Opinion
NO. 14-20-00661-CV
09-15-2022
TOTALENERGIES PETROCHEMICALS & REFINING USA, INC. fka Total Petrochemicals & Refining USA, Inc. and ACE Property & Casualty Insurance Co., Appellants/Cross-Appellees v. KINDER MORGAN PETCOKE, LP and Kinder Morgan Petcoke GP LLC, Appellees/Cross-Appellants
Thomas R. Phillips, Michael Cotton, Austin, James M. Bettis Jr., D. Mitchell McFarland, Justin Ratley, Houston, Caroline Schadle, for Appellee. Jack G. Carnegie, Sarah Smith, Allison Griswold, Houston, Wallace B. Jefferson, Austin, Rachel A. Ekery, Houston, for Appellant.
Thomas R. Phillips, Michael Cotton, Austin, James M. Bettis Jr., D. Mitchell McFarland, Justin Ratley, Houston, Caroline Schadle, for Appellee.
Jack G. Carnegie, Sarah Smith, Allison Griswold, Houston, Wallace B. Jefferson, Austin, Rachel A. Ekery, Houston, for Appellant.
Panel consists of Justices Jewell, Bourliot, and Poissant.
Kevin Jewell, Justice
Total Petrochemicals & Refining USA, Inc. and Kinder Morgan Petcoke, LP are parties to a contract under which Kinder Morgan performed petrochemical work at Total's refinery. The issues before us concern whether Kinder Morgan complied with contractual obligations to procure and maintain certain insurance; whether the contract required Kinder Morgan to name Total and its employees as additional insureds on all insurance Kinder Morgan carried; and whether any breaches caused damages. The contract disputes emanate from the tragic death of a Kinder Morgan employee while performing work under the contract, and the parties’ joint contribution to a settlement of the employee's lawsuit against Total and Kinder Morgan. Following the settlement, Total sued Kinder Morgan, claiming Total lacked insurance coverage that would have paid for at least some of its defense and settlement costs had Kinder Morgan not breached its contractual promise to make Total and its employees additional insureds on Kinder Morgan's insurance policies.
We refer to appellees Kinder Morgan Petcoke, LP and Kinder Morgan Petcoke GP LLC as "Kinder Morgan."
The trial court resolved all claims on summary judgment, granting relief on some of Total's claims, rejecting other claims, and rendering a $1 million judgment for Total and its subrogated insurer, Ace Property and Casualty Insurance Co. ("Chubb"). All parties appeal.
For reasons explained below, we hold:
1. Appellants conclusively established Kinder Morgan breached the contract in three respects: (a) by failing to maintain the minimum coverages required by the contract; (b) by failing to ensure that Total and its employees qualified as additional insureds on Kinder Morgan's excess policy; and (c) by failing, before the accident, to provide written notice of a material change made to Kinder Morgan's insurance policies that affected Total's additional insured status.
2. Appellants’ alleged damages are not consequential damages and therefore are not excluded by the contract's consequential damages exclusion.
3. Appellants have not conclusively proven damages for any of the above breaches, and we remand for determination of damages.
4. The trial court did not err in ruling that appellants’ damages resulting from Kinder Morgan's failure to maintain the minimum required coverages are limited to $6 million.
5. Because the issue of damages remains for resolution on remand, we do not reach the parties’ arguments regarding Kinder Morgan's claims to an offset or to recover its settlement contribution.
Accordingly, we affirm the judgment in part, reverse and render judgment in part, and remand the case for further proceedings consistent with this opinion.
Background
In 2009, Total signed a contract with TGS Development, LP, by which TGS agreed to perform certain work at Total's Port Arthur, Texas refinery (the "Contract"). Through a series of assignments, Kinder Morgan acquired TGS's interest in the Contract.
In September 2015, Gary Counts, a Kinder Morgan employee, died while performing work under the Contract. Counts's family filed wrongful death and survival claims against Kinder Morgan, Total, and some Total employees (the "Counts Lawsuit"). The Counts family non-suited Kinder Morgan after the Department of Insurance Division of Workers’ Compensation determined that their claims were covered under Kinder Morgan's worker's compensation insurance. Subsequently, Total and its insurer, Chubb, along with Kinder Morgan, jointly funded a settlement of the Counts Lawsuit. Total and Kinder Morgan contributed equal amounts to the settlement. Chubb contributed a lesser amount. Though all agreed that the settlement amount was reasonable, Total, Chubb, and Kinder Morgan disputed ultimate responsibility for funding the settlement, and they reserved their respective rights against each other.
A. Summary of contract terms
The disputed issues concern primarily whether Kinder Morgan complied with Contract provisions requiring it to: (1) procure and maintain certain minimum types and amounts of insurance coverage; (2) make Total and its employees additional insureds on Kinder Morgan's insurance policies; and (3) give Total thirty days’ written notice of any cancellation or material modification of its policies. Kinder Morgan's insurance-related obligations are set forth in Article 9 and Exhibit X of the Contract, which state in relevant part:
ARTICLE 9 — INSURANCE
Before any of the Work is commenced and during the entire progress of the Work, [Kinder Morgan] shall, at [Kinder Morgan]’s own cost and expense, cause to be issued and maintained insurance coverages as set forth on Exhibit "X" attached hereto and made a part hereof for all purposes. As outlined in greater detail in Exhibit X, all insurance carried by [Kinder Morgan], except Worker's Compensation and Employer[s]’ Liability, whether required hereby, shall, be endorsed to make [TOTAL] and its partners, partnerships, joint ventures, joint venture partners, parents, subsidiaries, and affiliated companies and their respective employees, officers, directors, and agents additional insureds (Additional Insureds) and all insurance carried by [Kinder Morgan] shall be endorsed to provide that underwriters and insurance companies of [Kinder Morgan] shall not have any right of subrogation against the Additional Insureds. Prior to commencing the Work, [Kinder Morgan] shall supply to TOTAL insurance certificates evidencing that the minimum insurance is in full force and effect and that thirty (30) days written notice shall be given to TOTAL prior to any cancellation or material modification of any policies.
* * *
EXHIBIT X
INSURANCE REQUIREMENTS
1.1 MINIMUM REQUIRED COVERAGES. [Kinder Morgan] shall provide and maintain in effect, from the time of commencement of Work hereunder until full completion of the Work and of all of [Kinder Morgan]’s obligations under the Contract ..., with insurance companies reasonably acceptable to [TOTAL], with the equivalent of an A.M. BEST rating of B or better, the following minimum amounts and types of insurance:
* * *
(b) COMMERCIAL GENERAL LIABILITY INSURANCE
Including, but not limited to, coverage for death, bodily injury and property damage, broad form contractual liability insuring the indemnity agreement, if any, set forth in this Contract and products-completed operations coverage with limits of not less than $1,000,000 applicable to bodily injury, sickness or death for any one occurrence and $1,000,000 for loss of or damage to property for any one occurrence....
* * *
(d) EXCESS LIABILITY INSURANCE
Excess (umbrella) liability coverage following form[ ] and in excess of the limits and terms of (a), (b), and (c) above, with a combined single limit for death, bodily injury and/or property damage of not less than $5,000,000 for each occurrence.
* * *
1.3 ADDITIONAL INSUREDS. [TOTAL], its partners, partnerships, joint ventures, joint venture partners, parents, subsidiaries, and affiliated companies, and their respective employees, officers, directors, and agents (collectively referred to as Additional Insureds) shall be named as additional insureds to the extent required by the Contract, except Workers’ Compensation and Employers’ Liability. Further, [Kinder Morgan]’s indemnity
A "following form" excess liability policy incorporates by reference all terms and conditions of the primary insurance policy. Bayou Steel Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. , 642 F.3d 506, 509 (5th Cir. 2011).
obligation shall not be limited by the insurance requirement.
(a) SUBROGATION
All policies shall be amended or endorsed to provide that underwriters and insurance companies of [Kinder Morgan] shall not have any right of subrogation against the Additional Insureds.
(b) PRIMARY INSURANCE
Any coverage provided to the Additional Insureds by [Kinder Morgan] under this Contract is primary insurance and shall not be considered contributory insurance with any insurance policies of the Additional Insureds.
(c) OCCURRENCE MADE BASIS
It is agreed that all policies and coverages required by the Contract shall extend to all occurrences that occurred from the time of commencement of Work until completion of Work and removal of all remaining materials, supplies and personnel from the Work Site. If any coverage is written on a claims-made basis, the policy date or retroactive date shall predate this Contract and the termination date of the policy or applicable extended reporting period shall be not earlier than twenty-four (24) months from [Kinder Morgan]’s completion of the Work. If the Commercial General Liability insurance coverage is an "occurrence" policy, it shall contain no "sunset clause" or similar provision intending to cancel coverage on claims following any cancellation or non-renewal of such coverage.
* * *
1.6 DEDUCTIBLES. Any and all deductibles in the above-described insurance policies shall be assumed by, for the account of and at [Kinder Morgan]’s sole risk.
B. Summary of the disputes
Among the "minimum required coverages" described in Section 1.1 are commercial general liability ("CGL") insurance and excess liability insurance. From March 2009 until at least June 2013, TGS or Kinder Morgan maintained general liability insurance policies. All agree that Article 9 and Section 1.3 require Kinder Morgan to ensure that Total and its employees are named as additional insureds on the minimum required coverages. We are told that Total and its employees qualified as additional insureds under the general liability policies in effect from March 2009 to June 2013. Kinder Morgan's general liability policy that expired in June 2013 defined "additional insured" to include:
For convenience, we omit the term "Exhibit X" when referring to the sections within that exhibit.
Any person or organization, other than the Named Insured, to such extent and for such limits of liability (subject always to the terms and Limits of Insurance of this Policy) as the Named Insured has agreed in writing prior to an "occurrence" to provide insurance for such person or organization....
We agree that, if required by written contract, any person, firm or organization is included as an additional insured but only in respect of liability arising out of operations (including "your work" and "your product" and included in the "products-completed operations hazard") performed by the named insured and only to the extent required under said written contract.
At some time after June 2013, but before the Counts accident in 2015, Kinder Morgan allowed its general liability policy or policies to lapse. It replaced that coverage with a $25 million excess liability policy containing a $10 million self-insured retention ("SIR"). We refer to this policy as the "Lloyd's Policy." Important to arguments in this appeal, the "additional insured" definition in the Lloyd's Policy differs from the "additional insured" definition in Kinder Morgan's prior general liability policies. The Lloyd's Policy defined "Additional Insured" to mean:
any person or organization to whom the NAMED INSURED is obliged by a written CONTRACT entered into before any relevant OCCURRENCE and/or CLAIM to provide insurance such as is afforded by this Policy but only with respect to BODILY INJURY, PERSONAL INJURY or PROPERTY DAMAGE arising out of operations conducted by the NAMED INSURED but only to the extent required by any indemnity given by the NAMED INSURED under said CONTRACT to the ADDITIONAL INSURED. (Bold emphasis added).
Because the Lloyd's Policy's additional insured definition is tied to Kinder Morgan's indemnity obligation to Total under the Contract, we refer to the Contract's indemnification clause, which states:
ARTICLE 8 — INDEMNIFICATION
[KINDER MORGAN] AND TOTAL HERETO AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE OTHER PARTY, ITS OFFICERS AND DIRECTORS ... FROM AND AGAINST ALL CLAIMS, LOSSES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS), DEMANDS, DAMAGES, SUITS, JUDGMENTS, AND LIABILITIES FOR ... PERSONAL INJURY OR DEATH ... ("CLAIMS") TO THE PROPORTIONATE EXTENT THAT IT, THE INDEMNITOR, HAS BEEN ADJUDGED SOLELY, JOINTLY, OR COMPARATIVELY LIABLE IN A COURT OF COMPETENT JURISDICTION FOR DAMAGES ARISING FROM SUCH CLAIMS.
Total demanded that Kinder Morgan provide defense and indemnity for the Counts Lawsuit to Total and its employee defendants. Kinder Morgan refused. While Kinder Morgan acknowledged that the Contract required it to obtain a $1 million CGL policy and a $5 million excess liability policy—it had neither in 2015—Kinder Morgan contended that the Lloyd's Policy satisfied its contractual insurance obligations. Moreover, according to Kinder Morgan, it had no duty under Article 8 of the Contract to indemnify Total for its defense and settlement costs incurred in the Counts Lawsuit because Kinder Morgan had been non-suited and thus was not "adjudged ... liable." Kinder Morgan contended that Total's settlement contribution could only have been for Total's proportionate fault. Because it owed no indemnity under the Contract, Kinder Morgan asserted, Total and its employee defendants did not qualify as additional insureds under the Lloyd's Policy; they were not entitled to defense or indemnity under that policy; and Kinder Morgan had no duty to pay Total any portion of its $10 million SIR.
The Lloyd's Policy provides with regard to the SIR, "only payment of claims or defense expenses which, except for the amount thereof, would have been payable under this POLICY, may reduce or exhaust an underlying aggregate limit." According to Kinder Morgan, because the amount Total paid for defense and settlement was not payable under the Lloyd's Policy terms, Kinder Morgan was not obligated to pay any part of its SIR for Total's defense and settlement costs.
