Shipley Snell secures $70 million judgment on breach of indemnity action.
Shipley Snell has secured a judgment in excess of $70 million for its long-time client Marathon Petroleum following an eight day jury trial in Galveston County, Texas. Marathon Petroleum and its subsidiary Blanchard Refining brought suit for contractual indemnity against industrial contractor Industrial Specialists, Inc. for damages arising from a January 2016 fire during turnaround construction at Marathon Petroleum’s Galveston Bay Refinery in Texas City. After the fire, several ISI employees brought personal injury lawsuits in multi-district litigation against Marathon Petroleum and other non-ISI contractors on the jobsite. ISI, however, refused to indemnify Marathon Petroleum as required by contract for its employees’ injury claims.
ISI raised several legal challenges to the enforcement of its indemnity agreement with Marathon Petroleum, including taking a permissive interlocutory appeal that reached the Texas Supreme Court. See Indus. Specialists, LLC v. Blanchard Ref. Co. LLC, 652 S.W.3d 11 (Tex. 2022), reh'g denied (Sept. 30, 2022).
After extensive briefing by the parties, the Galveston County District Court resolved the contract interpretation issues regarding the indemnity agreement in favor of Marathon Petroleum and set the case for jury trial. The critical issue at trial was the extent of the parties’ responsibility for the injuries arising from the January 2016 fire. In May, after eight days of testimony and argument, the jury rendered a verdict apportioning liability amongst the parties involved in the construction turnaround, including ISI. On July 24, consistent with the jury’s findings, the District Court entered judgment for Marathon Petroleum for more than $70 million, which included prejudgment interest and attorney’s fees.
The Shipley Snell trial team was Joel Z. Montgomery, Alex Rodriguez, George T. Shipley, and Jonathan B. Smith. Shipley Snell attorney Amy D. Maddux provided appellate support.
Chambers USA 2023 Recognizes Shipley Snell Montgomery for Commercial Litigation
Shipley Snell Montgomery LLP is proud to be named among the top commercial litigation firms in Houston, Texas by Chambers USA. The firm is a “highly regarded litigation boutique” known for expert representation in a wide range of energy sector disputes. The firm can advise on many areas including commercial, environmental, and personal injury cases. The team is often sought out for its strengths in trials. As noted by clients, "Shipley Snell Montgomery has very talented lawyers from top to bottom. They're strategic thinkers who are excellent at assessing litigation risks and enabling businesspeople to reach reasoned judgments."
George Shipley, Amy Snell, and Joel Montgomery have been named top commercial litigation attorneys in Houston.
George Shipley represents a strong choice for clients in the oil and gas sector. "George is incredibly persuasive on his feet and has great insight into legal issues and problems, with extremely good judgment. He is the real deal.” “If you have a very serious case where the stakes of the company are on the line, he is one of the lawyers in Houston who would get that call.”
Amy Snell is a respected litigator who is praised for her trial skills. She is particularly noted for her representation of energy companies in commercial disputes. “Amy is someone the courts and defense groups look to for guidance. She is smart, well prepared and can make complex concepts very simple.” Joel Montgomery handles high-stakes litigation for energy companies and other corporate clients. "Joel is a phenomenal litigation attorney.” “He’s one of the most effective cross-examiners I have seen.”
George Shipley and Amy Snell are also ranked in Band 1 for Texas Litigation: Trial Lawyers.
To read the complete article, please click here.
Texas Supreme Court Provides Guidance on Non-Economic Damage Awards
In its most recent term, the Texas Supreme Court provided much-needed guidance on the legal parameters for non-economic damage awards in Texas. Shipley Snell attorney Jonathan Smith has prepared a helpful summary of critical aspects of the Gregory v. Chohan opinion below.
As always, feel free to reach out to any of our attorneys for further assistance or discussion.
-SSM LLP
In a June 16, 2023 plurality opinion issued in Gregory v. Chohan, ___ S.W.3d. ____, 2023 WL 4035886 (Tex. 2023) (attached), the Texas Supreme Court reversed and remanded a jury verdict in favor of wrongful death plaintiffs due, in part, to insufficient evidence in support of a $15 million award for non-economic damages. In doing so, the Court articulated a new legal standard for reviewing the legal sufficiency of the amount of non-economic damages. Although involving such damages in a wrongful death case, the Court’s reasoning appears to apply to any tort claims for mental anguish and other forms of non-economic damages. Specifically, the Court held that a plaintiff bears the burden of proving “a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded.” Although this standard lacks precision, the Court provided some helpful guidance on the types of evidence and argument that will not suffice to sustain large non-economic damage awards.
