VERIFIED PETITION FOR WRIT OF MANDAMUS AND MOTION FOR

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VERIFIED PETITION FOR WRIT OF MANDAMUS AND MOTION FOR Powered By Docstoc
					                         NO. 04-0245

             IN THE SUPREME COURT OF TEXAS
                 __________________________

      IN RE LUMBERMENS MUTUAL CASUALTY COMPANY,

                           Relator,

                              V.

COURT OF APPEALS FOR THE SIXTH JUDICIAL DISTRICT OF TEXAS,

                         Respondent,

              SONAT EXPLORATION COMPANY,

                     Real-Party-In-Interest

                 __________________________

      VERIFIED PETITION FOR WRIT OF MANDAMUS
 AND MOTION FOR TEMPORARY INJUNCTION PENDENTE LITE
                     WITH BRIEF

                 __________________________

          ORAL ARGUMENT REQUESTED PURSUANT TO
RULE 52.8(b)(4) OF THE TEXAS RULES OF APPELLATE PROCEDURE
                               IDENTITIES OF PARTIES AND COUNSEL

                      Attorneys for Relator Lumbermens Mutual Casualty Company

                                           TRAMONTE & ASSOCIATES
                                            Mr. Christopher Tramonte
                                          Texas State Bar No. 20184500
                                                Wortham Tower
                                         2727 Allen Parkway, Suite 1815
                                             Houston, Texas 77019
                                           Telephone: (713) 529-0600
                                           Facsimile: (713) 529-0614

                           PLAUCHÉ, MASELLI, LANDRY & PARKERSON , L.L.P.
                                         Mr. Arthur M. Landry
                                     Louisiana State Bar No. 7969
                                  201 St. Charles Avenue, Suite 4240
                                 New Orleans, Louisiana 70170-4240
                                      Telephone: (504) 582-1142
                                      Facsimile: (504) 582-1172

 Attorneys for Relator the Court of Appeals for the Sixth Judicial District of Texas and for Real-
                          Party-In-Interest Sonat Exploration Company

                                              LISKOW & LEWIS
                                             Mr. R. Keith Jarrett
                                        Louisiana State Bar No. 16984
                                             Mr. Thomas P. Diaz
                                        Louisiana State Bar No. 18863
                                         One Shell Square, 50th Floor
                                      New Orleans, Louisiana 10739-5099
                                         Telephone: (504) 581-7979
                                          Facsimile: (504) 556-4108




P ETITION FOR W RIT O F M AN D AM U S AN D
M OTION FOR T EM PO RARY I N JU N CTIO N P END ENTE L ITE W ITH B RIEF                      P AGE II
                                                MC KOOL SMITH
                                               Mr. Sam F. Baxter
                                          Texas State Bar No. 01938000
                                            Ms. Rosemary T. Snider
                                          Texas State Bar No. 18796500
                                                   P.O. Box O
                                             Marshall, Texas 75671
                                           Telephone: (903) 972-2111
                                           Facsimile: (903) 972-2622

                                INTERESTED ENTITIES AND COUNSEL

In addition to the above-identified Parties and Counsel to this Petition for Writ of Mandamus, there
is another party who is interested in the outcome of this petition and who will be affected by the
Temporary Injunction Pendente Lite should the Supreme Court of Texas grant that motion. Out of
an abundance of caution, Lumbermens identifies that party and its counsel of record here.

                            Counsel for Interested Entity Cudd Pressure Control

                                             WAGNER & BAGOT
                                            Mr. Michael H. Bagot
                                        Texas State Bar No. 7572520
                                          Mr. Thomas A. Rayer, Jr.
                                        Louisiana State Bar No. 20581
                                         Poydras Center, Suite 2660
                                      New Orleans, Louisiana 70130-6105
                                         Telephone: (504) 525-2141
                                          Facsimile: (504) 523-1587

                               NELSON , MC CORMICK , HANCOCK & NEWTON
                                          Mr. H. Dwayne Newton
                                       Texas State Bar No. 14977200
                                    1900 West Loop South, Suite 8700
                                        Houston, Texas 77027-3206
                                        Telephone: (713) 297-0700
                                         Facsimile: (713) 297-0701




P ETITION FOR W RIT O F M AN D AM U S AN D
M OTION FOR T EM PO RARY I N JU N CTIO N P END ENTE L ITE W ITH B RIEF                       P AGE III
                                                        Table of Contents