Total and Chubb sued Kinder Morgan to recover their defense costs and contributions to the Counts Lawsuit settlement. Total alleged that it was entitled to recover these amounts (paid for itself and its employees) as a beneficiary or additional insured under the Lloyd's Policy, and that Kinder Morgan had a duty to pay under that policy. Alternatively, Total and Chubb alleged that Kinder Morgan breached the Contract by: (1) failing to carry the required minimum types and amounts of insurance coverage and failing to comply with all Contract provisions applicable to those coverages, such as naming Total and its employees as additional insureds; and (2) failing to ensure that Total and its employees were included as additional insureds on any other policies Kinder Morgan obtained. Chubb asserted that it is subrogated to Total's rights because it contributed to the settlement on Total's behalf. Chubb also asserted claims for contribution, unjust enrichment, and quantum meruit.
The trial court ruled that Chubb is subrogated to Total's contract rights against Kinder Morgan. As no party disputes this conclusion, we accept it as established. See Rosetta Res. Operating, LP v. Martin , 645 S.W.3d 212, 226-27 (Tex. 2022).
Kinder Morgan filed a counterclaim seeking reimbursement of its settlement contribution. It alleged that it had no duty to contribute anything to the settlement because it had no liability and owed no indemnity under the Contract for the Counts Lawsuit.
C. Summary judgment proceedings
1. Kinder Morgan's first motion
The parties filed a series of summary judgment motions. First, Kinder Morgan filed a defensive motion for summary judgment on all claims. We summarize the arguments relevant to this appeal. In the first section of its motion, Kinder Morgan asserted that it was not obligated to pay any amount from its SIR layer toward Total's defense and settlement of the Counts Lawsuit because the claims against Total in that lawsuit did not fall within the scope of coverage provided to additional insureds under the Lloyd's Policy.
In the second section of its motion, Kinder Morgan contended that it did not breach the Contract's insurance requirements because the Lloyd's Policy was tantamount to a CGL/excess liability policy with combined limits of $6 million and Total was named an additional insured on that policy, as the Contract required. Further, regarding the Lloyd's Policy's additional insured definition, Kinder Morgan argued that nothing in the Contract prohibited it from limiting the scope of additional insured coverage to the extent of Kinder Morgan's indemnity duty under the Contract. Kinder Morgan also argued that it could not be liable for any breach of the Contract's thirty-day notice provision.
Appellants’ original petition did not allege that Kinder Morgan breached the Contract by failing to provide thirty days’ notice of a material insurance modification. Because all parties addressed the issue on the merits in their summary judgment briefing without objection, and because Kinder Morgan raised no challenge on lack-of-pleading grounds, we consider the theory as properly before the trial court.
2. Appellants’ first motions
In separate motions for partial summary judgment on liability, Total and Chubb contended that Kinder Morgan failed to comply with the Contract in several respects. Because Chubb is subrogated to Total's rights, we address appellants’ summary judgment arguments collectively unless otherwise indicated. We can fairly group their arguments into three categories. The first category concerns Kinder Morgan's alleged failure to procure and maintain the "minimum required coverages." Appellants argued that Kinder Morgan breached the Contract by failing to maintain primary CGL and "following form" excess coverages from reasonably acceptable insurance companies with an A.M. BEST rating of B or better, as required in Article 9 and Section 1.1, and by failing to name Total and its employees as additional insureds on all "primary and non-contributory insurance without limitation." Because Kinder Morgan did not maintain primary CGL coverage with an insurance company at the time of the accident, Chubb argued that Total was deprived of its opportunity to be defended or indemnified by an insurance company.
The second category of alleged breach concerned the Lloyd's Policy and its additional insured provision. Appellants argued that Kinder Morgan's transition to the Lloyd's Policy materially and detrimentally changed Total's additional insured status, which ultimately resulted in neither Total nor its defendant employees receiving coverage for the Counts Lawsuit. Under the Lloyd's Policy, a person or organization will qualify as an additional insured only if owed indemnity by Kinder Morgan under the Contract. According to appellants, that limitation had two relevant effects: it precluded additional insured coverage for Total because Kinder Morgan did not owe Total indemnity under the Contract due to the Counts family's non-suit of Kinder Morgan; and it precluded additional insured coverage for any Total employees because employees did not receive any benefit from the Contract's indemnification clause even if indemnity was owed to Total. Thus, neither Total nor its employees qualified as additional insureds under the Lloyd's Policy. Kinder Morgan's failure to ensure that Total and its employees received coverage as additional insureds under the Lloyd's Policy is a breach of the Contract, Total asserted, because Kinder Morgan was required by Article 9 and Section 1.3 to endorse "all insurance" to add Total and its employees as additional insureds. Further, Total claimed that the Contract does not permit Kinder Morgan to limit additional insured coverage to the Contract's indemnity duty, as the Lloyd's Policy does.
Third, appellants argued that Kinder Morgan breached the Contract by failing to give thirty days’ written notice to Total before eliminating general liability coverage in favor of the Lloyd's Policy and its SIR.
3. Initial orders and further motions
In two interlocutory orders, the trial court denied Kinder Morgan's motion for summary judgment, granted Total's and Chubb's motions as to liability on their claims for breach of the Contract, and granted Chubb's motion on its subrogation claim.
Total and Chubb then moved for final summary judgment. In this joint motion, appellants requested summary judgment on Kinder Morgan's counterclaim for reimbursement of its settlement contribution. Additionally, appellants argued that under the Contract: (1) Total was required to be an additional insured on all insurance policies Kinder Morgan obtained, including the Lloyd's Policy, not just on the contractually required coverages; and (2) the amounts appellants incurred in defense and settlement of the Counts Lawsuit were recoverable as damages as if Total had been covered under the Lloyd's Policy. More specifically, appellants argued that if Kinder Morgan had not breached the Contract by limiting additional insured coverage under the Lloyd's Policy to the Contract's indemnity clause, then Kinder Morgan would have been obligated to pay appellants’ damages from its SIR layer. In other words, Total sought damages in the amount it claimed it would have been owed if the Lloyd's Policy's additional insured provision had not been limited to Kinder Morgan's contractual indemnity liability but instead was written differently to include Total and its employees as additional insureds "without limitation"—as Total contends the Contract mandates. Total argued that its coverage under the Lloyd's Policy should have been co-extensive with Kinder Morgan's coverage.
Kinder Morgan filed a cross-motion for partial summary judgment on damages, in which Kinder Morgan raised two arguments: (1) Total's claimed damages are consequential, not direct, and therefore they are barred by the Contract's consequential damages exclusion provision; and (2) Total's and Chubb's damages, if any, are limited to $6 million because that was the minimum amount of coverage required by the Contract and because the additional insured obligation did not reach voluntary coverages such as the Lloyd's Policy.
4. Final summary judgment
The trial court signed a corrected final summary judgment in which it granted each party's motion in part and denied each motion in part. We quote the relevant language:
1. KINDER MORGAN's MPSJ is hereby DENIED in part[ ]. The Court finds, as a matter of law, that TOTAL's damages as asserted herein are direct and not consequential; and, therefore, KINDER MORGAN's affirmative defense based upon the contractual exclusion of liability for consequential damages in Article 23 of the Crane Contract ("the Contract") fails as a matter of law.
2. TOTAL's MFSJ is hereby GRANTED in part. Specifically, the court finds that (as previously ruled in the August 17, 2019 interlocutory Order) KINDER MORGAN breached the Contract by:
a. Failing to carry the required minimum insurance policies (not less than $1 million Commercial General Liability [CGL] and not less than $5 million follow form excess (umbrella) liability) in accordance with the terms of the Contract; and by
b. Failing to make TOTAL and its employees additional insureds on the Contract's required minimum insurance policies.
3. KINDER MORGAN's breaches of the Contract caused TOTAL damages by depriving TOTAL and its employees of primary and non-contributory coverage of the underlying claims arising out of the fatal injury of Gary Counts. Further, pursuant to its insurance policy issued to TOTAL, CHUBB is subrogated to TOTAL's right to recover for KINDER MORGAN's contractual breaches as set forth herein.
4. The Court further finds that TOTAL's damages for the foregoing breaches of contract are limited to the $6 million minimum policy limits required by the terms of the Contract. Specifically, the Court adopts KINDER MORGAN's interpretation of the contract's terms on this point because, without limitation: (a) its obligation to provide insurance coverage extends (per Article 9 of the Contract) to the "insurance coverage as set forth on Exhibit ‘X’ "; (b) the requirement to name TOTAL as additional insured likewise relates to those policies "[a]s outlined in greater detail in Exhibit X" and, per Section 1.3 of Exhibit X, "to the extent required by the Contract ..."; (c) Exhibit X references neither KINDER MORGAN's $10 million self-insured retention nor its $25 million excess (umbrella) liability coverage (which, undisputedly, is not "follow form" of the required CGL coverage); and (d) Section 1.3(b) of Exhibit X clarifies that it is the "coverage provided to the Additional Insureds by [KINDER MORGAN's]
insurance under the Contract " that must be primary and non-contributory. (Emphasis added.)
5. TOTAL's interpretation of the Crane Contract's additional [insured] requirements effectively reads the prefatory phrase – "[a]s outlined in greater detail in Exhibit X" – out of the contract, contrary to Texas law. The Court further finds that Article 9's phrase, "whether required hereby," modifies the immediately preceding exclusion respecting Worker's Compensation and Employer’ [sic] Liability coverages rather than the more distan[t] reference to "all insurance carried by [KINDER MORGAN]" [as outlined in Exhibit X].
6. Accordingly, and to the extent described above, KINDER MORGAN's MPSJ is hereby GRANTED in part, and TOTAL's MFSJ is hereby DENIED in part, with respect to the question whether TOTAL may recover more than $6 million on TOTAL's breach of contract claims against KINDER MORGAN as found by the Court.
7. It is, accordingly, ORDERED, ADJUDGED and DECREED that:
a. TOTAL and CHUBB shall recover from KINDER MORGAN actual damages in the amount of $1,000,000.00[ ] plus prejudgment [interest] at 5% per annum as and from August 3, 2016 to the date of this Judgment; AND
b. TOTAL and CHUBB shall have and recover from KIDNER MORGAN post-judgment interest on the above sums awarded herein at a rate of 5% per annum as and from the date of this Judgment until the date said sums are paid in full.
The parties assert that the award includes an "offset" in the amount of Kinder Morgan's settlement contribution.
All parties have appealed the trial court's judgment.
Issues Presented
As appellants, Total and Chubb jointly present four issues, the first two of which pertain to Kinder Morgan's additional insured obligations under the Contract. First, appellants contend the trial court erred in concluding that the Contract's additional insured requirements apply only to the contractually required minimum coverages described in Section 1.1, and not to "all insurance carried" by Kinder Morgan, including the Lloyd's Policy. Appellants say that Kinder Morgan had a duty to name Total and its employees as additional insureds on the Lloyd's Policy, and Kinder Morgan breached that duty. Further, as the appropriate remedy, Kinder Morgan must pay appellants’ costs "as if" Total and its employees had been "properly covered" as additional insureds by the Lloyd's Policy. Moreover, appellants argue in their second issue that the trial court erred in ruling that Total's damages for the breaches it established are limited to $6 million rather than the higher limits of the Lloyd's Policy. In their third issue, appellants argue that Kinder Morgan breached the Contract by failing to comply with the thirty-day notice requirement for material insurance modifications. Finally, they claim the trial court erred in permitting Kinder Morgan to "offset" its contract liability by the amount it contributed to the Counts Lawsuit settlement.
Kinder Morgan brings two cross-issues. First, it contends the trial court erred in rendering judgment for appellants on the claim that Kinder Morgan breached the Contract by failing to maintain the minimum required coverages because appellants did not show that the breach caused damages. Next, it argues that any damages are barred by the Contract's consequential damages exclusion, and the trial court erred in concluding otherwise. In a separate argument in its principal brief (though not specifically identified as a cross-issue), Kinder Morgan asks that the judgment be reformed "to not merely offset Kinder Morgan's contribution against a larger award, but to render a judgment that Kinder Morgan actually recover its contribution."
Standard of Review
We review summary judgment rulings de novo. A plaintiff moving for traditional summary judgment on its cause of action must present evidence proving each element of the claim. In contrast, a defendant who moves for traditional summary judgment on the plaintiff's claim must conclusively negate at least one element of the claim or conclusively establish each element of an affirmative defense. In either event, to prevail the movant must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. If the movant carries this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. On review, we construe the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if a reasonable juror could and disregarding contrary evidence unless a reasonable juror could not.
Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003).
See Katy Venture, Ltd. v. Cremona Bistro Corp. , 469 S.W.3d 160, 163 (Tex. 2015) (per curiam) ; Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999) ; see also Tex. R. Civ. P. 166a(a).
KCM Fin. LLC v. Bradshaw , 457 S.W.3d 70, 79 (Tex. 2015).
See Tex. R. Civ. P. 166a(c) ; Provident Life , 128 S.W.3d at 215-16.
Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018).
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009).
