a waiver of



Contract.” Deepwater Horizon, at 12.
5 Section 11 is an additional indemnity clause, which covers damages to Savage’s tools,
equipment and rented items, and damages to Exxon’s adjacent property. Section 13 is an
additional indemnity clause for each party’s gross negligence and willful misconduct.
Notably, Roberts pleaded the accident was the result of the gross negligence of Exxon, a
claim for which Exxon agreed to “bear full responsibility” under Section 13. CR.13,Ex.4,p.3

                                               18
                                               --
subrogation for claims which the carrier’s insured assumed liability under the indemnity

agreement, there was no waiver for claims for which there was no indemnity requirement.

       In this case, the indemnity agreement between Nabors and Tesoro plainly limits the
       parties' waiver of subrogation to the liabilities each assumed under the drilling
       contract. Nabors did not assume liability for losses to its rig caused by Tesoro's gross
       negligence. Tesoro remained liable for such losses. Nabors, however, recovered its
       losses from its insurance carrier, Zurich. Therefore, if Nabors were to bring suit
       against Tesoro to recover for the loss of its rig, it would be seeking a double recovery
       for the same loss from both Zurich and Tesoro. We hold, therefore, that Zurich, in
       subrogation to Nabors's rights against Tesoro for gross negligence, is not barred from
       seeking recovery from Tesoro of the insurance proceeds Zurich paid Nabors.

              We overrule Zurich's issue three to the extent it contends that Zurich has a right
       of subrogation to those claims against Tesoro as to which Nabors assumed liability
       under the indemnity agreement in the drilling contract and waived its insurers'
       subrogation rights. We sustain issue three to the extent it contends that Zurich is not
       barred from bringing suit against Tesoro in subrogation to Nabors's claims for losses
       to Nabors's due to Tesoro's gross negligence or willful misconduct, which are beyond
       the scope of the indemnity agreement.

Tesoro Petroleum Corp. v. Nabors Drilling United States, 106 S.W.3d 118, 133-134 (Tex.

App.-Houston[1st Dist.] 2002, writ den’d).6 It is important to note that in Ken Petroleum,

the Court held that Ken Petroleum was entitled to subrogate against Questor for its liability

payments and defense costs, even though it had agreed in the contract to secure its own

coverage for its own liability to the injured worker.7 As such, the Court did not apply the

waiver of subrogation to Ken Petroleum’s insurance by the mere fact that it had contractually

agreed to secure this coverage. This is, however, what Appellants have argued – that the


6 As noted above, Roberts pleaded gross negligence claims in this lawsuit, as well. (CR.7)
7 Similarly, in Tesoro Petroleum, “Nabors obtained a certificate of insurance listing Zurich
as its insurer for damage to Nabor’s drilling rig.” Tesoro Petroleum Corp. v. Nabors Drilling
United States, 106 S.W.3d at 122. After the blowout, Zurich sought subrogation against
Tesoro for the damage to the rig.

                                              19
                                              --
mere fact that Savage agreed to secure worker’s compensation insurance under the policy

constitutes a per se agreement to waive subrogation under that policy. Indeed, the very

Pasadena Refining and ATOFINA cases cited by Appellants would suggest that the

contractual assumption of liability is separate from the contractual obligation to secure

insurance.

       Texas Labor Code § 417.004, which is a section of the Chapter which addresses the

worker’s compensation carrier’s subrogation rights, also uses the liabilities assumed language

in describing an indemnity obligation. In particular, this section provides:

               Sec. 417.004. EMPLOYER LIABILITY TO THIRD PARTY. In an action for
       damages brought by an injured employee, a legal beneficiary, or an insurance carrier
       against a third party liable to pay damages for the injury or death under this chapter
       that results in a judgment against the third party or a settlement by the third party, the
       employer is not liable to the third party for reimbursement or damages based on the
       judgment or settlement unless the employer executed, before the injury or death
       occurred, a written agreement with the third party to assume the liability.
       Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

The Texas Supreme Court has interpreted the “written agreement with the third party to

assume the liability” under Section 417.004 to mean an indemnity agreement. See Energy

Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., 236 S.W.3d 190, 191 (Tex. 2007)(”The

new Act referred instead to an agreement ‘executed . . . with the third party’ seeking

indemnity.”); Enserch Corp. v. Parker, 794 S.W.2d 2, 7 (Tex. 1990)(“The Texas Workers'

Compensation Act provides that a subscribing employer has no liability to reimburse or hold

another person harmless for a judgment or settlement resulting from injury or death of an

employee "in the absence of a written agreement expressly assuming such liability." TEX.

REV. CIV. STAT. ANN. art. 8306, § 3(d)(Vernon Supp. 1989)(emphasis added). This

                                              20
                                              --
provision, commonly referred to as the Texas Workers' Compensation Bar, prohibits

indemnity in a workers' compensation context unless one party expressly agrees to indemnify

the other in writing.”). Under Appellant’s logic, if an employer entered into a contract with a

third party that it included an obligation to secure worker’s compensation insurance for its

own employees, the third party could join the employer as a defendant to the lawsuit even in

the absence of an indemnity agreement.

        In a case from the Southern District of Texas involving the application of a waiver

clause to a worker’s compensation carrier’s subrogation rights, the reviewing court also

referenced the contract’s indemnity clause in interpreting the scope of the limiting term of the

waiver clause “as respects risks and liabilities assumed by Contractor. . . .” In that case, the

indemnity clause was so broad that it was clear that the employer was assuming the

defendant’s liability: “The state-court suit is a claim against St. Mary ‘arising out of or

related to bodily injury or death’ of Select's employees for ‘medical, compensation or other

benefits.’ (Id., ¶ 11.2). Under the unambiguous language of the MSC, Select assumed St.

Mary's liability in that suit.” Liberty Ins. Corp. v. SM Energy, 2012 U.S. Dist. LEXIS

174069 (S.D. Tex. Dec. 7, 2012). However, in this case the indemnity clause in Exxon’s

contract is not nearly as broad, and does not call for Savage to assume liability for the claims

of Roberts and Munoz.

       In the memorandum order of April 15, 2015, the trial court provided the following

comment: “ISCP’s argument only works if Exxon’s settlement payments were for Savage’s

liability (the contractual exclusion ICSP focuses upon.) This defies common sense and is


                                              21
                                              --
not supported by the evidence. Robert’s Petition is against Exxon, not Savage. Exxon’s

settlement with Roberts is in resolution of its own liability, not Savage’s.”

(CR.242)(emphasis added) This comment suggests confusion on the part of the trial court.

The parties have never argued that Exxon’s settlement payments were for Savage’s liability.8

ICSP agrees that such an argument would defy common sense; however, this is not ICSP’s

argument. ICSP recognizes, and fact urges that Exxon’s settlements with Roberts and Munoz

were in resolution of Exxon’s own liability. ICSP’s argument is that there is no waiver of

subrogation unless Savage assumes Exxon’s liability, via the indemnity clause. It is

undisputed that Savage did not agree to indemnify Exxon for this accident. Given that no

one has asserted that Savage was liable for the accident, the trial court’s comment is

puzzling.