IDENTITIES OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II

IDENTITIES OF INTERESTED ENTITIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.        PRELIMINARY STATEMENT OF THE CASE
          AND THE NECESSITY FOR EXTRAORDINARY RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1


II.       JURISDICTION OF THE SUPREME COURT OF TEXAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III.      THE RECORD BEFORE THE SUPREME COURT OF TEXAS . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV.       ISSUES PRESENTED

          The Court of Appeals abused its discretion when it overruled Lumbermens Mutual
          Casualty Company’s Motion to Intervene into the underlying appeal . . . . . . . . . . . . . . . . 5

          The dispositive Choice of Law Issue that permeates this case should be addressed
          here and now . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

V.        STATEMENT OF PERTINENT FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

VI.       ARGUMENT AND REQUEST FOR MANDAMUS RELIEF

          The Doctrine of Virtual Representation entitles Lumbermens to assert its rights in the
          proceeding below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

          The Supreme Court of Texas needs to clearly delineate the procedure for coming into
          an appeal to assert legal rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

          In general, the right to intervene should be freely granted subject to being stricken . . . . 12

          Cudd timely preserved the Choice-of-Law issue in its Notice of Appeal. It only
          abandoned that issue under pressure from Sonat, and as part of a settlement
          agreement to which Lumbermens was not a party and which is contrary to
          Lumbermens’ interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

P ETITION FOR W RIT O F M AN D AM U S AN D
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         The Court of Appeals should acknowledge the Louisiana Court of Appeals’ opinion
         regarding the choice-of-law issue as a matter of Judicial Comity . . . . . . . . . . . . . . . . . . 14

VII.     PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XVI

VIII. MOTION FOR TEMPORARY INJUNCTION PENDENTE LITE
      AND CERTIFICATE OF COMPLIANCE WITH RULE 52.10(a)
      of the TEXAS RULES OF APPELLATE PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . XVI

IX.      CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XVIII

X.       VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XIX




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                                                    Index of Authorities

CASE LAW :

Barkan v. Massachusetts Insurance Insolvency Fund,
739 N.E.2d 1139 (Mass. App. Ct. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Brooks Well Servicing ,Inc., et al. v. Cudd Pressure Control, Inc., et al.,
850 So.2d 1027 (La. App. 2nd Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750 (Tex. 2003) . . . . . . . . . . . . . 9

Continental Casualty Co. v. Huizar, 740 S.W.2d 429 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . . 9

Cook v. Sullivan, 829 A.2d 1059 (N.H. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Guaranty Federal Savings Bank v. Horseshoe Operating Co.,
793 S.W.2d 652 (Tex. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hawsey v. Louisiana Department of Social Services, 943 S.W.2d 723
(Tex. App. – Houston [1st Dist.] 1996, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

In re Estate of Dickey, 761 N.Y.S. 473 (N.Y. Sur. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Lin-Well Development Corp. v. Preston & Farley, Inc.,
710 So.2d 578 (Fla. App. [2nd Dist.] 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Massey v. David, 831 So.2d 226 (Fl. App. [1st Dist.] 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Maxus Exploration Company v. Moran Bros., Inc. 817 S.W.2d 50 (Tex. 1991) . . . . . . . . . . . . . 6

Morris v. Cornerstone Propane Partners, L.P., ___ So.2d ___,
2003 WL 22320952 (Ala. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Morrow v. Vineville United Methodist Church, 489 S.E.2d 310 (Ga. App. 1997) . . . . . . . . . . . . 9

Motor Vehicle Board v. El Paso Independent Automobile Dealers Association, Inc.,
1 S.W.3d 108 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rowe v. Grapevine Corp., 527 S.E.2d 814 (W.Va. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




P ETITION FOR W RIT O F M AN D AM U S AN D
M OTION FOR T EM PO RARY I N JU N CTIO N P END ENTE L ITE W ITH B RIEF                                                        P AGE VI
CONSTITUTION , STATUTES AND RULES:

CONSTITUTION OF THE STATE OF TEXAS Art. 1, §13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

TEXAS GOVERNMENT CODE §22.002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rule 52(8)(b)(4) of the TEXAS RULES OF APPELLATE PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . 1

Rule 52.10(a) of the TEXAS RULES OF APPELLATE PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . XVI

Rule 60 of the TEXAS RULES OF CIVIL PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


OTHER AUTHORITY :

BLACK’S LAW DICTIONARY 826 (7th Edition 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




P ETITION FOR W RIT O F M AN D AM U S AN D
M OTION FOR T EM PO RARY I N JU N CTIO N P END ENTE L ITE W ITH B RIEF                                             P AGE VII
Request for Oral Argument.