When parties file competing summary judgment motions on the same issues and the trial court grants one motion and denies the other, we consider the summary judgment evidence presented by both sides, determine all questions presented, and, if we determine that the trial court erred, render the judgment the trial court should have rendered. "On cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law."
See Tarr v. Timberwood Park Owners Ass'n, Inc. , 556 S.W.3d 274, 278 (Tex. 2018) ; Argonaut Ins. Co. v. Baker , 87 S.W.3d 526, 529 (Tex. 2002) ; Texan Land & Cattle II, Ltd. v. ExxonMobil Pipeline Co. , 579 S.W.3d 540, 542 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
City of Richardson v. Oncor Elec. Delivery Co. , 539 S.W.3d 252, 259 (Tex. 2018).
To recover on a breach of contract claim, a plaintiff must establish (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach. Only the third and fourth elements are disputed. In essence, appellants have alleged three distinct breaches. We address each in turn before discussing damages.
See, e.g., Petroleum Workers Union of the Rep. of Mex. v. Gomez , 503 S.W.3d 9, 39 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ; Grynberg v. Grey Wolf Drilling Co. , 296 S.W.3d 132, 136 (Tex. App.—Houston [14th Dist.] 2009, no pet.). "A breach occurs when a party fails or refuses to do something it has promised to do." Gomez , 503 S.W.3d at 39.
Analysis
I. Breach
A. Whether appellants proved their right to judgment on the claim that Kinder Morgan breached the Contract by failing to maintain the minimum required coverages under Section 1.1
We begin with the claim on which appellants prevailed in the trial court: that Kinder Morgan breached the Contract by failing to maintain the minimum required coverages as described in Section 1.1 and by failing to name Total and its employees as additional insureds on those coverages. The corrected final judgment orders that appellants recover damages from Kinder Morgan based on this claim. Kinder Morgan challenges this ruling in its first cross-issue.
Article 9 of the Contract requires Kinder Morgan to "cause to be issued and maintained insurance coverage as set forth on Exhibit ‘X’." Exhibit X is entitled "Insurance Requirements." Section 1.1 describes the "minimum required coverages" Kinder Morgan must "provide and maintain in effect," which include CGL coverage and excess liability coverage, following form. The insurance described in Section 1.1 must be maintained "with insurance companies" reasonably acceptable to Total, with an "A.M. BEST rating of B or better," and must be in the minimum amounts listed of $1 million for CGL coverage and $5 million in excess liability coverage. The requirement that Kinder Morgan obtain CGL and following form excess coverages from insurance companies in the stated minimum amounts is unambiguous.
In its first summary judgment motion, Chubb argued that Kinder Morgan failed to comply with the Contract by: (1) failing to maintain any CGL and excess coverage with insurance companies; and (2) failing to name Total and its employees as additional insureds on those required, but unobtained, coverages. Chubb attached a copy of the Contract and a copy of the Lloyd's Policy to its motion. As Chubb put it, "[b]y electing to have a $10 million SIR in lieu of the required primary and excess policies, Kinder Morgan breached the above provisions." Similarly, Total argued in its first summary judgment motion that Kinder Morgan breached the Contract because it failed to extend additional insured status to Total and its employees. Kinder Morgan acknowledged that it maintained no CGL and excess coverages with insurance companies at the time of Counts's death.
The trial court agreed with appellants, ruling that Kinder Morgan breached the Contract by failing to carry the minimum required insurance coverages and by failing to make Total and its employees additional insureds on those required minimum policies. Because the Contract's requirement to maintain these minimum coverages is plain, and because it is undisputed Kinder Morgan did not maintain them, we agree that Kinder Morgan breached the Contract in the respects stated in the corrected judgment as a matter of law. To the extent Kinder Morgan suggests that the Lloyd's Policy satisfied its insurance obligations under Section 1.1, it is incorrect because the Lloyd's Policy is not of a type described in Section 1.1. Accordingly, we hold that the first three elements of appellants’ contract claim based on Kinder Morgan's failure to maintain the minimum required coverages under Section 1.1, and its failure to name Total and its employees as additional insureds on those coverages, are established conclusively on this record. The trial court did not err in this regard.
See, e.g., Tex. Delta Mech., Inc. v. Rep. Underwriter's Ins. Co. , No. 05-09-00940-CV, 2011 WL 2572492, at *3-4 (Tex. App.—Dallas June 30, 2011, no pet.) (mem. op.) (party breached contract by failing to include other party as additional insured on its policies); Amtech Elevator Servs. Co. v. CSFB 1998-P1 Buffalo Speedway Office Ltd. P'ship , 248 S.W.3d 373, 381 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (party who obtained insurance policy that did not comply with terms of contract was in breach); see also Bayou Steel Corp. , 642 F.3d at 509 ; Austin Prop. Assocs. LLLP v. Huntington Beach 2 LLC , No. A-16-CA-1080-SS, 2017 WL 2334974, at *3-4 (W.D. Tex. May 30, 2017) (order) (finding that an SIR of $2 million breached a contract requiring insurance with a "responsible insurance company"); Pac-Van Ins. v. CHS, Inc. , No. 3:12-CV-341, 2014 WL 1322761, at *2-5 (S.D. Tex. Mar. 31, 2014) (mem. & order) (company's purchase of $1 million excess policy, triggered only after its $2 million SIR was exhausted, breached agreement to obtain $1 million CGL policy).
See Nat'l Union Fire Ins. Co. of Pittsburgh v. Exxon Mobil Corp. , No. 01-19-00852-CV, 2021 WL 4268898, at *7-8 (Tex. App.—Houston [1st Dist.] Sept. 21, 2021, pet. filed) (mem. op.) (an excess liability policy is not the same thing as a CGL policy); Austin Prop. Assocs. , 2017 WL 2334974, at *3-4 ; Pac-Van Ins. , 2014 WL 1322761, at *2-5.
As we explain below, however, appellants did not conclusively establish damages resulting from this breach.
B. Whether appellants proved their right to judgment on the claim that Kinder Morgan breached the Contract by (1) limiting the scope of Total's additional insured coverage on the Lloyd's Policy, and (2) failing to name Total's employees as additional insureds on that policy
We next consider whether Kinder Morgan's contractual duty to name Total and its employees as additional insureds applies to the Lloyd's Policy and, if so, whether appellants established a right to recover for breach of that duty. In their first and second issues, appellants argue that Kinder Morgan breached the Contract by limiting the scope of additional insured coverage under the Lloyd's Policy, and that Kinder Morgan is therefore responsible in damages up to the limits of that policy. Appellants request that we render judgment in their favor in this respect.
This alleged breach is based on the Lloyd's Policy's "additional insured" definition, which in key part limits who qualifies as an additional insured to any person or organization to whom Kinder Morgan owes indemnity under Article 8 of the Contract. Under this definition, all agree that Total would qualify as an additional insured in at least some circumstances. Yet, because neither Total nor its employees are entitled to Article 8 indemnity for the Counts Lawsuit, they do not qualify as additional insureds in this case under the Lloyd's Policy as it is written. Appellants contend that the above limitation on the scope of additional insured coverage is not permitted by the Contract and deprived Total of the "full benefits" of additional insured coverage to which appellants say the parties agreed. Separately, appellants argue that linking the additional insured definition to Kinder Morgan's indemnity duty ensured that Total's employees would never qualify as additional insureds because Total's employees receive no benefit from Kinder Morgan's Article 8 indemnity duties. In short, according to appellants, tying the Lloyd's Policy's additional insured definition to the Contract's indemnity clause breached Kinder Morgan's additional insured obligations under the Contract because it precluded additional insured coverage to Total in this instance, and it precluded additional insured coverage to Total's employees in all instances.
1. The Contract requires Kinder Morgan to make Total and its employees additional insureds on the Lloyd's Policy. Appellants cannot prevail on this breach theory unless Kinder Morgan's additional insured obligations apply to the Lloyd's Policy, which Kinder Morgan acquired voluntarily and is not of a "required" type described in Section 1.1. As we explained above, the Contract unambiguously requires Kinder Morgan to make Total and its employees additional insureds on the minimum required coverages. Appellants contend that this duty extends to the Lloyd's Policy as well because Total and its employees must be named as additional insureds on "all insurance carried" by Kinder Morgan, not just on the minimum required coverages. Whether Kinder Morgan had a duty to name Total and its employees as additional insureds on the Lloyd's Policy turns on the meaning of "all insurance carried."
Our initial task is to determine whether we can answer this question based on the Contract as written. We consider a contract's language as a whole in light of well-settled interpretation principles. Our primary concern is to ascertain and give effect to the written expression of the parties’ intent. We seek the meaning of provisions to which the parties have agreed. To that end, we afford contract terms their plain, ordinary, and generally accepted meanings, considering the context in which they are used, unless the contract itself shows them to be used in a technical or different sense. Objective manifestations of intent control, not what one side or the other alleges they intended to say but did not. Courts do not interpret contracts as if to insert provisions the parties could have included, nor do we imply restraints for which they have not bargained. We also construe contracts from a utilitarian standpoint, bearing in mind the particular activity sought to be served, and we avoid, when possible and proper, a construction that is unreasonable, inequitable, or oppressive. We examine and consider the entire writing to harmonize and give effect to all provisions so that none will be rendered meaningless. And we avoid constructions of contract language that would lead to absurd results. If we determine that the language "can be given a certain or definite legal meaning or interpretation, then the contract is not ambiguous and we will construe it as a matter of law."
See J.M. Davidson, Inc. v. Webster , 128 S.W.3d 223, 229 (Tex. 2003).
Rosetta Res. Operating, LP , 645 S.W.3d at 218-19.
Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc. , 473 S.W.3d 296, 305 (Tex. 2015) ; Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am. , 341 S.W.3d 323, 333 (Tex. 2011).
See, e.g., Murphy Expl. & Prod. Co.-USA v. Adams , 560 S.W.3d 105, 110 (Tex. 2018).
Rosetta Res. Operating , 645 S.W.3d at 218-19.
Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 662 (Tex. 2005) ; see also Carnegie Homes & Constr. LLC v. Turk , No. 14-16-00260-CV, 2017 WL 3927290, at *10 (Tex. App.—Houston [14th Dist.] Sept. 7, 2017, no pet.) (mem. op.).
URI, Inc. v. Kleberg County , 543 S.W.3d 755, 763-64 (Tex. 2018).
See, e.g., Murphy Expl. , 560 S.W.3d at 111-13 ; URI , 543 S.W.3d at 771 n.81 ; Tenneco Inc. v. Enter. Prods. Co. , 925 S.W.2d 640, 646 (Tex. 1996).
Frost Nat'l Bank v. L&F Distrib., Ltd. , 165 S.W.3d 310, 312 (Tex. 2005) ; Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd. , 940 S.W.2d 587, 589 (Tex. 1996) ; Nat'l City Bank of Ind. v. Ortiz , 401 S.W.3d 867, 878 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (op. on reh'g).
J.M. Davidson , 128 S.W.3d at 229.
Hemyari v. Stephens , 355 S.W.3d 623, 626 (Tex. 2011) (per curiam).
Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc. , 590 S.W.3d 471, 479 (Tex. 2019).
To recap, the key language in dispute appears in Article 9 and Section 1.3. The second sentence of Article 9, bolded below, refers directly to Kinder Morgan's additional insured obligations.
ARTICLE 9 — INSURANCE
Before any of the Work is commenced and during the entire progress of the Work, [Kinder Morgan] shall, at [Kinder Morgan]’s own cost and expense, cause to be issued and maintained insurance coverages as set forth on Exhibit "X" attached hereto and made a part hereof for all purposes. As outlined in greater detail in Exhibit X, all insurance carried by [Kinder Morgan], except Worker's Compensation and Employer[s]’ Liability, whether required hereby, shall, be endorsed to make [TOTAL] and its ... employees, ... additional insureds (Additional Insureds)[ ] and all insurance carried by [Kinder Morgan] shall be endorsed to provide that underwriters and insurance companies of [Kinder Morgan] shall not have any right of subrogation against the Additional Insureds. Prior to commencing the Work, [Kinder Morgan] shall supply to TOTAL insurance certificates evidencing that the minimum insurance is in full force and effect and that thirty (30) days written notice shall be given to TOTAL prior to any cancellation or material modification of any policies.
Although capitalized, the term "Additional Insured" is not defined in the Contract.
Article 9 thus directs us to Exhibit X, where Kinder Morgan's additional insured obligations are "outlined in greater detail." The only part of Exhibit X outlining in greater detail additional insured duties is Section 1.3, which provides,
1.3 ADDITIONAL INSUREDS. [TOTAL], ... and their respective employees, ... (collectively referred to as Additional Insureds) shall be named as additional insureds to the extent required by the Contract, except Workers’ Compensation and Employers’ Liability....
(a) SUBROGATION
All policies shall be amended or endorsed to provide that underwriters and insurance companies of [Kinder Morgan] shall not have any right of subrogation against the Additional Insureds.
(b) PRIMARY INSURANCE
Any coverage provided to the Additional Insureds by [Kinder Morgan] under this Contract is primary insurance and shall not be considered contributory insurance with any insurance policies of the Additional Insureds.