       An assumed liability is the agreement on the part of one party to pay for damages

sustained by another party; it not the agreement to pay insurance premiums prior to the work

being performed or any damages ever being sustained. Bootstrapping the insurance purchase

requirements to the “assumed liabilities” of the waiver clause would result in a reading that is

nonsensical. Under Appellants’ interpretation, the clause would be translated as follows:

“[Savage] and its insurer(s) providing coverage in this Section shall waive all rights of

subrogation and/or contribution against [Exxon] and its Affiliates [for Savage’s obligation to

secure worker’s compensation insurance. . . .]” In other words, Savage is required to waive


8 Savage could have never been held liable for the accident, as it had worker’s compensation
coverage, and therefore was immune from liability to Roberts or Munoz pursuant to Tex.
Labor Code § 408.001(also known as the exclusivity provision or worker’s compensation

                                              22
                                              --
subrogation against Exxon for the insurance premiums it is required to pay. However, a

worker’s compensation carrier can only subrogate for “damages” sustained by an injured

employee. See Tex. Labor Code § 417.001(a; Texas Workers’ Compensation Insurance

Fund v. Knight, 61 S.W.3rd 91 (Tex.App.—Amarillo 2001, no pet.). Insurance premiums

required to by paid by an employer are not damages. The Exxon / Savage contract only

obligated Savage to pay premiums to an insurance carrier to secure a worker’s compensation

policy. It did not obligate Savage to pay worker’s compensation benefits itself to its own

employees. ICSP is not seeking subrogation against Exxon for the insurance premiums paid

by Savage. ICSP is seeking subrogation for the insurance benefits it, not Savage, made to

Roberts and Munoz, for the damages Roberts and Munoz sustained as a result of the conduct

of Exxon. ICSP, not Savage was liable to pay worker’s compensation benefits to Roberts. In

fact, Texas allows an employer to decline to participate in the worker’s compensation system.

In that event, however, the employer loses its common law defenses to claims by its own

employees; i.e. becomes a “bare employer.”

D.    The indemnity clause is unenforceable as it does not comply with the fair notice
doctrine.

        Additionally, Section 12, the indemnity clause, is unenforceable, as it does not comply

with the express negligence doctrine by providing that Savage is required to indemnify

Exxon for its own negligence, and it does not comply with the conspicuousness requirement

as nothing appears on the face of the contract to attract the attention of a reasonable person

when he looks at it. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508


bar).
                                              23
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(Tex. 1993). By contrast, Section 11 contains a provision complying with the fair notice

doctrine: “. . . EVEN IF THE LOSS OR DAMAGE RESULTS FROM PURCHASER’S

NEGLIGENCE.” (CR.78, Exhibit 1,p.3 (Appendix “H”)) As there is no indemnity

obligation on the part of Savage, there are no liabilities assumed by Savage, and there is no

waiver of subrogation.

E.     The waiver only applies to general liability coverage.

       Alternatively, the limitation in the Exxon waiver clause, Section 14(a), limiting the

waiver “to the extent liabilities are assumed by [Savage]”, should be interpreted to limit the

waiver only to Savage’s general liability insurance coverage, and not its worker’s

compensation coverage. The worker’s compensation policy does not provide coverage for any

indemnity obligation assumed by Savage. Worker’s compensation coverage only provides for

the payment of medical or indemnity benefits to the policyholder’s employees, or death

benefits to the employees’ beneficiaries. Worker’s compensation coverage is not third party

liability coverage;9 it is first party insurance coverage.10 The worker’s compensation policy is

a three party agreement between the carrier, employer and employee. Aranda v. Ins. Co. of N.

Am., 748 S.W.2d 210, 212 (Tex. 1988). General liability insurance may provide coverage to

companies other than the policyholder in support of an indemnity obligation. The worker’s

compensation policy does not provide coverage for any indemnity obligation assumed by

Savage, nor can an unaffiliated company such as Exxon be added as an additional insured to


9 See 28 TEX. ADMIN. CODE § 21.202 (8) (West 2015(“Third-party coverage--Benefits and
other rights provided by an insurance contract to any person other than the insured.)
10 See 28 TEX. ADMIN. CODE § 21.202 (5) (West 2015)(“ First-party coverage--Benefits and

                                              24
                                              --
Savage’s worker’s compensation coverage, as Exxon is not an alternate employer for Savage’s

employees.

F.     Appellants are liable for the amount of ICSP’s lien as a result of their settlement.

       Both Roberts and Munoz settled their claims against Exxon, without honoring ICSP’s

subrogation claims. As part of the Roberts settlement, Roberts agreed to indemnify Exxon for

any claim by ICSP related to the settlement. However, as part of the Munoz settlement, Exxon

agreed to indemnify Munoz for any claim by ICSP related to the settlement, and to be

responsible for Munoz’s future worker’s compensation benefits should ICSP receive a statutory

credit against future benefits. Appellants’ settlement, and the payment of settlement funds to

Roberts and Munoz without reimbursing ICSP’s first-money subrogation lien, constitutes

conversion. See Texas Mutual Ins. Co. v. Ledbetter, 251 S.W.3d 31, 38-39 (Tex. 2008)

(“When an injured worker settles a case without reimbursing a compensation carrier,

everyone involved is liable to the carrier for conversion – the plaintiffs, the plaintiffs’

attorney, and the defendants.”); see also Capitol Aggregates, Inc. v. Great American Ins. Co.,

408 S.W.2d 922, 923-24 (Tex. 1966)(”The carrier was held entitled to recover from the third

party and the workman, jointly and severally, the amount of the settlement to the extent

necessary to reimburse itself as provided in Section 6a.”); Prewitt and Sampson v. City of

Dallas, 713 S.W.2d 720, 722 (Tex.App.-Dallas 1986, writ ref’d n.r.e.); Home Indemnity Co.

v. Pate, 814 S.W.2d 497 (Tex.App.-Houston[1st Dist.] 1991, no writ); Employers Casualty

Company v. Henager, 852 S.W.2d 655, 659 (Tex.App.—Dallas 1993, writ den’d); Houston


other rights provided by an insurance contract to an insured.”)

                                             25
                                             --
General Ins. Co. v. Campbell, 964 S.W.2d 691, 695 (Tex.App.—Corpus Christi 1998, review

den’d) (“If a third-party tortfeasor and its insurer wrongfully pay out to the employee money

that belongs to the compensation carrier, the third-party tortfeasor and its insurance company

are liable for the total amount paid by the carrier.”); Performance Ins. Co. v. Frans, 902

S.W.2d 582, 585 (Tex.App.---Houston [1st Dist.] 1995, writ denied); Travelers Insurance

Company v. Seidel, 705 S.W.2d 278, 281 (Tex.App.-San Antonio 1986, writ dism’d). ICSP

pleaded claims against Appellants for conversion, and since subrogation was not waived,

ICSP was entitled to recover from Appellants the amount of its lien against the Roberts

settlement, and from Exxon in the amount of its lien against the Munoz settlement.