Facts of case and jury award:
In November 2013, an eighteen-wheeler driven by the individual defendant (Gregory) and owned by the corporate defendant (New Prime, Inc.) jackknifed across lanes of traffic on an icy, dark highway near Amarillo. This incident ultimately resulted in a deadly, multi-vehicle pile-up. One of the decedents, Bhupinder Deol, was a truck driver who had narrowly avoided colliding with the jackknifed truck. While attempting to assist other victims who had been involved in an initial collision, Mr. Deol was crushed by a passenger van that rolled onto him as a result of subsequent collisions. Mr. Deol was survived by both parents, his wife, and three children (the “Deol family”). Ultimately, the claims of the Deol family, along with the families of two other decedents, went to trial before a County Court at Law jury in Dallas County in November 2017.
The jury found that the defendants’ negligence had proximately caused the deaths, and the total jury award to all of the plaintiffs was $38.8 million. The Deol plaintiffs were awarded a total of $16.45 million, consisting of the following: (1) a total of $1.38 million for economic losses and for Deol’s conscious pain and suffering and (2) a total of $15.07 million for the Deol family’s mental anguish and loss of companionship. Thus, the non-economic damages of the Deol family accounted for almost 90% of their total damage award. (The breakdown by family member and category of non-economic damage is set forth in footnote 3 of the opinion). After trial, the families of the two other decedents settled, and only the Deol family claims proceeded through appeal. The primary issue on appeal was the size of the non-economic damages on the wrongful death claim and, in a 10-4 decision, the en banc Dallas Court of Appeals affirmed the award, concluding that it was not “flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience.”
Supreme Court’s opinion:
The Court first noted that it was not until the mid-1980s that Texas began departing from the established law that largely disregarded the mental anguish and suffering of wrongful death plaintiffs, and instead, typically confined the recovery of such plaintiffs to “pecuniary loss.” Noting that the Court first held in a 1986 decision that “family members could recover for both mental anguish and loss of companionship without a showing of physical manifestation,” the Court explained that it had not elaborated on the appellate standard of review for such an award since that decision. The Court further explained, however, that it has addressed the outer limits for mental anguish awards in defamation and non-death personal injury cases. Acknowledging that these limits have not been articulated with much precision, the Court reiterated that awards of mental anguish damages require evidence of the “nature, duration, and severity” of the harm and that “[t]here must be evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding.”
The Court then attempted to further clarify this evidentiary standard, doing so more by identifying the specific types of evidence that would not be legally sufficient to support the amount awarded. In particular, the Court specifically rejected the common strategy of plaintiffs to “anchor” an amount of non-economic damages to values associated with the defendant’s commercial operations or even generic high-dollar assets. The Court, for example, expressly disapproved of jury arguments by the plaintiff that alluded to the costs of a fighter jet and a famous painting, as well as an argument that the jury should give their ‘”two cents worth” to the New Prime defendant by awarding two cents for each of the three decedents multiplied by the 650 million miles annually driven by New Prime’s trucks. This “two cents” calculation yields the sum of $39 million, which amount the Court noted was almost identical to the total jury award of $38.8 million for all of the families. As explained by the Court, non-economic damages are not intended to punish or deter nor are they intended to generally place a monetary value on a human life; instead, they are intended to compensate and “[u]substantiated anchors like those employed here have nothing to do with the emotional injuries suffered by the plaintiff and cannot rationally connect the extent of the injuries to the amount awarded.”
However, with respect to the types of evidence that would suffice to establish a rational connection between the non-economic injuries and the amount awarded, the Court provided less guidance. The Court noted that a particular case may have direct evidence of an appropriate non-economic damage amount, such as “evidence of the likely financial consequences of severe emotional disruption in the plaintiff’s life” or “evidence that some amount of money would enable the plaintiff to better deal with grief or restore his emotional health.” In the absence of such evidence of a “quantifiable amount,” however, the Court simply stated that “parties and reviewing courts must explore whether there is any other rational explanation of how the evidence supports the [amount] finding.” Reviewing the evidence presented by the Deol family, the Court concluded that there was sufficient evidence of the “nature, duration, and severity” of the family’s mental anguish and loss of companionship. Nevertheless, without extensive analysis, the Court also concluded that there was no rational explanation in the record for why $15 million would provide reasonable and fair compensation for this harm. Although the Court’s finding of insufficient evidence to support the amount of the non-economic damage award typically would result in a remand to the court of appeals for remittitur consideration, the Court’s separate holding that the trial court also erred in striking a responsible third-party designation necessitated remand to the trial court for a new trial on both liability and damages.