         Pursuant to Rule 52(8)(b)(4) of the TEXAS RULES OF APPELLATE PROCEDURE , the Supreme

Court of Texas may set this matter for oral argument. Relators request an oral argument.



TO THE HONORABLE SUPREME COURT OF TEXAS:

         COMES NOW LUMBERMENS MUTUAL CASUALTY COMPANY [“Lumbermens”],

and complains of the Honorable Court of Appeals for the Sixth Judicial District of Texas at

Texarkana, Respondent and files this Petition for Writ of Mandamus and Motion for Temporary

Injunction Pendente Lite, and would respectfully show the Supreme Court of Texas as follows:

                                                      I.
                                   Preliminary Statement of the Case and
                                   the Necessity for Extraordinary Relief

         This case involves a miscarriage of justice. The judgment hanging over Lumbermens results

from divide and conquer tactics on the part of Sonat Exploration Company [“Sonat”], the Real-Party-

In-Interest. It has brought several claims arising out of the same incident which it separately filed,

consolidated, severed, re-consolidated and then tried separately1 – all in a so-far completely

successful attempt to enforce its will, despite the dubious legality of its claims. Meanwhile, parties

identically situated to Lumbermens have escaped Sonat’s pursuit by successfully avoiding Texas

courts while obtaining complete relief from the Courts of Louisiana which have ruled, among other

things, that “Louisiana’s public policy and legislative intent are involved in the dispute and it is

reasonable to apply Louisiana law to this Louisiana catastrophe.” See Brooks, infra at 1034.


         1
            All in the wrong county, by the way. The Master Service Agreement underlying all of Sonat’s claims
specifies venue in Harris County, Texas.

P ETITION FOR W RIT O F M AN D AM U S AN D
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         At the heart of this Petition for Writ of Mandamus and Lumbermens’ Motion to Intervene

below is a choice-of-law issue that Lumbermens is just as keen to have addressed as Sonat is

desperate to avoid.2 Ultimately, at issue is Sonat’s entitlement – or lack thereof – to over thirty

million dollars ($30,000,000.00) in Lumbermens policy proceeds as a result of indemnity agreements

and insurance provisions encompassed in a Master Service Agreement executed between Sonat and

Cudd Pressure Control, Inc. [“Cudd”].3 This agreement governed the work performed on a gas well

drilled in Louisiana. The question is whether Louisiana law or Texas law should apply to indemnity

and insurance claims arising from the blowout of that Louisiana well.

         Lumbermens needs to raise the choice-of-law issue in the Court of Appeals below to protect

its rights. If Louisiana law applies to these issues, the indemnity provision upon which Sonat has

secured its judgment below is void, and the insurance requirement in the same contract – pursuant

to which Sonat is also pursuing Lumbermens directly in proceedings currently pending in the District

Court – is also void. That determination needs to be made now – rather than upon some future

appeal after the Sonat v. Lumbermens trial. Sonat intends to push through the appeal below and take

the bulk of the policy proceeds prior to the trial of the subsequent case against Lumbermens so that,

even if Lumbermens is successful in proving that Louisiana law should apply, the relief will come

only after Sonat has enriched itself by more than twenty-five million dollars ($25,000,000.00) to



         2
           The choice-of-law issue was decided below by the Honorable Bonnie Leggat on summary proceeding
without comment as to why that Court reached the opposite conclusion as did the Louisiana District Court and the
Louisiana Court of Appeal.

         3
           An identical Master Service Agreement was signed by Brooks W ell Services. The very indemnity
provision that the Trial Court below has held valid and enforceable was held void by the Louisiana Second Judicial
District Court arising out of the exact same incident. For a more complete recitation of the facts of the underlying
case, see Lumbermens’ Motion to Intervene which is included in the Compendium of Exhibits at Exhibit 1.

P ETITION FOR W RIT O F M AN D AM U S AN D
M OTION FOR T EM PO RARY I N JU N CTIO N P END ENTE L ITE W ITH B RIEF                                       P AGE 2
which it is not legally entitled. Simply put, the bank will have been robbed and the banditos will be

across the border.