G.     Conclusion.

       Since waiver is an affirmative defense, it is Appellants’ burden to prove it applies as a

matter of law.11 Additionally, as Appellants filed a traditional motion for summary

judgment, they had the burden to prove as a matter of law that waiver applies. As Appellants

did not prove their affirmative defense of waiver as a matter of law, this Court should reverse

the trial court’s summary judgment, and remand the case to the trial court for further

proceedings.




11 See Tex. Rule of   Civ. Proc. 94; Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d

                                              26
                                              --
ISSUE 2: Even if there is an enforceable waiver of subrogation in favor of Exxon, the
trial court erred in holding that ICSP’s right to assert that Roberts’ and Munoz’s third-
party recovery constituted an advance against future benefits was also waived.

                  ARGUMENT AND AUTHORITIES FOR ISSUE 2:

       Even if ICSP’s subrogation rights have been waived, this does not waive ICSP’s right

to assert a credit against future benefits which may be owing to Roberts and Munoz pursuant

to Tex. Labor Code § 417.002(b) in the respective amounts of their recovery. Tex. Labor

Code § 417.002 provides:

               Sec. 417.002. RECOVERY IN THIRD-PARTY ACTION. (a) The net amount
       recovered by a claimant in a third-party action shall be used to reimburse the insurance
       carrier for benefits, including medical benefits, that have been paid for the compensable
       injury.

              (b) Any amount recovered that exceeds the amount of the reimbursement
       required under Subsection (a) shall be treated as an advance against future benefits,
       including medical benefits, that the claimant is entitled to receive under this subtitle.

               (c) If the advance under Subsection (b) is adequate to cover all future benefits,
       the insurance carrier is not required to resume the payment of benefits. If the advance is
       insufficient, the insurance carrier shall resume the payment of benefits when the
       advance is exhausted.

The Legislature has recognized that a carrier’s right of subrogation is distinct from its right to

treat a third-party recovery by an injured worker as an advance against future benefits (under

Tex. Labor Code § 417.002(b)). In particular, Tex. Labor Code § 417.003(d) provides that

the worker’s attorney can only recover attorney’s fees out of the carrier’s recovery for

amounts paid in the past, not the amount of future benefits the carrier is relieved from paying

pursuant to Tex. Labor Code § 417.002(b):


505, 508 (Tex. 1993).

                                               27
                                               --
              (d) For purposes of determining the amount of an attorney's fee under this
       section, only the amount recovered for benefits, including medical benefits, that have
       been paid by the insurance carrier may be considered.

Prior to this amendment to the statute in 1993, Texas appellate courts had allowed attorneys

to recover attorney’s fees from the carrier for not only the past amount of benefits

reimbursement, but also the present value of the benefits the carrier was relieved of paying

pursuant to the advance provision. See Ischy v. Twin City Fire Ins. Co., 718 S.W.2d 885, 888

(Tex. App. Austin 1986, writ ref’d n.r.e.); Chambers v. Texas Employers Ins. Assoc., 693

S.W.2d 648 (Tex. App. 1985, writ ref'd n.r.e.).

       In an analogous context involving a carrier’s credit rights for future worker’s

compensation benefits to be paid under the the Longshore and Harbor Workers'

Compensation Act, 33 U.S.C. §§ 901–950, the Fifth Circuit has held no fewer than five times

that an enforceable waiver of subrogation does not waive the carrier’s right to a credit against

future benefits. See Petro-Weld, Inc. v. Luke, 619 F.2d 418 (5th Cir. 1980); Petroleum

Helicopters, Inc. v. Collier, 784 F.2d 644 (5th Cir. 1986); Nicklos Drilling Co. v. Cowart, 907

F.2d 1552 (5th Cir. 1990); Jackson v. Land & Offshore Services, Inc., 855 F.2d 244 (5th Cir.

1988); Kelly v. Red Fox Cos. of New Iberia, Inc., 123 Fed. Appx. 595 (5th Cir. 2005); but see

Hartford Accident & Indem. Co. v. Buckland, 882 S.W.2d 440, 444–56 (Tex.App.—Dallas

1994, writ denied); Am. Risk Funding Ins. Co. v. Lambert, 59 S.W.3d 254, 259 (Tex. App.—

Corpus Christi 2001, pet.denied).12 The right of offset or credit under the Texas Worker’s


12 The Texas Supreme Court has never addressed this issue. Lambert followed Buckland
without further analysis. Buckland based its holding on the Ischy and Chambers opinions
which were subsequently abrogated by statute. Buckland also noted that its holding was

                                              28
                                              --
Compensation Act for a third party recovery is substantially the same as the right provided

under Section 933(f) of the Longshore Act. The Texas statute dictates that any third-party

recovery by a claimant be treated as an “advance” against future benefits, and that until the

advance is exhausted, the carrier is not obligated to pay any future benefits. As it categorizes

any third party recovery by the claimant as an advance fund which must first be exhausted, it

is similar to “Section 33(f) [, which] fixes the liability of the employer-carrier for

compensation in the future after a third party settlement or judgment has been obtained. It

simply cannot be read to mean that the employer-carrier is liable to presently pay

compensation in addition to the amount received from the third party without first exhausting

that fund, and thus provide a double recovery in this case . . . .” See Petro-Weld, Inc., 619

F.2d at 420-421. There is no rational basis to distinguish these holdings based upon the fact

that they involve different statutes. They both involve worker’s compensation statutes that

have similar offset or credit provisions in their third-party recovery statutes. They are similar

in that they provide a first money right of reimbursement to the carrier, and are intended to

reduce the burden of insurance to the general public.13 Finally, a finding that a waiver in

favor of Exxon also waived ICSP’s right to assert a statutory credit against future benefits to

Roberts and Munoz would be contrary to the provisions of the waiver endorsement, which




“governed by former article 8307, section 6a of the Texas Revised Civil Statutes since
Buckland's injuries occurred prior to January 1, 1991.” Buckland, 882 S.W.2d at 441, fn.1.
13 “First-money reimbursement is crucial to the worker's compensation system because it
reduces costs for carriers (and thus employers, and thus the public) and prevents double
recovery by workers.” Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 35 (Tex. 2008).

                                               29
                                               --
provides that the agreement shall not operate directly or indirectly to benefit anyone not

named in the Schedule.

ISSUE 3: Exxon’s affidavit of T. Lynn Henagan cannot be any basis for affirming the
trial court’s summary judgment.

                  ARGUMENT AND AUTHORITIES FOR ISSUE 3:

       ICSP objected to portions of Exxon’s affidavit of T. Lynn Henagan (CR.79; Exhibit 8

(Appendix “I”)) pursuant to Tex. Rule of Civ. Proc. 166a(f), and provided a proposed order

supporting the objections. (CR.87-89) The trial court indicated in its opinion that it was not

basing its opinion on the affidavits filed by Appellants: “The parties have agreed that all

remaining issues in this case are entirely issues of law. The parties agree, and this Court

rules, that the contracts in play are not ambiguous. Accordingly, this Court did not use and

does not need to rule on the Affidavits and objections thereto which purport to tell the Court

how to interpret the contracts.” (CR.241-242)

       As the trial court expressly did not consider the affidavits, ICSP would submit that

they cannot be the basis for affirming the trial court’s summary judgment. See Cincinnati

Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996); State Farm Fire & Casualty Co. v.