Finally, it should be noted that the decision was rendered by only six justices, as Justice Lehrmann, Justice Huddle and Justice Young did not participate. Further, Justice Bland filed an opinion concurring only in part and two of the six justices concurred only in the judgment. In that concurring opinion written by Justice Devine and joined by Justice Boyd, the plurality opinion was criticized as adopting “a new evidentiary standard that is not only foreign to our jurisprudence but also incapable of being satisfied.” Noting the impossibility of objectively quantifying a plaintiff’s pain and mental anguish, Justice Devine advocated continued substantial deference to a jury’s attempts to fairly monetize such damages with the established, albeit subjective, judicial check on awards that “’shock[s] the conscience’” or “’clearly demonstrate[s] bias.’” Nevertheless, agreeing with the plurality that (i) the jury’s award here was improperly influenced by the plaintiffs’ improper “anchoring” arguments based on evidence wholly unrelated to the plaintiff’s actual harm and (ii) the defendants’ designation of a responsible third party was wrongfully struck, the concurring justices agreed with remand for a new trial.
Some key takeaways:
In a wrongful death case, as in other tort cases, a jury may not simply “pick a number” for non-economic damages and plaintiffs may not seek to “anchor” an amount of non-economic damages to evidence unrelated to the plaintiffs’ emotional injuries, such as evidence of a defendant’s sales or revenues, the market value or operational costs of its facilities, or its number of employees. The Court expressly confirmed that a trial court has a clear obligation to prevent such improper jury argument, which often impliedly seeks to punish or deter a defendant rather than to compensate the plaintiff.
What evidence will establish a sufficient “rational connection” between the plaintiff’s actual non-economic harm and the amount of damages awarded is an open question that will have to be developed by appellate courts over time. In this case, it was clear that the jury’s finding on the amount of non-economic damages was heavily influenced by the plaintiff’s improper “anchoring” arguments. It remains to be seen whether, in cases where the connection between the improper arguments and the damage award is not as apparent, appellate courts will be more lenient with respect to what evidence will suffice to establish the necessary “rational connection” between the plaintiff’s actual non-economic harm and the amount awarded.
The Court did suggest that there might be cases with direct evidence of a “quantifiable amount” to compensate a family member’s emotional or mental harm. Although the Court did not provide any examples, presumably such cases would include those involving evidence of the medical costs for treatment of a family member’s pain or mental anguish or evidence that such harm interferes with the family member’s ability to work. Also, while the Court expressly rejected any requirement that courts consider the ratio of non-economic damages to economic damages, the Court noted that such a correlation might be useful under the particular facts of a case, such as when a decedent who endures a long hospital stay prior to passing might cause the family members to “suffer more mental anguish due to the strain of dealing with medical bills and insurance hassles while coping with the death of a loved one.”
Chambers USA 2022 Names Shipley Snell Montgomery Among The Top Commercial Litigation Firms in Houston
Shipley Snell Montgomery LLP is proud to be named among the top commercial litigation firms in Houston, Texas by Chambers USA. The firm is a “highly regarded litigation boutique” known for expert representation in a wide range of energy sector disputes. The firm can advise on many areas including environmental, personal injury, and commercial cases. The team is often sought out for its strengths in trials. Client comments: "Shipley Snell has sharp and smart lawyers who do a good job." "The team does great work."
George Shipley, Amy Snell, and Joel Montgomery have been named top commercial litigation attorneys in Houston.
George Shipley represents a strong choice for clients in the oil and gas sector. "He is unassuming, brilliant, easy to work with, perceptive, thoughtful and incredibly effective at storytelling.” “He prepares, has complete mastery over the subject matter and presents his case in a detailed, matter-of-fact way.”
Amy Snell is a respected litigator, particularly noted for representation of energy companies in commercial disputes. “She’s very smart and easy to get along with. She has a lot of savvy to her without acting brash.” “She has an excellent mastery of the facts and a great rapport with juries.”
Joel Montgomery handles high-stakes litigation for energy companies and other corporate clients. "He is well organized, thoughtful and very efficient.” “He’s a friendly but deadly cross-examiner who has a complete grasp of the subject matter.”
To read the complete article, please click here.
Chambers USA 2021 Names Shipley Snell Montgomery Among The Top Commercial Litigation Firms in Houston, TX
Shipley Snell Montgomery LLP is proud to be named among the top commercial litigation firms in Houston, TX by Chambers USA. The team is known for representation in a wide range of energy sector disputes but can advise on many areas including environmental, personal injury and commercial cases. The team is often sought out for its strengths in trials. Client Comments: "They are well-prepared and extraordinarily good advocates. They present evidence in a likeable and effective way, and are very sensible in their approach and positions." "It is an outstanding boutique."