(c) OCCURRENCE MADE BASIS
It is agreed that all policies and coverages required by the Contract shall extend to all occurrences that occurred from the time of commencement of Work until completion of Work and removal of all remaining materials, supplies and personnel from the Work Site. If any coverage is written on a claims-made basis, the policy date or retroactive date shall predate this Contract and the termination date of the policy or applicable extended reporting period shall be not earlier than twenty-four (24) months from [Kinder Morgan]’s completion of the Work. If the Commercial General Liability insurance coverage is an "occurrence" policy, it shall contain no "sunset clause" or similar provision intending to cancel coverage on claims following any cancellation or non-renewal of such coverage.
The introductory paragraph in Section 1.3 states that Total and its employees shall be named as additional insureds "to the extent required by the Contract." Under Article 9, Kinder Morgan's duty to endorse its insurance policies to make Total and its employees additional insureds applies to "all insurance carried by [Kinder Morgan], except Worker's Compensation and Employer[s]’ Liability, whether required hereby." The parties dispute whether "all insurance carried" means only the minimum coverages required by Section 1.1, or all insurance Kinder Morgan obtained regardless whether required by the Contract.
a. The trial court's judgment
As we interpret the trial court's judgment, it rejected appellants’ argument and concluded as a matter of law that Kinder Morgan's additional insured obligations apply only to the minimum coverages required by Section 1.1. The court adopted that reasoning as the basis for ruling that Total's damages resulting from Kinder Morgan's failure to maintain the minimum required coverages are limited to $6 million. The court based its interpretation on several contextual clues in Article 9 and Exhibit X, as well as the court's determination that the phrase "whether required hereby" did not modify "all insurance carried," as appellants had argued. Paragraphs 4 and 5 of the judgment state:
4. The Court further finds that TOTAL's damages for the foregoing breaches of contract are limited to the $6 million minimum policy limits required by the terms of the Contract. Specifically, the Court adopts KINDER MORGAN's interpretation of the contract's terms on this point because, without limitation: (a) its obligation to provide insurance coverage extends (per Article 9 of the Contract) to the "insurance coverage as set forth on Exhibit ‘X’ "; (b) the requirement to name TOTAL as additional insured likewise relates to those policies "[a]s outlined in greater detail in Exhibit X" and, per Section 1.3 of Exhibit X, "to the extent required by the Contract ..."; (c) Exhibit X references neither KINDER MORGAN's $10 million self-insured retention nor its $25 million excess (umbrella) liability coverage (which, undisputedly, is not "follow form" of the required CGL coverage); and (d) Section 1.3(b) of Exhibit X clarifies that it is the "coverage provided to the Additional Insureds by [KINDER MORGAN's] insurance under the Contract " that must be primary and non-contributory. (Emphasis added.)
5. TOTAL's interpretation of the Crane Contract's additional [insured] requirements effectively reads the prefatory phrase – "[a]s outlined in greater detail in Exhibit X" – out of the contract, contrary to Texas law. The Court further finds that Article 9's phrase, "whether required hereby," modifies the immediately preceding exclusion respecting Worker's Compensation and Employer’ [sic] Liability coverages rather than the more distan[t] reference to "all insurance carried by [KINDER MORGAN]" [as outlined in Exhibit X].
Although the particular issue decided in paragraph 4 was whether Total's damages for Kinder Morgan's breach in failing to maintain the minimum required coverages were limited to $6 million, the court's reasoning also necessarily forecloses more broadly Total's theory that Kinder Morgan had a contractual duty in the first instance to ensure that Total and its employees were additional insureds under the Lloyd's Policy.
After analyzing the agreement under the applicable rules of contract interpretation, we conclude that the only reasonable interpretation of the additional insured provisions is that they require Kinder Morgan to make Total and its employees additional insureds not only on the minimum required coverages but also on any other insurance Kinder Morgan carried that is applicable to the work.
b. Context
The meaning of text is informed by context. We attempt to discern the plain meaning of disputed contractual language in the context of surrounding words, sentences, and paragraphs. The trial court considered Kinder Morgan's additional insured requirements in light of both Article 9 and Exhibit X. Based on the language cited in the judgment, the trial court appeared to reason that because Article 9's first two sentences refer to Exhibit X, and because Exhibit X includes a description of minimum required coverages but no reference to optional coverages, it follows that the additional insured obligations apply only to the required coverages. Considering context, then, the word "all" as used in the sentence "all insurance carried" refers to all the insurance "outlined in greater detail in Exhibit X" and none other. Kinder Morgan urges us to adopt this reading.
See, e.g., URI , 543 S.W.3d at 764 (words must be construed in context); Kachina Pipeline Co. v. Lillis , 471 S.W.3d 445, 451 (Tex. 2015) (considering specific context in which provision appears); Coker v. Coker , 650 S.W.2d 391, 394 (Tex. 1983) (paragraph considered in conjunction with surrounding paragraphs).
To be sure, reading Article 9 and Exhibit X together, Kinder Morgan's additional insured obligations plainly apply to the minimum required coverages in Section 1.1; but it does not follow that those obligations apply only to the minimum coverages. The subject of Article 9's first sentence is Kinder Morgan's minimum required coverage obligations, which are described in Section 1.1 of Exhibit X. The subject of Article 9's second sentence is Kinder Morgan's additional insured obligations. The second sentence's prefatory clause is, "[a]s outlined in greater detail in Exhibit X." But the only part of Exhibit X that "outline[s] in greater detail" Kinder Morgan's additional insured obligations is Section 1.3, not Section 1.1. And because the Lloyd's Policy is not of a type described in Section 1.1, that section does not apply to it.
As appellants note, the common meaning of "all" refers to "the whole amount, quantity, or extent of" a particular group or thing. "All" also means "every." Critically, neither Article 9 nor Exhibit X contains language limiting the broadly worded phrase "all insurance carried" only to the contractually required insurance in Section 1.1, when language expressing such an intent could have been used. For example, Article 9 does not say "all insurance required by the Contract "; nor does it say, "all insurance carried as required by Section 1.1. " The parties could have inserted such language, but they did not do that. This is evidence that the Article 9 phrase was not intended to be limited only to Section 1.1 coverages. We are to avoid reading limiting language into contracts that the parties chose not to include. Contrary to Kinder Morgan's view, Article 9's references to "Exhibit X" do not establish that Article 9's and Section 1.3's additional insured requirements are limited to the Section 1.1 minimum required insurance coverages.
See "All," Merriam-Webster, https://www.merriam-webster.com/dictionary/all (last visited July 21, 2022).
Id.
See TCI W. End, Inc. v. City of Dallas , 486 S.W.3d 692, 696-97 (Tex. App.—Dallas 2016, pet. denied). Compare the instant text with that at issue in O'Brien’s Response Management, L.L.C. v. BP Exploration & Productions, Inc. , 24 F.4th 422, 430 (5th Cir. 2022). There, BP argued that the phrase "all policies" in a contract to procure additional-insured coverage meant "all policies procured by O'Briens." Id. The court rejected BP's interpretation because the next sentence contained explicit language limiting the reference to "the policies listed above. " Id. (emphasis added). Here, the Contract does not contain similar limiting words. See also In re Deepwater Horizon , 470 S.W.3d 452, 457 (Tex. 2015) (orig. proceeding) ("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. ’ ").
See, e.g., Murphy Expl. , 560 S.W.3d at 111-13 ; URI , 543 S.W.3d at 771 n.81 ; Tenneco , 925 S.W.2d at 646.
Appellants direct us to other provisions they say align with their interpretation. They include the last clause in the second sentence of Article 9, which requires that "all insurance carried by [Kinder Morgan]" be endorsed to waive "any right of subrogation against the Additional Insureds," as well as Section 1.3(a)’s requirement that "[a]ll policies shall be amended or endorsed to ... [waive] any right of subrogation against the Additional Insureds." Their interpretation is also consistent with Section 1.3's introductory paragraph, which excepts only Worker's Compensation and Employers’ Liability from Kinder Morgan's additional insured obligation.
Referring to Section 1.3's introductory paragraph, the trial court noted language that Total and its employees shall be named as additional insureds "to the extent required by the Contract." According to Kinder Morgan, this phrase means that its duty to make Total and its employees additional insureds extends only to the policies required by Section 1.1. We disagree. The phrase simply means that, to the extent the Contract requires Total and its employees be provided coverage as additional insureds, Kinder Morgan must do so.
The trial court also relied on Section 1.3(b)’s language, which states, "[a]ny coverage provided to the Additional Insureds by [Kinder Morgan] under this Contract is primary insurance and shall not be considered contributory insurance with any insurance policies of the Additional Insureds." The court highlighted the italicized text. But this section likewise does not support a limitation of the additional insured obligations to only the minimum required coverages. "Under" means "in accordance with" or "according to." So, Section 1.3(b) means that any additional insured coverage provided by Kinder Morgan's insurance policies in accordance with the Contract—whether required or voluntarily obtained—is to be considered primary and non-contributory vis-à-vis Total's coverages.
See "Under," 18 Oxford English Dictionary 950 (2d ed. 1989) (defining "under" as "[i]n accordance with"); Black's Law Dictionary 1525 (6th ed. 1990) (defining "under" as "according to").
In sum, Article 9 and Exhibit X simply do not contain language restricting the additional insured obligations only to the minimum required coverages described in Section 1.1. Because Kinder Morgan's context-based interpretation of the relevant language would require us to imply limitations to which the parties have not agreed, it is unreasonable.
c. "Whether required hereby"
The judgment is also based on the phrase "whether required hereby" and its proper referent in the sentence, "[a]s outlined in greater detail in Exhibit X, all insurance carried by Kinder Morgan, except Worker's Compensation and Employer[s]’ Liability, whether required hereby , shall, be endorsed to make [TOTAL] and its ... employees ... additional insureds ...." The trial court relied on the grammatical construction of this critical sentence, concluding that "Article 9's phrase, ‘whether required hereby,’ modifies the immediately preceding exclusion respecting Worker's Compensation and Employer’ [sic] Liability coverages rather than the more distant reference to ‘all insurance carried by [KINDER MORGAN]’ [as outlined in Exhibit X]."
Appellants disagree. They say the modifier "whether required hereby" refers to "all insurance carried." Appellants construe the trial court's reading as grounded on the last-antecedent canon, which holds that in most cases, unless a contrary intention appears, a qualifying phrase should be applied only to the portion of the sentence immediately preceding it. According to appellants, however, that doctrine does not apply here because a comma exists between "whether required hereby" and the closest potential antecedent. This court has recognized such an exception to the rule. Consistently, the rule must be applied with due regard to the entire instrument. Relative or qualifying phrases may be extended further than the nearest antecedent when clearly required. Under appellants’ interpretation, then, the sentence effectively means: "all insurance carried by [Kinder Morgan], whether required hereby, except Worker's Compensation and Employer[s]’ Liability, shall, be endorsed to make [TOTAL] and ... their respective employees, ... additional insureds (Additional Insureds)."
See, e.g., Barnhart v. Thomas , 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (citing 2A N. Singer, Sutherland on Statutory Construction § 47.33, p. 369 (6th rev. ed. 2000)); City of Dallas v. Stewart , 361 S.W.3d 562, 571 n.14 (Tex. 2012) ; Mikob Props., Inc. v. Joachim , 468 S.W.3d 587, 595-96 (Tex. App.—Dallas 2015, pet. denied) ; Certain Underwriters at Lloyd's of London v. Cardtronics, Inc. , 438 S.W.3d 770, 782 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ; see also Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 144 (2012) ("Scalia and Garner"). Scalia and Garner, however, would likely characterize the "nearest-reasonable-referent" canon as the applicable canon in this instance because the modifier is not a pronoun. See Scalia and Garner at 152.
Scalia and Garner agree that, because punctuation is a permissible indicator of meaning, a "properly placed comma" can "cancel" the last-antecedent canon. See Scalia and Garner at 161.
See 8100 N. Freeway Ltd. v. City of Houston , 329 S.W.3d 858, 862 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
City of Corsicana v. Willmann , 147 Tex. 377, 216 S.W.2d 175, 176 (1949).
Id.
Kinder Morgan does not rely on the last-antecedent canon—it says the trial court never claimed to—but posits that the judge may have simply picked the "more natural" reading. Under Kinder Morgan's interpretation, the sentence would read: "all insurance carried by [Kinder Morgan] ... shall, be endorsed to make TOTAL ... additional insureds ... (except Worker's Compensation or Employers’ Liability whether or not Worker's Compensation or Employers’ Liability is required hereby)."
The ostensible application of the last-antecedent canon was only one of several considerations by the trial court. But the phrase's proper interpretation is important, so we examine the sentence in some detail. The principal disagreement is the appropriate referent or antecedent of the modifying phrase "whether required hereby." The main clause "all insurance carried" is followed immediately by the first modifying phrase, "except Worker's Compensation and Employer[s]’ Liability." The "except" phrase, set off by commas, is a parenthetical, nonrestrictive phrase. The "except" phrase clearly refers to the main clause because the word "except" is a preposition used to introduce the only thing not included in the main statement. The parties do not dispute that the "except" phrase refers to the main clause.