         In addition to this Petition for Writ of Mandamus, Lumbermens seeks a Temporary

Injunction Pendente Lite to maintain the status quo between the parties and to protect the jurisdiction

of the Supreme Court of Texas in deciding this matter. This injunction is necessary because once

the policy proceeds have been seized, this matter becomes legally mooted and the Jurisdiction of the

Supreme Court of Texas will be destroyed.

                                                     II.
                                Jurisdiction of the Supreme Court of Texas


         The Supreme Court of Texas has mandamus jurisdiction pursuant to TEXAS GOVERNMENT

CODE § 22.002.

                                                  III.
                             The Record Before the Supreme Court of Texas


         Further, as its stipulated record for this mandamus, Relators have included the following

certified and/or sworn documents:

         1.        Lumbermens’ December 19, 2003 Motion to Intervene;

                   a.       Transcript of the March 7, 2002 hearing before the Second Judicial District

                            Court in Bienville Parish, Louisiana (attached as Exhibit 1 to Lumbermens’

                            Motion to Intervene);

                   b.       June 27, 2003 opinion of the Louisiana Court of Appeal for the Second

                            Circuit (attached as Exhibit 2 to Lumbermens’ Motion to Intervene);

                   c.       Plaintiff’s Original Petition in Cause No. 00-0775; El Paso Production

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                            Company (f/k/a Sonat Exploration Company) v. Cudd Pressure Control, Inc.

                            And Lumbermens Mutual Casualty Co., in the 71st Judicial District Court of

                            Harrison County, Texas (attached as Exhibit 3 to Lumbermens’ Motion to

                            Intervene);

                   d.       Master Service Agreement between Cudd Pressure Control, Inc. and Sonat

                            (attached as Exhibit 4 to Lumbermens’ Motion to Intervene);

                   e.       El Paso’s Motion to Dismiss its claims against Cudd in Cause No. 00-0775-

                            01 (the severed claim) (attached as Exhibit 5 to Lumbermens’ Motion to

                            Intervene);

                   f.       Judge Leggat’s October 10, 2003 order dismissing El Paso’s claims against

                            Cudd with prejudice (attached 5 to Lumbermens’ Motion to Intervene).

         2.        Sonat’s Response in Opposition to Lumbermens’ Motion to Intervene;

         3.        Lumbermens’ Reply to Sonat’s Response in Opposition to Lumbermens’ Motion to

                   Intervene;

         4.        The Court of Appeals’ letter notification that Lumbermens’ Motion to Intervene had

                   been overruled;

         5.        Lumbermens’ Motion for Rehearing and Rehearing en banc;

         6.        The Court of Appeals’ letter notification that Lumbermens’ Motion for Rehearing

                   and Rehearing en banc was overruled;

         7.        Cudd’s Notice of Appeal;

         8.        Rule 11 agreement between Sonat and Cudd requiring Cudd to drop the choice-of-

                   law issue from this appeal;

P ETITION FOR W RIT O F M AN D AM U S AN D
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         9.        Brooks Well Servicing, Inc., et al. v. Cudd Pressure Control, Inc., et al., 850 So.2d

                   1027, 1034 (La. App. 2nd Cir. 2003);

         10.       Notification letter to all parties and interested entities pursuant to Rule 52.10 of the

                   TEXAS RULES OF APPELLATE PROCEDURE .

         All of the foregoing Exhibits are incorporated into this Petition as if fully set forth. The

affidavit verifying the facts upon which the petition is based, as well as verifying each document

included in the Compendium of Exhibits is located at the end of this Petition.

                                                          IV.
                                                   Issues Presented


                                                       Issue No. 1

         The Court of Appeals abused its discretion when it overruled Lumbermens Mutual
         Casualty Company’s Motion to Intervene into the underlying appeal.

                                                       Issue No. 2

         The dispositive Choice-of-Law Issue that permeates this case should be addressed
         here and now.