S.S., 858 S.W.2d 374, 380 (Tex. 1993) (plurality opinion); Delaney v. University of Houston,

835 S.W.2d 56, 58 (Tex. 1992). However, to the extent that ICSP is incorrect, ICSP submits

that any consideration of Exxon’s affidavit of T. Lynn Henagan over ICSP’s objections

would have been erroneous, that the trial court erred in not sustaining the objections, and the

evidence should not be considered on appeal. ICSP reurges the objections to the extent the

evidence could form the basis of any opinion by this Court, as follows:

                                              30
                                              --
A.     General Objections.

       Any consideration of paragraphs 6 – 7 and 9 - 11 of Henagan’s affidavit , a supervisor

for Exxon Risk Management, would have been erroneous as inadmissible parol evidence.

“Parol evidence is only admissible to show ‘(1) the execution of a written agreement was

procured by fraud, (2) an agreement was to become effective only upon certain

contingencies, or (3) the parties’ true intentions if the writing is ambiguous.’” Ledig v. Duke

Energy Corp., 193 S.W.3d 167, 178-79 (Tex.App.—Houston[1st Dist.] 2006, no pet.)(citing

Gonzalez v. United Carpenters & Joiners, 93 S.W.3d 208, 211 (Tex.App.—Houston[14th

Dist.] 2002, no pet.)). Appellants did not argue that Exxon’s standard form “Standard

Procurement Agreement for Downstream or Chemical Services with Incidental Goods” the

basis of their waiver claim was either (1) procured by fraud; (2) effective only upon certain

contingencies, or (3) ambiguous. As such, the parol evidence offered by Henagan is

inadmissible. It was presumably offered as an attempt to broaden the reach of the waiver of

subrogation clause.

       Additionally, ICSP objected to Henagan’s attempts to interpret the contract in

paragraphs 6 – 7 and 9 - 11. The contract speaks for itself. The interpretation of the contract

is a question of law for the Court, not a question of law or fact for Henagan to interpret.

Henagan then proceeds to misinterpret the contract.




                                              31
                                              --
B.     Specific Objections.

       1.     Paragraph 6.

       In paragraph 6, Henagan states that “Savage assumed liability to maintain workers’

compensation and employer’s liability insurance. . . .” Henagan’s self-serving use of the

term “assumed liability” is misplaced; “assumed responsibility” is a more accurate

description of the requirement. The act of securing first party worker’s compensation

insurance covering Savage’s own employees (not Exxon’s), is not an act of “assuming

liability.” The only possible reason for Henagan’s misuse of this term is to support an

argument by Exxon that the act of securing worker’s compensation insurance constitutes one

of the “liabilities” “assumed by Supplier” under the waiver provision of section 14(a) of

Exxon’s form contract.

       The last two sentences of paragraph 6 of Henagan’s affidavit are improper in that they

state a legal conclusion as to insurance coverage, and are conclusory, as to the responsibility

of Savage’s insurance carriers to secure coverage. This is a question of law for the Court, not

a question of law or fact for Henagan to interpret. Henagan has not laid any foundation as an

attorney to provide a legal conclusion.

       2.     Paragraph 7.

       In paragraph 7 of Henagan’s affidavit, Henagan states that under section 14(a) of

Exxon’s form contract “Savage agreed that Savage and its insurers providing coverage under

paragraph 14(a) were to waive all rights of subrogation.” This states an improper legal

conclusion, is conclusory and violates the parol evidence rule. It misstates the waiver clause,


                                              32
                                              --
because Savage did not agree to waive “all rights of subrogation”; Savage only agreed to

waive subrogation for liabilities assumed by Savage.

       3.     Paragraph 9.

       Paragraph 9 attempts to describe Exxon’s course and dealing, “practice, and intent,”

which constitutes inadmissible parol evidence.

       4.     Paragraph 10.

       Paragraph 9 attempts to describe Exxon’s course and dealing, “practice, and intent,”

which constitutes inadmissible parol evidence. Additionally, the second sentence, that “the

cost of the premiums for such coverage including waiver of subrogation is passed through to

ExxonMobil in the pricing and compensation to be paid under the contract” is conclusory,

unsupported and without any foundation. The witness, who works in Risk Management,

does not lay and foundation for his alleged knowledge of contract and pricing negotiations

between Savage and Exxon.

       5.     Paragraph 11.

       In paragraph, Henagan provides an impermissible legal conclusion that Savage waived

subrogation for this accident. The paragraph is inadmissible as violative of the parol

evidence rule, conclusory, unsupported and without any foundation. The witness, who works

in Risk Management, does not lay and foundation for his alleged knowledge of contract and

pricing negotiations between Savage and Exxon.




                                            33
                                            --
                                 PRAYER FOR RELIEF

       WHEREFORE, ICSP prays that this Court reverse the trial court’s summary judgment

that ICSP take nothing as to its claims pertaining to Roberts, Munoz and Exxon, remand the

case to the trial court for a new trial on ICSP’s intervention interests; that ICSP recover its

taxable costs of Court, and for such other and further relief as just.

                                                     Respectfully submitted,

                                                     KELLY & SMITH, P.C.

                                                     /s/ Loren R. Smith__________________
                                                     Loren R. Smith
                                                     Texas Bar No. 18643800
                                                     4305 Yoakum Blvd.
                                                     Houston, Texas 77006
                                                     713/861-9900
                                                     713/861-7100 - FAX

                                                     ATTORNEYS FOR APPELLANT THE
                                                     INSURANCE COMPANY OF THE
                                                     STATE OF PENNSYLVANIA

                              CERTIFICATE OF SERVICE

      I hereby certify that on July 21, 2015, a true and correct copy of the foregoing was
forwarded by electronic transmission to the following counsel of record:

Jason A. Itkin                                     Mike Morris
Arnold & Itkin                                     Tekell, Book, Allen & Morris, L.L.P.
6009 Memorial Drive                                1221 McKinney, Suite 4300
Houston, Texas 77007                               Houston, Texas 77010-2010
Attorneys for Plaintiff Kevin Roberts              Attorneys for Third-Party Plaintiff Exxon
                                                   Mobil Corporation



                                                     /s/ Loren R. Smith__________________
                                                     Loren R. Smith

                                              34
                                              --
             CERTIFICATE OF COMPLIANCE AND WORD COUNT

      I hereby certify that this document was produced on a computer using Microsoft Word
and contains 10,013 words, as determined by the computer software’s word-count function,
excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).