At least one source defines "antecedent" to mean "nouns or phrases within a sentence that are later substituted by indefinite pronouns (it, they, etc.) or demonstrative pronouns (that, this), or are modified within the sentence by adjectives, adverbs, or phrases." Terri LeClercq, Doctrine of the Last Antecedent: The Mystifying Morass of Ambiguous Modifiers , 2 The Journal of the Legal Writing Institute 85 n.10 (1996) (citing Jabey Sutherland, Sutherland on Statutory Construction § 267 (1st ed. 1891)).
See The Chicago Manual of Style § 6.27 (17th ed. 2017) (describing nonrestrictive clauses); Texas Law Review, Manual on Usage & Style 11 (14th ed. 2017) ("A nonrestrictive clause or phrase provides additional or parenthetical information about the person, thing, or idea to which the clause or phrase refers."); William Strunk Jr. & E.B. White, The Elements of Style 3 (4th ed. 2000) ("Nonrestrictive relative clauses are parenthetic," such that "[c]ommas are therefore needed.").
The "except" phrase is immediately followed by another modifying phrase, "whether required hereby," which is also set off by commas. The adjective in the second modifying phrase has more than one potential antecedent: the thing to which it refers is either "all insurance carried" or "Worker's Compensation and Employer[s]’ Liability." Facially, it is unclear whether the second modifying phrase was intended (1) to refer back to the main clause or (2) to add information to the thought expressed in the "except" phrase (which itself merely adds information to the main clause). Thus, we have two modifying phrases in sequence, which creates linguistic ambiguity. Our task is to determine, if possible, which antecedent was intended.
See Shelby Cnty. State Bank v. Van Diest Supply Co. , 303 F.3d 832, 835 (7th Cir. 2002).
We first consider appellants’ argument. "Whether required hereby" reasonably could refer to "all insurance carried." Although the Contract requires certain types and amounts of insurance, it does not prohibit Kinder Morgan from obtaining other insurance. The parties, by specifically describing the coverages that are required "minimums," plainly left Kinder Morgan the option to acquire additional coverages and higher limits. Kinder Morgan agrees that the Contract "reference[s] other potential policies that the contractor might choose to obtain." Moreover, a party in Total's position has an incentive to want and mandate additional insured coverage not only for insurance policies the Contract requires but also for any other policies that the contractor may voluntarily acquire that are applicable to the work. This would not be the first contract to impose such a requirement. In that respect, "whether required hereby" reasonably could have been inserted to distinguish Article 9's second sentence from its neighbors. Read in that way, Article 9 would mean that, although Kinder Morgan must secure certain coverages at a minimum, in the event it chose to procure additional coverages, its additional insured obligations apply to those coverages too. We therefore conclude that appellants’ position that "all insurance carried" is the proper antecedent of "whether required hereby" is reasonable.
Consistently, under Texas law "it is possible for a named insured to purchase a greater amount of coverage for an additional insured than an underlying service contract requires." Deepwater Horizon , 470 S.W.3d at 462.
See, e.g., Getty Oil Co. v. Ins. Co. of N. Am. , 845 S.W.2d 794, 797 (Tex. 1992) ; Liberty Ins. Corp. v. SM Energy , C.A. No. H-12-3092, 2012 WL 6100303, at *1 (S.D. Tex. Dec. 7, 2021) (mem. & op.); Poirrier v. Baker Hughes, Inc. , C.A. No. 13-0873, 2014 WL 2801328, at *2 (W.D. La. June 17, 2014) (mem. ruling). The Contract language at issue differs from the language in Getty, Liberty Insurance , and Poirrier only in the respect that the nonrestrictive "except" phrase is inserted between the main clause "all insurance carried" and the modifier "whether required hereby."
Kinder Morgan, on the other hand, argues that "whether required hereby" modifies "Worker's Compensation and Employer[s]’ Liability." The modifier, Kinder Morgan says, clarifies that worker's compensation and employers’ liability coverage is excepted from the additional insured obligation regardless whether such coverage is required. This reading is untenable. "Whether required hereby" is not needed to establish that worker's compensation and employer liability coverages are excepted from the additional insured obligations. This is illustrated by Section 1.3, which makes exactly the same point but omits the "whether required hereby" phrase. Moreover, Kinder Morgan's interpretation is irrational because worker's compensation coverage is required by Section 1.1, as the Contract plainly states and Kinder Morgan acknowledges. In fact, Kinder Morgan had worker's compensation coverage in 2015. The parties could not have reasonably intended "whether required hereby" to clarify that worker's compensation coverage is optional under the Contract because it is not optional; the Contract mandates it. If "whether required hereby" does not refer to "all insurance carried," then it does no work and is superfluous. We presume the parties intended that all words bear a " ‘significance and meaning,’ " and we therefore prefer interpretations that harmonize and give meaning to all contract provisions. For these reasons, we conclude that Kinder Morgan's position that "whether required hereby" modifies "Worker's Compensation and Employer[s]’ Liability" is unreasonable.
See Transcor Astra Grp. S.A. v. Petrobras Am. Inc. , No. 20-0932, 650 S.W.3d 462, 471 (Tex. Apr. 29, 2022) (quoting Gates v. Asher , 154 Tex. 538, 280 S.W.2d 247, 249 (1955) ).
See Cardtronics , 438 S.W.3d at 782 ; Rowan Cos., Inc. v. Wilmington Tr. Co. , 305 S.W.3d 698, 708 (Tex. App.—Houston [14th Dist.] 2009, pet. granted, judgm't vacated w.r.m.).
Mindful that the last-antecedent canon "is neither controlling nor inflexible," we conclude "whether required hereby" modifies "all insurance carried" and not "Worker's Compensation and Employer[s]’ Liability." Appellants’ interpretation is reasonable; it is consistent with the exception to the last-antecedent rule this court has acknowledged; it is consistent with the traditional uses of commas, which is to create separation; it is consistent with the nature of nonrestrictive phrases as merely descriptive or additive; and Kinder Morgan's contrary interpretation ironically renders the modifying phrase itself superfluous.
City of Corsicana , 216 S.W.2d at 176.
See Dist. 6, United Mine Workers of Am. v. U.S. Dep't of Interior , 562 F.2d 1260, 1264-65 (D.C. Cir. 1977) (finding last-antecedent rule inapplicable when the qualifying phrase could modify either the preceding short clause or the preceding main clause).
8100 N. Freeway , 329 S.W.3d at 862.
See LeClercq at 91. Thus, commas separating the nonrestrictive phrase preceding the modifying phrase signal the reader to cut the modifier from the immediately preceding antecedent. See id.
Our conclusion is not unlike that reached by the court in Apex Systems, LLC v. Beacon Hill Staffing Group, LLC , C.A. No. 3:2CV1165, 2021 WL 5760854, at *10 (E.D. Va. Dec. 3, 2021) (mem. op.), where that court examined the proper antecedent of a modifying phrase that followed a nonrestrictive phrase set off by commas. See id. ("[A] fifty (50)-mile radius around any Apex office, including Employee's home office (if applicable), in which the Employee regularly worked ... during the twenty-four (24) months immediately preceding the cessation of his employment."). The court held that "in which the employee regularly worked" modified the noun "home office" in the main clause and not the noun in the preceding nonrestrictive clause. Id.
d. Because appellants’ interpretation of "all insurance carried" is the only reasonable one, the summary judgment is error.
We must evaluate a writing's reasonableness and ambiguity while ever-cognizant of legal interpretive principles. In construing the additional insured provisions, we give effect only to reasonable interpretations of the Contract's terms, which we consider as a whole. As explained, appellants’ interpretation comports with pertinent contract construction principles, gives effect to all contract terms, and renders none meaningless. Our conclusion also aligns with the main purpose underlying Kinder Morgan's promise to secure additional insured coverage—to obtain coverage for Total and its employees during the course of Kinder Morgan's contractual performance.
See URI , 543 S.W.3d at 763-64.
Deepwater Horizon , 470 S.W.3d at 466.
See Piranha Partners v. Neuhoff , 596 S.W.3d 740, 743 (Tex. 2020) (citing URI , 543 S.W.3d at 763 ).
See J.M. Davidson , 128 S.W.3d at 229.
See Deepwater Horizon , 470 S.W.3d at 466 ; Aubris Res. LP v. St. Paul Fire & Marine Ins. Co. , 566 F.3d 483, 490 (5th Cir. 2009).
Were we to interpret the additional insured provisions as Kinder Morgan suggests, we would have to impermissibly imply terms the parties did not include and leave some terms ineffectual. Kinder Morgan's (and the trial court's) contextual reading of "all insurance carried" is reasonable only if "whether required hereby" modifies "Worker's Compensation and Employer’[s] Liability" and not "all insurance carried." That reading is not supportable. Thus, appellants’ interpretation of the additional insured provisions is the only reasonable one.
Kinder Morgan warns that absurd consequences follow from appellants’ construction. It posits, if "all insurance carried" by Kinder Morgan means all insurance, then Kinder Morgan would be required to make Total and its employees additional insureds on every Kinder Morgan policy in the world, including policies having no relationship to the work it was performing for Total under the Contract. To be sure, Article 9's second sentence does not say "all insurance carried relating to the work performed hereunder " or similar words. But Kinder Morgan's feared consequence does not reasonably follow from appellants’ interpretation. Requiring Kinder Morgan to add Total as an additional insured to all of its insurance policies having nothing to do with Kinder Morgan's work under the Contract is plainly not the parties’ intent, regardless of which party's interpretation of "all insurance carried" is correct. The Contract as a whole applies to the "Work," meaning "the obligations, duties and responsibilities necessary for the successful performance of coke cutting and crane operation services by [Kinder Morgan] under this Contract, as described more fully in Articles 3 and 4." No party has suggested that any obligations in the Contract are intended to extend beyond the "Work" Kinder Morgan contracted to perform, and appellants have never contended that Kinder Morgan had a duty to add Total as an additional insured to all of its policies in the world. Article 9 reinforces the parties’ understanding in this regard, as it specifically references the "Work" and ties the insurance requirements to performance of the "Work." We construe contracts in accordance with the activity at issue and avoid unreasonable constructions. We will not read additional insured obligations in such a way as to render them inconsistent with the manifest purpose of such provisions, which is to "provide supplemental protection when the additional insured may be sued for conduct within the contractor's scope of risk. "
See Frost Nat'l Bank , 165 S.W.3d at 312 ; Lane v. Travelers Indem. Co. , 391 S.W.2d 399, 402 (Tex. 1965) (determining it would be unreasonable to conclude parties to insurance contract intended its provisions to lead to absurd results).
See Deepwater Horizon , 470 S.W.3d at 466 (emphasis added).
Therefore, after examining the text in light of pertinent contract interpretation principles, we conclude that Kinder Morgan's obligations to ensure that Total and its employees were added to policies as additional insureds applies to the policies Kinder Morgan was required to obtain under Section 1.1 and to any other policies it chose to obtain that are applicable to the work. Thus, Kinder Morgan was obligated to ensure that Total and its employees were additional insureds under the Lloyd's Policy, and the trial court's contrary ruling in Kinder Morgan's favor on this issue is improper.
The same conclusion was reached in the only other case we have located considering a similar issue. See Ins. Co. of Pa. v. APAC-Se., Inc. , 297 Ga.App. 553, 677 S.E.2d 734, 738-39 (2009).
2. Kinder Morgan breached Section 1.3(c) of the Contract because the Lloyd's Policy restricts additional insured coverage to Kinder Morgan's indemnity duty.
Having concluded that Kinder Morgan was required to make Total and its employees additional insureds on the Lloyd's Policy, we proceed to consider appellants’ argument in their second issue that Kinder Morgan breached that obligation.
Appellants contend that Kinder Morgan failed to comply because it limited the scope of additional insured coverage to the indemnity duty under the Contract, thereby depriving Total and its employees of the "full benefits" of additional insured coverage. Specifically, the challenged language in the Lloyd's Policy is the last clause of the "additional insured" definition, which limits coverage "only to the extent required by any indemnity given by the NAMED INSURED under said CONTRACT to the ADDITIONAL INSURED."
According to appellants, this limitation is not permitted by the Contract. Appellants observe that the additional insured provisions and the indemnity provisions are not coextensive; that additional insured coverage is supposed to extend to "all occurrences," as Section 1.3(c) states; and that the term "additional insured," being undefined in the Contract, is "unqualified." Citing Getty , Evanston , ExxonMobil , and Aubris , appellants contend those cases have construed similar language to extend coverage broadly for the additional insured's own negligence. For these reasons, appellants say, the Contract required Kinder Morgan to ensure that the Lloyd's Policy afforded coverage to Total and its employees that was "coextensive" with the coverage afforded to Kinder Morgan.
Evanston Ins. Co. v. ATOFINA Petrochems., Inc. , 256 S.W.3d 660 (Tex. 2008).
ExxonMobil Corp. v. Elec. Reliability Servs., Inc. , 868 F.3d 408 (5th Cir. 2017).