George Shipley and Joel Montgomery have been named top commercial litigation attorneys in Houston.
George Shipley represents a strong choice for clients in the oil and gas sector. "He's good at picking a choosing fights and focusing on the important issues." "He is very thoughtful, has nice manner and clients love him."
Joel Montgomery handles high-stakes litigation for energy companies and other corporate clients. "He has a good talent for making complicated issues easy to understand."
To read the complete article, please click here.
Shipley Snell Montgomery LLP Included as one of U.S. News and World Report’s Top Firms in Appellate Law
Shipley Snell Montgomery is pleased to be included as one of the U.S. News and World Report’s top firms in Appellate Law. All of SSM’s attorneys have experience in appellate law, and Amy Maddux’s practice is centered on appellate law. Some of the firm’s recent appellate wins include Union Carbide Corp. v. Torres, 2019 WL 6905229 (Tex. App.—Corpus Christi 2019, pet. filed) (reversing and rendering a jury verdict in an asbestos case on causation grounds), and Jordan v. CenterPoint Energy Houston Electric, LLC, 2019 WL 5565978 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (affirming summary judgment in an electric shock case). The firm’s appellate expertise also benefits clients by addressing legal issues at the trial level in anticipation of appellate review. Recently, such issues have included governmental immunity and constitutional construction, exclusive agency jurisdiction, and privilege issues. The firm has also been involved in amicus briefing on issues of particular importance to clients. Please use these links to view Shipley Snell Montgomery LLP's complete rankings, read the official press release, and learn more about "Best Law Firms."
Chambers USA 2019 Recognizes Shipley Snell Attorneys
Chambers USA: America’s Leading Lawyers for Business has ranked George Shipley and Joel Z. Montgomery among the leading litigation attorneys in Texas. Chambers publications are consistently considered the most respected and trusted of all the attorney rating entities, and they are consulted often by general counsel and others seeking to identify the best attorneys in any given region and practice area.
In the 2019 edition, George is ranked in Band 2 for energy and natural resources litigation in Texas. In client commentaries, George is noted for being “very strategic, very measured, and very, very practical.”
Ranked in Band 3 for energy and natural resources litigation in Texas, Joel’s clients reported to Chambers that Joel is “very experienced and savvy,” as well as “very good at getting disputes favorably resolved.”
As the Chambers results demonstrate, Shipley Snell is well-suited for handling the most challenging litigation and arbitration, with attorneys who honor the best traditions of legal excellence while providing clients with a fresh and tailored approach. You can read more about Chambers rankings here.
Shipley Snell Wins Jury Trial for Marathon Petroleum Company
In February 2016, Joel Montgomery and Laina Miller successfully represented Marathon Petroleum Company and one of its subsidiaries in a jury trial in Galveston County, Texas. Marathon and its subsidiary were sued by a contractor that was hired to dismantle and remove a unit from Marathon’s Galveston Bay Refinery. The contractor brought claims for breach of contract, tortious interference, and negligence in managing the progress of the project. After a week-long trial, the jury returned a take-nothing verdict, resulting in a total victory for Marathon and its subsidiary.
Shipley Snell on BTI’s 2016 “Client Service A-Team”
Shipley Snell Montgomery has been named to the 2016 BTI Consulting’s “Client Service A-Team,” based on BTI’s annual survey of corporate counsel regarding law firm client service performance.
To earn a spot on the BTI’s “Client Service A-Team,” a firm has to be singled out, by name, by legal decision makers. The “A-Team” only includes firms which clients describe as best across 17 activities proven to drive superior client service. This recognition further proves Shipley Snell’s dedication to honoring the best of legal traditions while providing clients with a fresh and tailored approach. Learn more about how Shipley Snell is making a difference for their clients.
Amy Snell Presents at 39th Annual Page Keeton Civil Litigation Conference
Amy Snell presented ““Safeguarding Information During Litigation: Protective Orders and Other Remedies” at the 39th Annual Page Keeton Civil Litigation Conference in Austin, Texas on October 30, 2015.
Amy’s presentation highlighted recent important Texas case decisions regarding enforcement of protective orders. Her presentation also covered the Texas Uniform Trade Secret Act, a recently enacted statute that codifies Texas’s Trade Secret law.
Chambers USA 2015 Recognizes Shipley Snell Attorneys
For the third year in a row, Chambers USA: America’s Leading Lawyers for Business ranked George Shipley as one of the leading litigation attorneys in the country. In the 2015 edition, George is called “a serious trial lawyer” who is “very well respected.” Additionally, Amy Snell is recognized as “Noted Practitioner” in Litigation: Commercial – Texas and Litigation: Energy& Natural Resources – Texas. This is Amy’s first year to be noted in Chambers.