                                                  /s/ Loren R. Smith__________________
                                                  Loren R. Smith




                                             35
                                             --
                           APPENDIX


APPENDIX “A”:   Trial Court’s memorandum order and opinion granting Exxon’s
                Motion for Rehearing, signed April 15, 2015

APPENDIX “B”:   Final Summary Judgment, signed May 11, 2015

APPENDIX “C”:   Texas Labor Code Chapter 417

APPENDIX “D”:   Stipulation of Facts

APPENDIX “E”:   Affidavit of Lisa Dean

APPENDIX “F”:   Portion of Transcript of October 20, 2014 Hearing in 125th

APPENDIX “G”:   Waiver of Subrogation Endorsement from ICSP Policy

APPENDIX “H”:   Relevant Portions of Exxon / Savage Contract

APPENDIX “I”:   Affidavit of T. Lynn Henagan




                                36
                                --
                               CAUSE NO. 2013-03033
                                                                                                             .ifP.~h.
KEVIN ROBERTS                              §   IN THE DISTRICT COURT OF'                                                         rJ(
                                           §
                                           §
                                                                                          !i i.. M0b1'l
                                                                                                 I ,:'\
vs                                         ~   HARRIS COUNTY, T                           ~ ! ~9 ._.
                                           §                                         .... ;-                 I   :;'::::!• ..i
                                                                                     ';!
                                                                                    i:I
                                                                                               o
                                                                                               O
                                                                                                     --t n·III
                                                                                                     <JI + o
                                                                                                                          L.. •
                                           §                                        - §-                                  t_!!j
                                                                                                                 ~-=
                                                                                    ~                .-...:,
                                                                                                             I   Oal
                                                                                                                 -:,
EXXON MOBIL CORPORATION                    §                                                   !.<   g           ~;·
                                           §                                          i              u.,

                                           §   165TH JUDICIAL           DIST

                                     ORDER

      Upon consideration of The Motion to Abate or in the Alternative Motion for

Continuance filed by Exxon Mobil Corporation, Motion for Rehearing of Exxon

Mobil Corporation's First Amended Motion for Summary Judgment, and DefendLt

The Insurance Company of the State of Pennsylvania's Motion for Final Summl,-y

Judgment ("ICSP's Motion"), the briefing, summary judgment evidence ind

argument of counsel, the Court finds as follows:

      ICSP's Motion is DENIED.

      Exxon's Motion for Rehearing is GRANTED, and further Exxon Mobil
                                                                                                         I
Corporation's First Amended Motion for Summary Judgment (filed September 23,

2014) is GRANTED.

      Exxon's Motion to Abate or in the Alternative for continuance is l\100T.

      The Court's rulings are for the reasons set out in Exxon's motions. The Court

comments further as follows:

      The parties have agreed that all the remaining issues in this case are entirely
                                                                                                     I
                                                                                                     I

questions of law. The parties agree, and the Court rules, that the contracts in play
                                                            "ECOROER'S MEMORANDUI M
                                                            "n,,s ms\lume1111s o I poor qua tW
                                                                 al the 11me of ,ma91C1g



                                                                                APPENDIX A
                                                                                        4123/201512:33:02 PM
                                                                                        Chris Daniel - District Clerk
                                                                                        Harris County
                                                                                        Envelope No: 5005007
                                                                                        By: HENDERSON, MARCELLA L
                                                                                        Fried: 4/23/201512:33:02 PM
                                           NO. 2013-03033

KEVIN ROBERTS                                      §             IN THE DISTRICT COURT OF
                                                   §
vs.                                                §             HARRIS COUNTY, TEXAS
                                                   §
EXXON MOBIL CORPORATION                            §             16STH JUDICIAL ~TRICT

                                          FINAL JUDGMENI                           ='fa
                                                                                   'C'= i
       ON TIIlS DAY came on to be beard Defendant Exxon Mobil Co~tion                        's Final Summary
                                                                            <:~~
                                                                            ..'~
Judgment against The Insurance Company of the State of Pennsylv~~'ICSP"). The Court, after
                                                                     (;~~



reviewing the summary judgment        record and agreement of co~
                                                                  ""~entered an Order on April 15,
                                                                 ~
2015 granting the First Amended Summary Judgment of ~n Mobil Corporation against The
                                                             ~
Insurance Company of the State of Pennsylvania. It ~etefore,
            .            .                             &;-
       ORDERED, that the Order on Defendant Ex~ Mobil Corporation's First Amended Motion
                      .                           =~
for Summary Judgment pursuant to Rule        \t~ of the Texas Rules of Civil Procedure is hereby
                                              ~
made final, and the Court consistent with tg Summary Judgment hereby enters a declaration that:
                                        ID
                                      ~-=-
       a.      The Insurance Co~of         the State of Pennsylvania waived all contractual and
               statutory subroga~ghts against Exxon Mobil Corporation;
                                      ~
       b.        The Insurance ~pany   of the State of Pennsylvania has waived its rights under Tex.
                 Labor Code~pter 417 to recover from Exxon Mobil Corporation or Plaintiff
                 Kevin Rq~~ or Arturo Munoz any workers' compensation benefits paid in the past
                 or to c~  credit or set off against compensation benefits to be paid in the future;
                     e       ':!'fl
       c.    ~eJg~\1:rance Company ofthe State of Pennsylvania is not entitled to reimbursement
             ~~thenet amount recovered by Kevin Roberts or Arturo Munoz in any settlement
             ~ Exxon Mobil Corporation for past benefits paid pursuant to Tex. Labor Code
            ~~417.002(a);and

       d.        The Insurance Company of the State of Pennsylvania is not entitled to a statutory
                 credit or set off against workers' compensation benefits to be paid Kevin Roberts or
                 Arturo Munoz in the future pursuant to Tex. Labor Code§ 417.002(b).




                                                                                                        ·'



                                                                                            APPENDIX B
       The Court further notes that Kevin Roberts filed and asserted a claim for attorneys' fees and

expenses against ICSP which is hereby non-suited and dismissed without prejudice as moot Further,

ExxonMobil   previously        filed and asserted a counter-claim   for indemnity against Kevin Roberts




                          1~

Danny Van Winkle
TEKELL, BOOK,~~     & MORRIS, L.L.P.
1221 McKinney,$~~4300
Houston, Texas~0-2010
(713)222-9s4n~
(713) 655-~- Fax
Att.orneyf/fi} Exxon Mobil Corporation
in All Capacities




                                                       2
                         LABOR CODE
             CHAPTER 417. THIRD-PARTY LIABILITY

     Sec. 417.001. THIRD-PARTY LIABILITY. (a) An employee
or legal beneficiary may seek damages from a third party
who is or becomes liable to pay damages for an injury or
death that is compensable under this subtitle and may also
pursue a claim for workers' compensation benefits under
this subtitle.

     (b) If a benefit is claimed by an injured employee or
a legal beneficiary of the employee, the insurance carrier
is subrogated to the rights of the injured employee and may
enforce the liability of the third party in the name of the
injured employee or the legal beneficiary.     The insurance
carrier's subrogation interest is limited to the amount of
the total benefits paid or assumed by the carrier to the
employee or the legal beneficiary, less the amount by which
the court reduces the judgment based on the percentage of
responsibility determined by the trier of fact under
Section   33.003,   Civil   Practice   and  Remedies   Code,
attributable to the employer.     If the recovery is for an
amount greater than the amount of the insurance carrier's
subrogation interest, the insurance carrier shall:

         (1)   reimburse itself and pay the costs from the
amount recovered; and
         (2) pay the remainder of the amount recovered to
the injured employee or the legal beneficiary.