For its part, Kinder Morgan contends that, assuming Total's interpretation of the Contract's additional insured duties is correct, Kinder Morgan did not breach the Contract at all because Total qualifies as an additional insured in some instances—just not this one—and that it breached no contractual provision by limiting the scope of Total's additional insured coverage to the Contract's indemnity duty. As Kinder Morgan defines the essential question, it is: if one party agrees to make another an "additional insured" on its policy, does that obligate the promisor to provide the additional insured with the same scope of coverage as the named insured? Kinder Morgan reminds us that the Contract expresses no prohibition against a more limited scope of additional insured coverage, and courts are not to imply such limitations when the parties have not agreed to them. We are not to fill in those gaps. According to Kinder Morgan, it was free to agree to any additional insured terms Lloyd's also found acceptable so long as Total qualified as an additional insured in at least some respect.
See Tenneco , 925 S.W.2d at 646 (courts will not imply contractual restraints for which the parties have not bargained).
See Phillips Petroleum Co. v. St. Paul Fire & Marine Ins. Co. , 113 S.W.3d 37, 43-44 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (when contract did not specify the specific type of CGL coverage required, court could not fill the gap).
The parties agree that Total qualifies as an additional insured at least when Kinder Morgan owes indemnity. The dispute is over whether the Contract requires more. The trial court did not reach the issue. To the extent the parties preserved their arguments in the trial court and briefed them in our court, we consider the question. If one side is entitled to summary judgment, then we are obliged to render the judgment the trial court should have rendered.
a. Total
The Contract says that Kinder Morgan's policies "shall be endorsed to make TOTAL ... additional insureds ..." (Article 9) and that Total "shall be named as additional insureds" (Section 1.3). The Contract does not define the term "additional insured." Nor does it contain any language limiting or refining the meaning of that term, such as text identifying a specific definition or endorsement that a policy must incorporate. We agree with appellants that the Contract here, like in ExxonMobil , does not indicate that the parties intended the scope of the indemnity provision to govern the scope of the additional insured obligations. But that does not resolve the issue.
Agreements of this sort frequently include limiting or defining language. For examples, see Deepwater Horizon , 470 S.W.3d at 456-57 ; Evanston , 256 S.W.3d at 664-65 ; Coastal Transp. Co. v. Crown Cent. Petroleum Corp. , 20 S.W.3d 119, 129 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (additional insured language was specific and required full defense and protection); Pasadena Refining Sys., Inc. v. McCraven , Nos. 14-10-00837-CV, 14-10-00860-CV, 2012 WL 1693697, at *14 (Tex. App.—Houston [14th Dist.] May 15, 2012, pet. dism'd) (mem. op.). Cf. Am. Equip. Co. v. Turner Bros. Crane & Rigging, LLC , C.A. No. 4:13-CV-2011, 2014 WL 3543720, at *2 (S.D. Tex. July 14, 2014) (op. and order) (promisor was required to make other party additional insured using a particular form named in the contract).
See ExxonMobil , 868 F.3d at 417.
Although no provisions purport to limit the additional insured duty's scope, one provision speaks to its required reach: the additional insured coverage must extend to "all occurrences." Section 1.3(c)—appearing under the subheading, "ADDITIONAL INSUREDS"—states, "[i]t is agreed that all policies and coverages required by the Contract shall extend to all occurrences that occurred from the time of commencement of Work until completion of Work ...." (Emphasis added). Coverages "required by the Contract" include the minimum required coverages described in Section 1.1 and, as we held above, additional insured coverage under voluntarily obtained policies such as the Lloyd's Policy. The Lloyd's Policy's additional insured definition does not provide additional insured coverage to all occurrences, but only to occurrences for which Kinder Morgan owes indemnity under the Contract. Therefore, the challenged restriction in the Lloyd's Policy's additional insured definition breaches Kinder Morgan's promise in Section 1.3(c) of the Contract to "extend" additional insured coverages to "all occurrences." We therefore agree that appellants have conclusively shown a breach in that respect.
It is unnecessary on this record to determine whether limiting the Lloyd's Policy's additional insured coverage to Kinder Morgan's indemnity duty breaches the Contract in a broader sense. In particular, we need not decide the general meaning of "additional insured" under this Contract, including whether this particular language obligates the promisor, Kinder Morgan, to provide the additional insured, Total, with the same scope of coverage as Kinder Morgan enjoys. Presuming without deciding that Kinder Morgan's additional insured obligations are as broad as appellants say they are, and that Total was entitled to a scope of coverage commensurate with Kinder Morgan's, the Lloyd's Policy in fact places Total (and its employees) on equal footing with Kinder Morgan—but for the challenged clause. The coverage grant in the insuring agreement provides for coverage to the "Insured" under specified circumstances, and "Insured" means either the "Named Insured" or an "Additional Insured." Generally, anyone qualifying as an additional insured is entitled to the same scope of coverage as the named insured.
This is not true as to the amount of additional insured coverage. We discuss this issue infra in connection with damages.
b. Total's employees
We next consider whether appellants conclusively established a breach as to Total's employees. The record establishes that Kinder Morgan also breached that duty as a matter of law. The Lloyd's Policy provides no additional insured coverage whatsoever to Total's employees. This is undisputed. Under the policy's additional insured definition, no person can qualify as an additional insured unless Kinder Morgan owes indemnity to that person under Article 8 of the Contract. Total's employees are not entitled to be indemnified by Kinder Morgan because the "indemnitees" defined in Article 8 do not include Total employees. Kinder Morgan has not argued otherwise. Thus, Total's employees would never qualify as additional insureds under the Lloyd's Policy.
For these reasons, we hold that the first three elements of appellants’ contract claim based on Kinder Morgan's failure to include Total and its employees as additional insureds on the Lloyd's Policy are established conclusively on this record to the extent we have described. The trial court erred in denying summary judgment in this regard. We sustain appellants’ first issue. C. Whether appellants proved that Kinder Morgan breached the Contract by failing to provide thirty days’ notice of a material change in insurance
In their third issue, appellants argue that they conclusively established that Kinder Morgan breached the Contract's requirement to provide Total thirty days’ written notice of a material modification to its insurance policies.
The Contract contains two provisions addressing the thirty-day written notice requirement. The third sentence of Article 9 states:
Prior to commencing the Work, [Kinder Morgan] shall supply to TOTAL insurance certificates evidencing that the minimum insurance is in full force and effect and that thirty (30) days written notice shall be given to TOTAL prior to any cancellation or material modification of any policies . (Emphasis added)
The second provision is in Section 1.2 of Exhibit X:
1.2 CERTIFICATES. Prior to commencing Work, [Kinder Morgan] shall furnish Certificates of Insurance to TOTAL PETROCHEMICALS USA, INC. evidencing the insurance required herein. Each certificate shall provide that thirty (30) days prior written notice shall be given TOTAL PETROCHEMICALS USA, INC. in the event of cancellation or material change of insurance coverages or endorsements required hereunder . (Emphasis added)
Appellants moved for partial summary judgment on this claim as to all required elements except damages. According to appellants, they did not receive notice of two material insurance modifications. First, the definition of who qualifies as an "additional insured" changed materially when Kinder Morgan dropped CGL coverage and acquired the Lloyd's Policy. Second, Chubb argued that Kinder Morgan's change from a CGL policy to an excess policy with an SIR in itself constituted a material modification.
In its summary judgment response, Kinder Morgan addressed only the second alleged breach. It argued that it provided notice of its change from a CGL policy to an excess policy with an SIR, attaching copies of two insurance certificates in support. One certificate is dated April 28, 2014, and the other is dated July 21, 2015. The Counts accident occurred in September 2015. Total does not dispute receiving either certificate.
On appeal, appellants contend the trial court erred in denying their summary judgment motions on this breach theory.
1. Kinder Morgan failed to notify Total of the change in "additional insured" status.
The first alleged material modification is the definitional change in who qualifies as an "additional insured" from the CGL policy to the Lloyd's Policy. Although Kinder Morgan did not address this argument in its response, appellants as movants still must demonstrate that they conclusively proved a breach.
See Provident Life , 128 S.W.3d at 215-16.
According to Kinder Morgan's most recent CGL policy in effect before Counts's accident, an "additional insured" was defined to include:
Any person or organization, other than the Named Insured, to such extent and for such limits of liability (subject always to the terms and Limits of Insurance of this Policy) as the Named Insured has agreed in writing prior to an "occurrence" to provide insurance for such person or organization....
We agree that, if required by written contract, any person, firm or organization is included as an additional insured but only in respect of liability arising out of operations (including "your work" and "your product" and included in the "products-completed operations hazard") performed by the named insured and only to the extent required under said written contract.
Earlier CGL policies obtained by TGS consistently defined "additional insured" as:
[Total and its partners, partnerships, joint ventures, joint venture partners, parents, subsidiaries, and affiliated companies and their respective employees, officers, directors and agents], but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by:
1) [The named insured's] acts or omissions; or
2) The acts or omissions of those acting on [the named insured's] behalf; In the performance of your ongoing operations for the additional insured(s)....
The Lloyd's Policy took effect on August 1, 2015. In that policy, as discussed above, the scope of persons and organizations who could qualify as "additional insureds" narrowed to only those whom Kinder Morgan was required to indemnify under the Contract.
The Contract requires Kinder Morgan to give Total thirty days’ prior written notice of any "material modification" or "material change" to any of the required insurance policies or endorsements. The parties do not dispute this requirement's meaning on appeal. The Contract does not define these terms, so we apply their ordinary meanings. "Modification" means "a change to something; an alteration or amendment." "Material" generally means "having importance or great consequence" or "of such a nature that knowledge of the item would affect a person's decision-making; significant; essential."
"Modification," Black's Law Dictionary (11th ed. 2019).
See "Material," Merriam-Webster, https://www.merriam-webster.com/dictionary/ material; "Material," Black's Law Dictionary (11th ed. 2019).
Based on the plain language of the above additional insured definitions, we conclude the substantive differences between them are material. For instance, under the Lloyd's Policy, Total's employees would not qualify as additional insureds under any circumstances; whereas, they are included within the scope of the earlier CGL policy's additional insured definition. Additionally, unlike the Lloyd's Policy, the definition in the CGL policy is not tied to Kinder Morgan's indemnity duty. These are "significant" changes and of such a nature that Total's knowledge of the change would affect its decision-making. We have already held that Kinder Morgan breached the Contract by eliminating Total's employees from additional insured coverage altogether and by linking additional insured status to the indemnity duty.
We express no opinion whether Total would have been entitled to coverage under the most recent CGL policy had it, or a similar one, been in effect in 2015. We conclude merely that the change is a material one of which Kinder Morgan was required to give written notice.
Appellants therefore established conclusively that Kinder Morgan breached the Contract by failing to provide thirty days’ prior written notice that the Lloyd's Policy materially changed the definition of "additional insured" relative to the prior CGL policies. The burden shifted to Kinder Morgan to raise a genuine issue of material fact, but Kinder Morgan did not refute this argument in its response. Thus, the trial court erred in denying appellants’ motion for partial summary judgment on this ground.
On appeal, Kinder Morgan claims it complied with its duty to provide notice of these changes by delivering the insurance certificates. Even if Kinder Morgan had presented this argument in its summary judgment response, we would disagree. The key language in each certificate states:
The General Liability Policy is Self-Insured. APRIL 29, 2005. RE: KINDER MORGAN PETCOKE L.P. THE EXCESS LIABILITY POLICY INCLUDES A BLANKET AUTOMATIC ADDITIONAL INSURED ENDORSEMENT PROVISION THAT CONFERS ADDITIONAL INSURED STATUS TO THE CERTIFICATE HOLDER ONLY IF THERE IS A WRITTEN CONTRACT BETWEEN THE NAMED INSURED AND THE CERTIFICATE HOLDER THAT REQUIRES THE NAMED INSURED TO NAME THE CERTIFICATE HOLDER AS AN ADDITIONAL INSURED. IN THE ABSENCE OF SUCH A CONTRACTUAL OBLIGATION ON THE PART OF THE NAMED INSURED, THE CERTIFICATE HOLDER IS NOT AN ADDITIONAL INSURED UNDER THE POLICY. THE EXCESS LIABILITY POLICY CONTAIN[S] A SPECIAL ENDORSEMENT WITH "PRIMARY AND NONCONTRIBUTORY" WORDING.
The above language does not provide Total notice of the change in scope as to who qualifies as an additional insured under the Lloyd's Policy. We sustain appellants’ third issue in part.
2. Kinder Morgan raised a fact question on whether it notified Total of the change to an excess policy with an SIR.
The second alleged material modification is the change from CGL primary coverage to an excess policy with a $10 million SIR. Kinder Morgan responded to this ground in the trial court. Presuming without deciding that such a change is material, the language contained in the insurance certificates is sufficient to raise a fact question whether Kinder Morgan satisfied its duty to notify Total of the modification. Therefore, Kinder Morgan created a genuine issue of material fact and thus defeated appellants’ right to summary judgment on this issue, and the trial court did not err in denying appellants’ motion for partial summary judgment on this ground. We overrule appellants’ third issue to this extent.
Accordingly, we affirm in part and reverse in part the trial court's order denying appellants’ motion for partial summary judgment on their claim that Kinder Morgan breached the Contract by failing to provide thirty days’ prior written notice of material modifications to the required insurance policies. The matter of appellants’ damages, if any, resulting from this breach remains for determination on remand.