As the Chambers results consistently show, Shipley Snell is big enough for the most challenging litigation and arbitration by honoring the best traditions of legal excellence while providing clients with a fresh and tailored approach. Learn more about how Shipley Snell Montgomery is making a difference for its clients.
Shipley Snell Attorneys Successfully Represent Texas Supreme Court Justice in Ballot Challenge
Shipley Snell Montgomery attorneys Amy Maddux and George Shipley successfully represented Texas Supreme Court Justice Jeff Brown in defeating an attempt by Brown’s challenger to remove Brown’s name from the March 4, 2014 Republican primary ballot.
After an evidentiary hearing on January 6, 2014 Travis County District Judge Amy Clark Meachum denied Justice Brown’s opponent’s application for temporary injunction.
Read more: Texas Lawyer
Chambers USA 2013 Recognizes George Shipley as a Leading Litigation Attorney
Chambers USA: America’s Leading Lawyers for Business has again ranked George Shipley as one of the leading litigation attorneys in the country. Chambers publications are consistently ranked as the most respected and trusted of all the attorney rating entities, and they are consulted often by general counsel and others seeking to identify the best attorneys in any given region and practice area.
In the 2013 edition, George is applauded for his supreme advocacy skills: “He is extremely calm under fire,” say sources, who add: “He’s steadfast and can think extremely well on his feet.”
As the Chambers researchers have confirmed, Shipley Snell clients never call us small. They prefer words like formidable and resourceful. And big enough for the most challenging litigation and arbitration. Learn more about how Shipley Snell Montgomery is making a difference for its clients.
Shipley Snell Offices Featured in CultureMap Magazine
When Shipley Snell moved into the historic 712 Main building in downtown Houston, the partners tapped Houston architects Mayfield and Ragni Studios to execute on the idea of reflecting at once both the firm’s dedication to the best traditions of legal excellence and its fresh approach to providing legal services — and architects Kelie Mayfield and Erick Ragni exceeded all expectations. Houston’s CultureMap Magazine recently featured Mayfield and Ragni, including a look at their work on the Shipley Snell offices. Mayfield and Ragni’s design successfully embraced Shipley Snell’s emphasis on ability, efficiency, and a true collaborative approach.
For more information about our friends at Mayfield and Ragni Studios, please visit www.marsculture.com.
Click here to learn more about how Shipley Snell is making a difference for its clients.
George Shipley Ranked in Chambers USA, America’s Leading Lawyers for Business
Before ranking any attorney or law firm, the researchers at Chambers & Partners review detailed and thorough materials submitted by each firm and then conduct extensive phone interviews with firm clients and others in a position to know the firm and its individual attorneys well. Chambers publications are consistently ranked as the most respected and trusted of all the attorney rating entities, and they are consulted often by general counsel and others seeking to identify the best attorneys in any given region and practice area.
According to Chambers USA, “George Shipley of Shipley Snell Montgomery has many years of experience in general commercial disputes and earns praise for his ability to ‘think critically and strategically in positioning a case to put us in the best light in front of a jury.’ He is also commended for his advocacy and his keen business sense. ‘He sees things which can get stuck in the weeds and avoids them; he’s very efficient and very adaptable.’”
Moving to 712 Main in Downtown Houston
On April 1, 2012, Shipley Snell moved its office to the 14th floor of the historic 712 Main Building, formerly called the J.P. Morgan Chase Bank Building, in downtown Houston.
The building has been described as “an explosion of art deco glory aimed skyward . . . half way between a wedding cake and a medieval castle.” Once the headquarters of Gulf Oil, it is one of the most important Art Deco skyscrapers in the southern United States. Commissioned by Jesse Holman Jones, one of Houston’s best known bankers, newspaper owners, and builders, and completed in 1929, it remained the tallest building in Houston until 1963, when the Exxon Building surpassed it.
Although located in a historic building, Shipley Snell’s office space is contemporary, reflecting at once both the firm’s dedication to the best traditions of legal excellence and its fresh approach to providing legal services. The firm embraced an open office concept, emphasizing collaboration and the value that each person at the firm brings.
On the practical side, the new office is located in a more central part of downtown, with easy access to rail lines and within walking distance to courthouses. And it allows the firm to service clients better, with additional (and expandable) conference rooms, as well as space for clients to work away from their offices. The new space also provides room for growth.
About the move, firm co-founder George Shipley said, “We are excited to work in a very modern office that happens to be located in one of Houston’s most historic buildings. The office space reflects the firm’s personality and creative thinking, while holding true to our core values such as client loyalty.”