     (c)    If a claimant receives benefits from the
subsequent injury fund, the commission is:
         (1) considered to be the insurance carrier under
this section for purposes of those benefits;
         (2)   subrogated to the rights of the claimant;
and
         (3) entitled to reimbursement in the same manner
as the insurance carrier.




                                                  APPENDIX “C”
     (d)  The commission shall remit money recovered under
this section to the comptroller for deposit to the credit
of the subsequent injury fund.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1423, Sec. 12.13, eff.
Sept. 1, 1997;   Acts 2003, 78th Leg., ch. 204, Sec. 4.09,
eff. Sept. 1, 2003.

     Sec. 417.002.   RECOVERY IN THIRD-PARTY ACTION.    (a)
The net amount recovered by a claimant in a third-party
action shall be used to reimburse the insurance carrier for
benefits, including medical benefits, that have been paid
for the compensable injury.

     (b)  Any amount recovered that exceeds the amount of
the reimbursement required under Subsection (a) shall be
treated as an advance against future benefits, including
medical benefits, that the claimant is entitled to receive
under this subtitle.

     (c) If the advance under Subsection (b) is adequate to
cover all future benefits, the insurance carrier is not
required to resume the payment of benefits. If the advance
is insufficient, the insurance carrier shall resume the
payment of benefits when the advance is exhausted.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

     Sec. 417.003.    ATTORNEY'S FEE FOR REPRESENTATION OF
INSURANCE CARRIER'S INTEREST.    (a)   An insurance carrier
whose interest is not actively represented by an attorney
in a third-party action shall pay a fee to an attorney
representing the claimant in the amount agreed on between
the attorney and the insurance carrier. In the absence of
an agreement, the court shall award to the attorney payable
out of the insurance carrier's recovery:

         (1)     a reasonable fee for recovery of the
insurance carrier's interest that may not exceed one-third
of the insurance carrier's recovery; and
         (2) a proportionate share of expenses.

     (b) An attorney who represents the claimant and is
also to represent the subrogated insurance carrier shall
make a full written disclosure to the claimant before
employment as an attorney by the insurance carrier. The
claimant must acknowledge the disclosure and consent to the
representation. A signed copy of the disclosure shall be
furnished to all concerned parties and made a part of the
commission file. A copy of the disclosure with the
claimant's consent shall be filed with the claimant's
pleading before a judgment is entered and approved by the
court. The claimant's attorney may not receive a fee under
this section to which the attorney is otherwise entitled
under an agreement with the insurance carrier unless the
attorney complies with the requirements of this subsection.

     (c) If an attorney actively representing the insurance
carrier's interest actively participates in obtaining a
recovery, the court shall award and apportion between the
claimant's and the insurance carrier's attorneys a fee
payable   out   of  the   insurance  carrier's  subrogation
recovery.     In apportioning the award, the court shall
consider the benefit accruing to the insurance carrier as a
result of each attorney's service.     The total attorney's
fees may not exceed one-third of the insurance carrier's
recovery.

     (d)   For purposes of determining the amount of an
attorney's fee under this section, only the amount
recovered for benefits, including medical benefits, that
have been paid by the insurance carrier may be considered.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

     Sec. 417.004.  EMPLOYER LIABILITY TO THIRD PARTY.     In
an action for damages brought by an injured employee, a
legal beneficiary, or an insurance carrier against a third
party liable to pay damages for the injury or death under
this chapter that results in a judgment against the third
party or a settlement by the third party, the employer is
not liable to the third party for reimbursement or damages
based on the judgment or settlement unless the employer
executed, before the injury or death occurred, a written
agreement with the third party to assume the liability.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.
AUG-15-2014         FRI 10:14    AM Kelly   and Smilh      P.C.              FAX NO. 7138617100                   P. 02/33
                                                     . T




                                              STIPULATION OF FACTS

            This stipulation of facts is being entered into between The Insurance Company of the State
     of Pennsylvania (hereinafter "ICSP") and Exxon Mobil Corporation (hereinafter referred to as
     "ExxonMobil").

               1.         On January 12, 2013, Savage Refinery Services, LLC ("Savage") employees, Kevin
                          Roberts ("Roberts") and Arturo Munoz ("Munoz") sustained bodily injuries in the
                          course and scope of their employment for Savage.

               2.         The January 12, 2013 accident in the ExxonMobil Delayed Coker Unit involving
                          Savage employees, Roberts and Munoz, was reported that day to Savage's insurance
                          broker and select underwriters, including Savage's workers' compensation insurance
                          carrier in Texas, The Insurance Company of The State of Pennsylvania ("ICSP").

              3.          At the time of the January 12, 2013 accident in the ExxonMobil Delayed Coker Unit,
                          both Roberts and Munoz were performing services for Savage pursuant to the
                          Agreement for Downstream or Chemical Services with Incidental Goods No.:
                          2088773 (sometimes referenced as A2088773) between ExxonMobil and Savage.
                          (Pertinent parts of Agreement No.: 2088773 including Amendment 6 and 7 and
                          Exhibits A and A~l redacted to remove references to pricing, are attached as Exhibit
                          I).

              4.         The producer, Marsh USA Risk & Insurance Services, issued the Certificate of
                         Liability Insurance attached as Exhibit 2.

              5.         Savage paid an additional premium to add Endorsement WC420304A titled, "Texas
                         Waiver of Our Right to Recover from Others Endorsement" to ICSP Policy No.
                         WC009-87-6293. Pertinent copies of the workers' compensation and employer
                         liability insurance policy issued by ICSP to Savage redacted to remove references ro
                         premium amounts is attached hereto as Exhibit 3.

              So stipulated this                day of                   _




                                                                  By authorized r    tative of The Insurance
                                                                  Company oft~ State(Pennsylvania. '


                                                                   ~~
                                                                  By Authorized Representative ofExxon Mobil
                                                                                                                 q-.v.~11
                                                                  Corporation
                                                                                          EXHIBIT
                                                     Page l of J




                                                                                          APPENDIX D
                                      CAUSE NO. 2013-03033

KEVIN ROBERTS                                                            IN THE DISTRICT COURT


VS.                                                                      165th JUDICIAL DISTRICT


EXXON MOBIL CORPORATION                                                 HARRIS COUNTY, TEXAS


                                           AFFIDAVIT

STATE OF TEXAS

COUNTY OF DALLAS

       BEFORE ME, the undersigned authority, personally appeared Lisa Dean who, being by
me duly sworn, deposed as follows:

      "My name is Lisa Dean. I am of sound mind, over the age of eighteen (18) years, am fully
competent to make this Affidavit, and have personal knowledge of the facts herein stated.