Kinder Morgan argues in its brief that any breach could not have caused damages. But that issue is not before us based on this record. The trial court denied appellants’ motion for partial summary judgment on this claim, which sought to establish all breach of contract elements except damages. Save for Kinder Morgan's arguments regarding consequential damages, discussed below, no party moved for summary judgment on damages as to this breach theory.
II. Damages
We next consider the parties’ arguments regarding damages. The trial court ruled that Kinder Morgan's breach in failing to carry the minimum required coverages caused Total damages, which are limited to the $6 million minimum limits required by the Contract. The judgment awards monetary recovery to appellants on this claim, subject to an offset.
A. Kinder Morgan's arguments
1. Appellants did not conclusively prove damages resulting from Kinder Morgan's breach concerning the minimum required coverages.
In part of its first cross-issue, Kinder Morgan argues that, assuming it breached the Contract by not maintaining the minimum required coverages, appellants did not conclusively prove damages and therefore they are not entitled to summary judgment on this claim.
To recover on summary judgment, appellants were required to establish conclusively the damages actually sustained as a result of the breach. Appellants’ damage theory rests on the expected benefits from the Contract had Kinder Morgan performed. Thus, appellants seek benefit-of-the-bargain damages, which is the typical measure for breach of contract claims. The purpose of the benefit-of-the-bargain measure is to "restore the injured party to the economic position it would have been in had the contract been fully performed." The proper measure of damages is the amount that would have been due under Contract-compliant CGL and excess insurance policies, had they been obtained. The duties to defend and indemnify under a CGL policy cannot be determined without reference to the policy's actual language. As summary judgment movants, appellants had to show conclusively the economic position they would have occupied had Kinder Morgan maintained the CGL and excess umbrella policies required by Section 1.1 at the time of Counts's accident, that is, the amount that would have been due under such policies. The only summary judgment motion filed by appellants regarding damages—the joint "motion for final summary judgment"—did not establish this element. Rather, the motion addressed only appellants’ arguments concerning why they were entitled to recover up to the limits of the Lloyd's Policy as damages for Kinder Morgan's failure to name Total and its employees as additional insureds on that policy. The trial court's corrected final summary judgment, however, necessarily presupposes that had Kinder Morgan maintained CGL and excess umbrella policies in compliance with Section 1.1, the carriers on those policies would have had a duty to pay appellants’ claimed damages at least up to $6 million. But appellants did not attempt to make that showing as part of their second summary judgment motion. As summary judgment movants on their breach of contract claim, they were required to establish all elements conclusively. Because the fourth breach of contract element is not established in the motions, we may not affirm the judgment awarding damages to appellants on the claim that Kinder Morgan breached Section 1.1 by failing to maintain CGL and excess umbrella coverage and by failing to make Total and its employees additional insureds on those coverages.
See Clear Lake City Water Auth. v. Friendswood Dev. Co. , 344 S.W.3d 514, 523 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) ; see also McKnight v. Hill & Hill Exterminators, Inc. , 689 S.W.2d 206, 209 (Tex. 1985) ; Stewart v. Basey , 150 Tex. 666, 245 S.W.2d 484, 486 (1952).
Bowen v. Robinson , 227 S.W.3d 86, 96 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). American law traditionally recognizes three types of recovery to compensate for a breach of contract: expectancy, reliance, and restitution damages. Atrium Med. Ctr., LP v. Houston Red C LLC , 595 S.W.3d 188, 193 (Tex. 2020). Expectancy damages award a contract plaintiff the benefit of its bargain; reliance damages compensate the plaintiff for out-of-pocket expenses; and restitution damages restore to the plaintiff a benefit that it had conferred on the defendant. Id.
Clear Lake City Water Auth. , 344 S.W.3d at 523 ; see also Bowen , 227 S.W.3d at 96.
See Smith-Reagan & Assocs., Inc. v. Fort Ringgold Ltd. , No. 04-13-00608-CV, 2015 WL 1120398, at *1 (Tex. App.—San Antonio Mar. 11, 2015, pet. denied) (mem. op.) (providing that "[t]he measure of the liability for [an agent's] failure to procure insurance is the amount that would have been due under the insurance policy [if] it had been obtained"); Temple EasTex, Inc. v. Old Orchard Creek Partners, Ltd. , 848 S.W.2d 724, 731 (Tex. App.—Dallas 1992, writ denied) ; see also Taylor v. Republic Grocery , 483 S.W.2d 293, 296 (Tex. App.—El Paso 1972, no writ) ; Voisin v. O.D.E.C.O. Drilling Co. , 744 F.2d 1174, 1179 (5th Cir. 1984) (holding that party who breaches promise to obtain insurance for other party is liable for breach of contract damages for the amount that would have been covered by the insurer had the insurance been obtained); Henley v. Love Ins. Grp., LLC , No. 3:15-CV-3078-L, 2017 WL 735485, at *5 (N.D. Tex. Feb. 24, 2017) (mem. op. and order); Douglas R. Richmond & Darren S. Black, Expanding Liability Coverage: Insured Contracts and Additional Insureds , 44 Drake L. Rev. 781, 785, 796 (1996) (when party promising to procure coverage fails to procure correct insurance, that party breaches the contract; breaching party is liable for resulting damages, including defense costs and losses that would have been covered had the promisor obtained the correct insurance); cf. Metro Allied Ins. Agency, Inc. v. Lin , 304 S.W.3d 830, 835-36 (Tex. 2009) (under negligence and DTPA claims for failing to procure insurance coverage, causation standard requires proof that CGL policy would have covered the alleged damages).
See In re Farmers Tex. Cnty. Mut. Ins. Co. , 621 S.W.3d 261, 270 (Tex. 2021) (orig. proceeding) (duty to indemnify); GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church , 197 S.W.3d 305, 308 (Tex. 2006) (duty to defend). Appellants attached copies of TGS's prior CGL policies to their summary judgment motion, but not for the purpose of arguing that, had the most recent policy been renewed, the Counts Lawsuit allegations would have triggered a defense duty as to Total and its employees.
Katy Venture, Ltd. , 469 S.W.3d at 163 ; Tex. R. Civ. P. 166a(a).
See Consumer Portfolio Servs., Inc. v. Obregon , No. 13-09-00548-CV, 2010 WL 4361765, at *7 (Tex. App.—Corpus Christi-Edinburgh Nov. 4, 2020, no pet.) (mem. op.) (holding trial court erred in granting traditional motion for summary judgment because movant did not conclusively prove an essential element of her claim).
Just as appellants did not conclusively prove damages, Kinder Morgan did not conclusively disprove them either. With the exception of its consequential damages argument, discussed below, Kinder Morgan did not attempt to establish as a matter of law that appellants’ defense and settlement costs would not have been owed and payable under Contract-compliant CGL and excess umbrella policies.
Accordingly, with respect to our holding that Kinder Morgan breached the Contract by failing to maintain the minimum required coverages, we further hold that appellants did not prove their right to summary judgment on that claim because they did not conclusively prove damages resulting from the breach. We sustain Kinder Morgan's first cross-issue to this extent. We affirm in part and reverse in part the judgment as to this breach by Kinder Morgan.
2. Any damages resulting from Kinder Morgan's breaches are not excluded by the Contract's consequential damages exclusion.
In its second cross-issue, Kinder Morgan contends that any damages are consequential and excluded by the Contract. The Contract provides that neither party shall be liable to the other for "special, indirect, or consequential damages resulting from or arising out of this contract."
"Consequential damages are those that result naturally, but not necessarily, from the defendant's breach, and are not the usual result of the wrong." "In contrast, direct damages are those that the breaching party is conclusively presumed to have foreseen as a result of its breach because they are the necessary and usual result of, and flow naturally and necessarily from, that wrongful act."
San Antonio River Auth. v. Austin Bridge & Rd., L.P. , 601 S.W.3d 616, 631 (Tex. 2020) (internal quotations omitted).
Id. (internal quotations omitted).
Kinder Morgan suggests that Total's damages are consequential because they "would not have resulted if Counts had not been killed while working at Total's facility." Kinder Morgan thus insists that Total's damages "result naturally, but not necessarily, from the defendant's wrongful act," which makes them consequential, rather than direct, damages. In response, appellants emphasize that the alleged damages in today's case—the settlement and defense costs it incurred that should have been covered by insurance—are more accurately characterized as directly linked to Kinder Morgan's failure to secure the requisite insurance coverages. We agree with appellants.
Appellants seek the full benefit of Total's bargain with Kinder Morgan embodied in the Contract. Direct damages often include restoration of the benefit of the claimant's bargain.
Signature Indus. Servs., LLC v. Int'l Paper Co. , 638 S.W.3d 179, 186 (Tex. 2022).
Courts have held that when a party fails to fulfill its contractual insurance obligations, it must itself provide the coverage that the contract required it to procure. Thus, for example, when a contract required a vessel owner to name a charterer an additional insured on its P & I insurance, but the owner failed to do so, the owner was liable for damages incurred by the charterer in settling an employee's personal injury claim, which the owner and charterer had stipulated were owed to the charterer. These types of damages are the necessary and usual result of, and flow naturally and necessarily from, the party's failure to provide the insurance coverage specified by the contract. Thus, in this specific context, these damages are the direct result of the wrong.
See Stockstill v. Petty Ray Geophysical , 888 F.2d 1493, 1496 (5th Cir. 1989) ; see also Ogea v. Loffland Bros. Co. , 622 F.2d 186, 189 (5th Cir. 1980) (explaining that drilling contract required Loffland to procure and maintain certain insurance policies and name Phillips a "co-insured" on these policies; if "Loffland breached the drilling contract, it is liable to Phillips for damages caused by its failure to satisfy its contractual obligations"); Stewart v. Cran-Vela Rental Co. , 510 F.2d 982 (5th Cir. 1975) (holding that Cran-Vela was liable to Shell for damages caused by its failure to satisfy contractual insurance provisions that would have held Shell harmless for injury to Steward); cf. Smith-Reagan , 2015 WL 1120398, at *1 (providing that, when an insurance agent fails to procure insurance, damages are measured by "the amount that would have been due under the insurance policy [if] it had been obtained").
San Antonio River Auth. , 601 S.W.3d at 631.
Kinder Morgan recognizes that "Texas courts have not definitively settled the question of whether the failure to procure an additional insured coverage results in direct or consequential damages, if any[,] when those damages arise from the injury of a third party." Kinder Morgan contends that Integ Corp. v. Hidalgo County Drainage District No. 1 is the "most analogous case" to today's case. There, after being sued by the District for a variety of tort and contract claims, Integ counterclaimed against the District for breach of contract for failing to procure general liability and errors and omissions insurance. As damages, Integ sought to recover its costs in defending against the District's lawsuit. The court held that the District's immunity from suit was not waived for Integ's counterclaim because the contract did not obligate the District to pay for Integ's defense and, thus, Integ's damages were "consequential." The court did not delve into the distinctions between direct and consequential damages, and the opinion provides little guidance to the situation we face in today's case.
No. 13-18-00123-CV, 2019 WL 6205474, at *1 (Tex. App.—Corpus Christi Nov. 21, 2019, no pet.) (mem. op.).
Id. at *3, *16.
Id.
See id. at *17 ("Because the contract does not obligate HCDD to pay for Integ/Garza's defense, the damages Integ/Garza have requested under this claim are consequential damages, and immunity is therefore not waived.").
Here, in contrast to the situation in Integ , appellants seek to recover money they contributed to settle a wrongful death lawsuit filed by the family of a Kinder Morgan employee. The Contract's insurance requirements were specifically designed to financially protect Total in the event of an incident such as the Counts tragedy. The required CGL and excess liability insurance were to provide coverage for, inter alia, death or personal injury; Kinder Morgan was to name Total as an additional insured on such coverage; and any coverage provided to Total as an additional insured was to be "primary insurance and shall not be considered contributory insurance." As the Supreme Court of Texas has recently observed, "the line between direct and consequential damages often is not a bright one." Appellants aptly note that insurance protects against contingencies, so the damages arising from the failure to procure required insurance coverage will never arise until that contingency occurs. Classifying such damages as consequential rather than direct ignores that, in such a situation, they are quintessentially the "usual result of the wrong."
James Constr. Grp. LLC v. Westlake Chem. Corp. , No. 20-0079, 650 S.W.3d 392, 417 (Tex. May 20, 2022).
San Antonio River Auth. , 601 S.W.3d at 631.
Accordingly, we hold that the damages, if any, resulting from Kinder Morgan's failures to comply with the Contract are direct damages and therefore are not prohibited by the Contract. We affirm the judgment in this respect. We overrule Kinder Morgan's second cross-issue.
B. Appellants’ arguments
1. The trial court did not err in ruling that appellants’ damages resulting from Kinder Morgan's failure to maintain the minimum required coverages are limited to $6 million.
The trial court ruled that appellants’ damages resulting from Kinder Morgan's failure to maintain the minimum required coverages were necessarily limited to the $6 million minimum amount required for those coverages. Appellants challenge this conclusion in their second issue.
The Contract required CGL coverage limits of not less than $1 million and excess coverage limits of not less than $5 million.
Before addressing appellants’ arguments, we consider more closely the basis for the trial court's judgment. The court granted the part of Kinder Morgan's summary judgment motion on damages in which it argued that any damages resulting from its failure to obtain the required insurance are limited to $6 million. Kinder Morgan presented two reasons why that was so. First, Kinder Morgan urged that it cannot be liable for failing to obtain more coverage for Total than the Contract required. Second, Kinder Morgan argued that it had no obligation to make Total and its employees additional insureds on the Lloyd's Policy because the Contract's additional insured obligations did not apply to that policy; thus, Total could not look to the Lloyd's Policy's higher limits.
The trial court adopted Kinder Morgan's second argument as the basis for its ruling that Total's damages were limited to $6 million. As we explained above, however, the Contract's additional insured provisions required Kinder Morgan to add Total as an additional insured to voluntarily procured insurance such as the Lloyd's Policy. Thus, the trial court erred in relying on this reasoning to support its ruling that appellants’ damages were so limited.
But if a summary judgment may be affirmed on an alternate ground preserved in the record, we must do so. Although we disagree with Kinder Morgan's second argument, we agree with its first. Section 1.3 makes clear that Total and its employees shall be named as additional insureds "to the extent required by the Contract." Thus, Kinder Morgan's additional insured duties extended only to what the Contract required. Insofar as the amount of minimum required coverages is concerned, the Contract required $6 million in coverage but no more.
Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d 623, 626 (Tex. 1996) ("We further conclude that the appellate court may consider other [summary judgment] grounds that the movant preserved for review and trial court did not rule on in the interest of judicial economy.").
We now turn to appellants’ arguments. They say the trial court erred in limiting their damages to $6 million. In the first part of their argument, appellants contend that Kinder Morgan must pay as damages the full $10 million of its SIR layer because the Contract requires Kinder Morgan's insurance to be primary and non-contributory. Appellants note that the Lloyd's Policy contains a "Primary Insurance Endorsement" providing that the policy "shall respond on a primary basis for liability arising from work performed pursuant to CONTRACT, if said CONTRACT requires that the insurance provided by this POLICY is to be primary." Additionally, the Contract requires Kinder Morgan to assume all deductibles. As appellants contend, "[h]ad Kinder Morgan not breached by limiting the scope of coverage to the scope of its indemnity, Kinder Morgan would have been obligated to pay its SIR as necessary to bring its insurance into play on a primary and noncontributory basis as the Crane Contract required."
In the second part of their argument, appellants contend that Kinder Morgan must pay damages up to the full limits of the Lloyd's Policy because the policy would have covered Total for the Counts Lawsuit had Kinder Morgan not breached the Contract by limiting additional insured coverage to the indemnity duty. They direct us to Forest Oil Corp. v. Strata Energy, Inc. , Lirette v. Union Texas Petroleum Corp. , Campbell v. Sonat Offshore Drilling Inc. , Evanston , and Maxus Exploration Co. v. Moran Brothers, Inc. Generally, appellants say these cases stand for the proposition that when a contract requires certain minimum insurance, the indemnitee or promisee is entitled to coverage up to the amount of insurance actually obtained when the indemnitor or promisor voluntarily bought more insurance than was required. Further, citing this court's decision in Coastal Transport Company , appellants say that "a failure to obtain additional insured coverage entitles the complaining party to recover its attorney's fees and expenses incurred in defending what would otherwise have been a covered claim."
929 F.2d 1039 (5th Cir. 1991).
467 So.2d 29 (La. Ct. App. 1985).
979 F.2d 1115 (5th Cir. 1992).
773 S.W.2d 358 (Tex. App.—Dallas 1989), aff'd on other grounds , 817 S.W.2d 50 (Tex. 1991).
Several considerations compel us to reject these arguments. First, Kinder Morgan's duty to pay any amount from its SIR layer applies only to covered claims, and the Counts Lawsuit is not covered. Total and its employees do not qualify as additional insureds under the Lloyd's Policy for the Counts Lawsuit. Appellants have not contended otherwise nor have they sued Lloyd's or argued that Kinder Morgan breached the Lloyd's Policy as it is written. Consequently, they simply are not entitled to any benefits under that policy. This fact alone distinguishes the present circumstances from those in appellants’ cases, where those courts merely enforced insurance policies in favor of insured parties. For example, in Forest Oil , Strata was an additional insured for the claim at issue under the primary insurance policy procured by Forest Oil, and, unlike here, no language in the policy limited additional insured coverage only to the extent Forest Oil was required to provide such insurance. If Total qualified as an additional insured under the Lloyd's Policy for the Counts Lawsuit, then it rightfully could claim the benefits owed to it in accordance with that policy's terms, as appellants’ authority illustrates. But those are not our facts. On the whole, the cases appellants cite involved a party's right to benefits from an insurance policy as an insured or covered party ; they did not involve or uphold an award of contract damages greater than the amount of coverage the underlying contract required when the party who promised to obtain the insurance failed to procure it.
See Forest Oil , 929 F.2d at 1045.
Id. at 1044. Forest Oil also obtained an excess policy, but Strata was not an insured under that policy and therefore was "not entitled to the benefits of that policy." Id. at 1045.
See, e.g., Evanston , 256 S.W.3d at 664, 670, 675 ; Forest Oil , 929 F.2d at 1044.
Similarly, we find Coastal Transport unsupportive of appellants’ position that its damages can exceed $6 million for Kinder Morgan's failure to maintain the minimum required coverages. In that case, a Coastal employee was injured and sued Crown, Coastal, and others. Crown settled with the plaintiffs. Crown sued Coastal's insurer, Transport Insurance Company, for failing to tender a defense against the claims, but the court determined that Crown was not an insured under the Transport policy, a ruling affirmed on appeal. Crown also sued Coastal for failing to indemnify it from the employee's claims and for failing to name it as an additional insured under the Transport policy. On these claims, the trial court granted summary judgment in Crown's favor, ruling that Coastal breached the agreement by failing to name Crown as an additional insured and rendering judgment for Crown. This court affirmed the judgment, holding that the indemnity provision in the agreement between Crown and Coastal was enforceable and that Coastal was obligated to make Crown an additional insured under the Transport policy. The damages resulting from that breach, however, were not in dispute on appeal, with the exception of one particular component. Coastal argued that the judgment in Crown's favor should not have included Crown's costs in defending the claims Coastal asserted against Crown for the loss of Coastal's property. We rejected that argument on the ground that, had Coastal added Crown to its insurance policy, Crown would have received a defense from Coastal's property loss claim. This holding is not on point here because there were no claims asserted by Kinder Morgan against Total that Total alleges should have been covered by the Lloyd's Policy. Moreover, Coastal Transport did not involve the question whether any such damages were or were not limited to the amount of coverage required under an agreement to procure insurance.
Coastal Transp. Co. , 20 S.W.3d at 122.
Id. at 122, 124-25.
Id. at 122.
Id.
Id. at 126-29. In a distinguishing feature from the matter at hand, the contract in Coastal Transport required Coastal to provide coverage for Crown that "shall include coverage for liability arising out of loading and unloading and shall fully extend to, defend and protect CROWN. " Id. at 129 (emphasis added).
Id. at 129.
Id. at 130.
We are unpersuaded by appellants’ arguments for other reasons as well. Their position is inconsistent with the traditional understanding of benefit-of-the-bargain damages. The benefit-of-the-bargain measure captures the plaintiff's expectancy interest, that is, the value expected had the contract been fully performed. To be sure, as we have held, Total reasonably could expect to be named an additional insured on "all insurance carried" by Kinder Morgan. But it could only expect a coverage amount of up to $6 million on the minimum required coverages because that amount is all the Contract requires. Appellants have not shown that Kinder Morgan's failure to maintain additional insured coverage entitles them to damages in an amount greater than the most Total could have expected under the Contract—$6 million.
Regarding Kinder Morgan's breach in limiting additional insured coverage under the Lloyd's Policy to the Contract's indemnity duty, appellants say damages are not limited to $6 million because the Lloyd's Policy would have covered all of appellants’ costs "but for the fact that Kinder Morgan improperly limited the scope of coverage." We conclude, however, that appellants have not made the conclusive showing necessary to obtain summary judgment on this argument. To begin with, appellants’ damages argument as to this breach theory is too conjectural at this stage. As they say, the appropriate remedy for Kinder Morgan's breach is for "Kinder Morgan to pay the costs of Total and Chubb as if Total had been properly covered by Kinder Morgan's policy." As we appreciate this theory, appellants propose that they recover damages equivalent to what they would have been entitled to receive under the Lloyd's Policy had the additional insured definition been written differently than it is. In other words, appellants appear to suggest that they were supposed to be in the same position as the claimants were in Forest Oil, Evanston, Lirette, Maxus , and Campbell —covered under an insurance policy that had greater limits than required. Like those claimants, appellants contend they too should have been in the position to potentially enjoy the benefit of insurance coverage that exceeded what they reasonably expected under the Contract. They say the only reason they were not in that position is because Kinder Morgan improperly linked the scope of additional insured coverage to the indemnity duty. Appellants appear to want damages for that breach to match the amount they say they could have claimed under the Lloyd's Policy had the additional insured definition been written in "compliance" with the Contract. This theory, however, is based on the language of a hypothetical policy to which Kinder Morgan and Lloyd's have not agreed. Based on the current record, we simply do not know what the Lloyd's Policy may have said if it were written in a way that complied with Kinder Morgan's contractual additional insured obligations. Breach of contract damages may not be based on conjecture.
See, e.g., EP Energy E & P Co., L.P. v. Cudd Pressure Control, Inc. , No. 14-13-00734-CV, 2014 WL 7345938, at *4 (Tex. App.—Houston [14th Dist.] Dec. 23, 2014, pet. denied) (mem. op.).
Even assuming that the additional insured definition in a hypothetical Lloyd's Policy was similar to the existing language but omitted the phrase limiting additional insured status only to Kinder Morgan's indemnity duty, appellants have not demonstrated that Total would have been entitled to more than $6 million under such a policy. This is because the definition states that "additional insureds" are those whom Kinder Morgan is "obliged by a written CONTRACT" to provide insurance. The Supreme Court of Texas, and federal courts applying Texas law, have construed identical language to limit the coverage provided by such a policy to the amount required by the underlying contract to procure insurance.
See Deepwater Horizon , 470 S.W.3d at 457 ; O'Brien’s Response Mgmt. , 24 F.4th at 431-32 ; Ironshore Specialty Ins. Co. v. Aspen Underwriting, Ltd. , 788 F.3d 456, 460-63 (5th Cir. 2015).
Much of appellants’ reply brief expands on their argument that the Contract required any insurance policy Kinder Morgan obtained voluntarily to afford equal amounts of coverage to both Kinder Morgan and any additional insureds. As we just noted, the Lloyd's Policy limits the dollar amount of additional insured benefits to the amount of coverage required by the underlying contract because it states that "additional insureds" are those whom Kinder Morgan is "obliged by a written CONTRACT" to provide insurance. Whether this particular limiting language breached the Contract and damaged Total because it restricts the amount of additional insured benefits available is not before us because that argument was not presented in the summary judgment motions. We therefore express no opinion whether the Contract requires voluntarily procured insurance to provide additional insured coverage in an amount equal to, or "coextensive" with, the policy limits applicable to Kinder Morgan.
We overrule appellant's second issue. The trial court did not err in ruling that appellants’ damages resulting from Kinder Morgan's failure to maintain the minimum required coverages are limited to $6 million, although we base our holding on different reasoning. Additionally, appellants’ have not shown conclusively that the damages resulting from Kinder Morgan's decision to limit additional insured coverage in the Lloyd's Policy exceed $6 million. The matter of appellants’ damages remains for resolution on remand.
2. We need not address appellants’ issue regarding the offset.
In the corrected final summary judgment, the trial court appears to have granted Kinder Morgan an offset from appellants’ $6 million recovery. Appellants challenge this ruling in their fourth issue. We have determined, however, that appellants did not conclusively establish damages as part of their summary judgment motions. Until appellants prove the existence and amount of their damages resulting from Kinder Morgan's breaches, it is unnecessary to address whether Kinder Morgan is entitled to an offset. We therefore do not reach appellants’ fourth issue.
Conclusion
We hold that appellants conclusively established Kinder Morgan breached the Contract in three respects: (1) by failing to maintain the minimum required coverages; (2) by failing to ensure that Total and its employees qualified as additional insureds on the Lloyd's Policy; and (3) by failing to provide written notice of the material change in additional insured status from the CGL policy to the Lloyd's Policy. Appellants, however, have not conclusively proven damages for any of these breaches. In their summary judgment motion on damages, appellants claimed that their damages were not limited to $6 million and that they were entitled to recover $9 million. They did not argue that they had conclusively proven damages to any lesser extent. Therefore, for the reasons explained, appellants’ damages, if any, resulting from all three breaches remain for resolution on remand, and we agree with appellants that any damages are not excluded by the Contract's consequential damages exclusion. We do not reach the parties’ arguments regarding Kinder Morgan's claim to an offset.
Accordingly, we affirm the judgment in part, reverse and render in part, and remand the cause for further proceedings consistent with this opinion.