       I am employed as a Senior Technical Specialist, Workers' Compensation for AIG. In that
capacity, I am a duly authorized representative of the third-party defendant, The Insurance
Company of the State of Pennsylvania ("ICSOP") as it pertains to the worker's compensation
claims involving Kevin Roberts and Arturo Munoz. ICSOP has paid benefits to or on behalf of Mr.
Roberts in the total amount of $115,189.64 (all medical) as a result of the accident the subject of this
lawsuit. Attached as Exhibit "A" to this affidavit is a true and correct copy of ICS OP's payment
ledgers for Mr. Roberts' claim, documenting these payments. ICSOP has paid benefits to or on
behalf of Mr. Munoz in the total amount of $571,296.88 (medical of $514,205.58 and indemnity of
$57,091.30) as a result of the accident the subject of this lawsuit. Attached as Exhibit "B" to this
affidavit is a true and correct copy of ICSOP's payment ledgers for Mr. Munoz's claim,
documenting these payments.

        "I am a custodian of records for the attached business records of ICSOP. Attached hereto
are twenty-three (23) pages of records from ICSOP regarding the above-referenced claims. These
said pages of records are kept by ICSOP in the regular course of business, and it was the regular
course of business of ICSOP for an employee or representative of ICSOP with knowledge of the act
or event recorded to make the record or to transmit information thereof to be included in such
record; and the record was made at or near the time or reasonably soon thereafter. The records
attached hereto are the original or exact duplicates of the original."




AIG/Roberts/Affidavit


                                                                  APPENDIX E                      EXHIBIT 4
                                                                  Name Printed; Lisa Dean


      SUBSCRIBED and SWORN TO before me, by                         SQ1k:S      Sci           who is
 known personally to me, the undersigned Notary Public, on this                              day of
               , 2015, to certify which witness my hand and seal of office.



                                          LISA S. GILES
                        -     -be Notary Public. State of Texas
                          / 4w         Commission Expires         Notary Public In and For
                        vvIt'"
                         %Alt&           July 29, 2017            The State of  Ix




Ala/Roberts/Affidavit
                                                                          11
                                                       Motion hearing
                                                     October 20, 2014



 1   in the 165th.
 2                    THE COURT:    Yes, sir.   Thank you very
 3   much.     Response?
 4                    MR. MORRIS:    Yes, your Honor.     I think
 5   it's important that the Court have a overview.
 6   January 12th 2013, there is an accident out at the
 7   Baytown refinery.      A tremendously hot water was dumped
 8   on two contractors Kevin Roberts and Arturo Munoz.             Now
 9   both Mr. Roberts and Mr. Munoz were employees of Savage.
10   Savage was a contractor of ExxonMobil and when they
11   entered into a contract for the work out there,
12   ExxonMobil and Savage sat down and said we want all
13   employees to be covered by worker's compensation
14   insurance but we are going to have an election here.
15   Either Exxon will carry the comp or Savage will carry
16   the comp and they look at the premium charges and in
17   this particular case the parties agreed that Savage
18   would be liable to carry the worker's compensation
19   insurance and that further in that event they would
20   secure a waiver of worker's compensation subrogation
21   rights from the carrier.       Just the opposite occurred if
22   Exxon elected to furnish the worker's comp under an
23   older controlled insurance program.        In that situation
24   Savage agreed not to secure a waiver of subrogation
25   rights.

                           Kendra Garcia, CSR, RPR
                            125th District Court
                                713-368-6144


                                                        APPENDIX F
                                                                    12
                                                     Motion hearing
                                                   October 20, 2014



 1                    So that happens before the accident.     That
 2   accident happens and Mr. Roberts within a few days hires
 3   Jason Itkin who files a suit.     That suit lands in the
 4   165th.     It's against ExxonMobil.     ExxonMobil believes
 5   that it is an additional insurer on policies issued to
 6   Savage and makes that claim.     ExxonMobil also
 7   investigates the accident and determines that it is
 8   responsible for the injuries to these men.
 9                    Mr. Munoz elects not to hire a lawyer.       He
10   represents himself.     Mr. Itkin over here aggressively
11   prosecutes the case against ExxonMobil, requests for
12   production, inspections of the area and it is clear that
13   ExxonMobil feels responsible for what happened to these
14   two men.
15                    So immediately Itkin, Mr. Itkin, spends a
16   lot of time putting together his expert reports, the
17   medical.     ExxonMobil reviews that.     We begin to
18   negotiate with our carriers to try to come involved, to
19   try to resolve the case, they refuse to do it to some
20   extent and eventually the Roberts case gets concluded.
21   Now during all of this, as the Court knows, the waiver
22   of worker's compensation subrogation is a key to getting
23   the third party cases settled and a decision has to be
24   made who is going to be responsible for that and of
25   course Exxon and, I believe, Mr. Roberts believe that

                         Kendra Garcia, CSR, RPR
                          125th District Court
                              713-368-6144
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                                                                                                                                 APPENDIX G
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S!l'A(f:a.1!,,Jiog) Savice, • Dowldltw                                                                                             Pqc l
07,0:IA)6




                                                                                                                                            APPENDIX H
                                                                                                                                                                            °'
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SPA~Enlbling)s.tvkes· Oownttrum                                                                                          Pqc4
0'110l'06
      Case 4:14-cv-00053       Document 44 Filed in TXSD on 09/10/14 Page 1 of 4



                    IN THE UNITED STATES DISTRICT COURT
                    FOR THE SOUTHERN DISTRICT OF TEXAS
                             HOUSTON DIVISION

THE INSURANCE COMPANY OF THE §
STA TE OF PENNSYLVANIA       §
                             §
VS.                          §                  CIVIL ACTION NO. 4: 14-cv-00053
                             §
                             §
EXXON MOBIL CORPORATION      §
                             §

                       AFFIDAVIT OFT. LYNN HENAGAN

STATE OF TEXAS             §
                           §
COUNTY OF HARRIS           §

       BEFORE ME, the undersigned authority, on this day personally appeared T. Lynn
Henagan, known to me to be the person whose name is subscribed hereto, and after being
duly sworn, the witness stated on oath as follows:

       1.    "My name is T. Lynn Henagan. I am over eighteen years of age. I am fully
             competent to make this affidavit. The factual statements contained herein are
             within my personal knowledge and are true and correct."

      2.     "I am currently a supervisor with ExxonMobil Risk Management a division of
             Exxon Mobil Corporation. I have worked for ExxonMobil Risk Management
             since 1989."

      3.     "I was part of an ExxonMobil team assembled to respond to the January 12,
             2013 accident in the ExxonMobil Coker Unit in the ExxonMobil Baytown
             refinery involving Savage Refinery Services, LLC employees, Kevin Roberts
             and Arturo Munoz."

      4.    "Among other findings and conclusions, the team's investigation determined
            that Kevin Roberts and Arturo Munoz were bolting and unbolting flanges on
            piping to coker drums 3 and 4 in the ExxonMobil Coker Unit, when hot water
            exited a flange on piping of coker drum 3, causing burn injuries to Kevin
            Roberts and Arturo Munoz. This work was being performed in the Coker Unit
                                                                          EXHIBIT

                                                                    j        s
                                                                    APPENDIX I
Case 4:14-cv-00053    Document 44 Filed in TXSD on 09/10/14          Page 2 of 4



       which consists of various piping, drums and vessels which are affixed to the
       land on which the Refinery sits."

5.      "At the time of the accident, both Kevin Roberts and Arturo Munoz were
      performing services for Savage Refinery Services, LLC (Savage) pursuant to
      the Agreement for Downstream or Chemical Services with Incidental Goods
      No. 2088773 (sometimes referenced as A2088773) between ExxonMobil and
      Savage. (Pertinent parts of Agreement No. 2088773 including Amendment 6
      and 7 and Exhibits A and A-1 redacted to remove references to pricing, are
      attached to my affidavit as Exhibit 1 ). As noted above, Savage employees,
      Roberts and Munoz, were performing services on ExxonMobil premises at the
      time of the accident in question. Savage employees' presence, including that
      of Roberts and Munoz, on ExxonMobil's premises arose from work and
      services they performed for Savage in connection with Agreement No.
      2088773 ("Savage Contract") between Savage and ExxonMobil."

6.    "Pursuant to the Savage Contract No. A2088773 paragraph 14 attached as
      Exhibit I, Savage assumed liability to maintain workers' compensation and
      employer's liability insurance in accordance with applicable law and liability
      insurance coverages for the benefit ofExxonMobil including Savage's normal
      and customary commercial general liability insurance coverage and policy
      limits or at least $2,000,000.00, whichever is greater, providing coverage for
      injury, death, or property damage resulting from each occurrence. The Savage
      Contract, attached as Exhibit l , required that Savage's liability policies cover
      ExxonMobil as an additional insured in connection with the performance of
      services. The Savage Contract further required that any additional insured
      coverage is primary to all other policies (including any deductibles or self-
      insured retentions) and self-insurance which may provide coverage."

7.    "Pursuant to the Savage Contract, attached as Exhibit l, paragraph 14(a) on
      page 4, Savage agreed that Savage and its insurers providing coverage under
      paragraph 14(a) were to waive all rights of subrogation."

8.    "As a member of the ExxonMobil Risk Management Department and as part
      of my responsibilities to the ExxonMobil team assembled to respond to the
      January 12, 2013 accident, I contacted my counter-parts in the Savage Risk
      Management Department and requested documentation of the workers'
      compensation coverage. and liability coverages that Savage had assumed
      liability to provide under the Savage "Contract. .Savage's Risk Management
      Department provided a policy of workers' compensation insurance issued by

                                      2
Case 4:14-cv-00053    Document 44 Filed in TXSD on 09/10/14          Page 3 of 4



      The Insurance Company of the State of Pennsylvania (ICSP) and insuring
      employees of Savage injured in the course and scope of employment for
      Savage at the ExxonMobil Baytown Refinery. (Pertinent parts of ICSP's
      PoJicy No. WC XXX-XX-XXXX redacted as to estimated total annual
      remuneration and estimated annual premiums is attached to my affidavit as
      Exhibit 2). Savage, through its brokers and agents, also forwarded certificates
      of liability insurance, copies of which are attached to my affidavit as Exhibit
      3."

9.    "As a long time employee of the ExxonMobil Risk Management Department,
       I have personal knowledge of the workers' compensation insurance, liability
       insurance, additional insured, and waiver of subrogation requirements
      contained in the Standard Procurement Agreement for Downstream or
      Chemical Services with Incidental Goods which ExxonMobil negotiates with
      its contractors like Savage. ExxonMobil does not specify the manner and
      method by which a contractor chooses to put its liability insurance program in
      place, but does contractually require the contractor like Savage to make
      ExxonMobil an additional insured on the contractor's normal and customary
      commercial general liability insurance coverage leaving to the contractor like
      Savage to decide whether to structure that commercial general liability
      insurance coverage with primary, excess, umbrella, bumbershoot policies
      together with various deductibles and self-insured retentions that the contractor
      like Savage would contractually agree to satisfy. ExxonMobil's practice, and
      intent, is to require contractors like Savage to add ExxonMobil as an additional
      insured on all of Savage's policies that provide commercial general liability
      insurance coverage."

10.   "ExxonMobil's practice, and intent, is also for all workers, like Kevin Roberts
      and Arturo Munoz, at the ExxonMobil Baytown refinery to be covered by
      workers' compensation insurance coverage either by a policy of workers'
      compensation insurance furnished or arranged by ExxonMobil or a policy of
      workers' compensation insurance furnished or arranged by the worker's direct
      employer. When the worker's employer assumes liability to secure and
      provide workers' compensation insurance coverage, the cost of the premiums
      for such coverage including waiver . of subrogation is passed through to
      ExxonMobil in the pricing and compensation to be paid under the contract.
      When ExxonMobil elects to assume liability to furnish and arrange to provide
      workers' compensation insurance coverage, for workers' like Kevin Roberts
      and Arturo Munoz, the contract expressly provides that the contractor will not
      cause itself or its insurers to waive subrogation."

                                     3
   Case 4:14-cv-00053        Document 44 Filed in TXSD on 09/10/14            Page 4 of 4




        11.    "In the present cue, Savage agreed to assume liability to provide workers'
               compensation insurance coverage for its employees, Kevin Roberts Ind Arturo
               Munoz, aocl to secure waiver ot wortcen' compensedon subroption rights in
               favor of ExxonMobil fiom its workers' compensation insurance carrier,
               pusing the cost ofsuch workers' componntioo insunocecovenac and waiver
               of subropdon ripts onto ExxonMobil."

        12.    "On or about March 28, 2014, Kevin Roberti entered into a confidential
               settlement aaz-eoment, th1 consJderation for which was not fully tendered by
               Chanis Europe Limited under LiabJlity Policy No. CUOO I 1508 and NatJonal
               Union Piro Insurance Company of Pittsburgh. Pa. under Liability Poliey No.
               OL-972-50-90until on or about Juno 4, 2014."
       13.     "On August 27, 2014, Arturo Munoz and wife, Candice Reyes, si111ed a
               confidential seulement qreement. the consideration for whJcb was not 1\al)y
               fbndad until Septembor l. 2014. National Union Fire lnswance Company of
               Pittsburgh. Pa. (Nadoaal Union) under Liability Poliey No. OL-972.,0-90
               apeed co contribute. buthu not yet paid, t 5', of the Arturo Mwioz seulement
               based on the other liability imurmce provisions contained In tho National
               Union and Starr Indemnity A Liability Company policies."

       14.     "National Union dcni~ c,ovmge to Exxon Mobil Corporacion under Liability
               PolicyNo. 13273101 based inpart'on NationalUnion's contention that Starr's
               Liability Policy No. MASll.SB 00005012 must be exhlmted beton National
               Uai011's Polley No. 132?3101 is trigend."

       "Further, Afflant saycth not."




      SWO~JO AND SUBSCRIBEDBEFORE ME by the said T. LYNN HE!NAOAN
on this the~day of September, 2014.




                                                'NoYPUBc
                                                 ~                      ANii~
                                                nm STATE OF TEXAS

                                            4
                                                   ~·,