                                                       V.
                                          Statement of Pertinent Facts


         Lumbermens issued a policy of insurance to Cudd Pressure Control, Inc.’s corporate parent

RPC, Inc. That is the only fact that is simple about this case. The remaining facts and claims

surrounding the deaths and personal injuries that occurred as a result of the October 24, 1998

blowout and fire of the Otto Cummings No. 2-Alt. well in Bienville Parish, Louisiana are tangled

and involve multiple lawsuits in the state and federal courts of Texas and Louisiana – often



P ETITION FOR W RIT O F M AN D AM U S AN D
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producing different results.4

         After the blowout, multiple wrongful death, personal injury and survival claims were filed

against Sonat, Cudd and Brooks Well Control (another Sonat contractor). Further, Sonat brought

claims against Cudd and Brooks Well Control – and their respective insurers – in Harrison County,

Texas, pursuant to the respective Master Service Agreements [“MSA”] between Sonat and Cudd and

Sonat and Brooks.5 Both Cudd and Brooks brought declaratory judgment actions seeking to have

the choice-of-law provision determined. At issue was whether Louisiana law or Texas law controls.

The final determination of that issue is critical to this case because it is dispositive.

         The Louisiana courts determined that Louisiana law applied and the Louisiana Second Circuit

Court of Appeal delivered an opinion providing its rationale.6 See Exhibit 9. In so doing, the

Louisiana courts excused Brooks from the indemnity agreement contained in the Sonat/Brooks

Master Service Agreement (which is identical for all intents and purposes to the Sonat/Cudd Master

Service Agreement) by voiding the agreement as a matter of Louisiana law. The Louisiana courts

did not excuse Cudd because Cudd filed an exception of lis pendens at an earlier stage of the

proceedings. Instead, the Louisiana courts left Cudd and its insurer, Lumbermens, to their Texas

remedy, such as it is, even though the courts ruled that Louisiana law applied to the blowout.

         4
             To the extent that the Supreme Court of Texas is interested, a more comprehensive recitation of the
underlying facts and claims is contained in Exhibit 1 in the Compendium of Exhibits filed contemporaneously with
this Petition for Writ of Mandamus and Motion for Injunction Pendente Lite.

         5
          The claims were brought in Harrison County, Texas despite clear venue provisions calling for Harris
County, Texas. These venue provisions were ignored by the Harrison County District Court.

         6
           Similarly, the District Court’s rationale for applying Louisiana law is set out at length in Exhibit a, pages
69-73. Critically, the Louisiana District Court relied in no small part upon the Supreme Court of Texas’ opinion
in Maxus Exploration Com pany v. Moran Bros., Inc. 817 S.W.2d 50, 57 (Tex. 1991). Lumbermens submits that
the choice-of-law analysis undertaken by the Louisiana Courts, and their reliance upon Maxus, is a correct analysis
of the law which has lead the Louisiana Courts to the correct conclusion – the same result should obtain here.

P ETITION FOR W RIT O F M AN D AM U S AN D
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Louisiana law prohibits, as a matter of strong public policy, the indemnity and insurance obligations

imposed by the Sonat MSA upon Cudd and Lumbermens.7

            The Harrison County District Court did not see it that way. Evidently, we will never know

why. Without comment, the District Court ruled by summary proceeding that Texas law applied to

a blowout and fire that caused death and personal injury in Louisiana. A liability judgment was

rendered by the Harrison County District Court against Cudd on the Sonat/Cudd MSA.8 Cudd

appealed that judgment and preserved in its notice of appeal all error, including the choice-of-law

issue.9 In an effort to prevent Cudd from proceeding on the choice-of-law issue, Sonat dropped all

of its other filed and threatened claims against Cudd – all of which would have been uninsured – in

exchange for Cudd abandoning the choice-of-law issue in the underlying appeal.10

            Until that moment in time, the interests of Cudd and the interests of Lumbermens were

joined. Lumbermens, which will be called upon to satisfy the judgment against Cudd and which has

posted the twenty-nine million dollar ($29,000,000.00) appellate security, was virtually represented

by Cudd in the proceedings below. See e.g. Motor Vehicle Board v. El Paso Independent

Automobile Dealers Association, Inc., 1 S.W.3d 108, 110-112 (Tex. 1999).


            7
         See Brooks Well Servicing ,Inc., et al. v. Cudd Pressure Control, Inc., et al., 850 So.2d 1027, 1034 (La.
       nd
App. 2 Cir. 2003) – attached as Exhibit 9.

            8
            Cudd and Brooks issues have been, from time to time, joined. They were filed together, separately,
consolidated, severed and, ultimately, were tried separately in the Trial Court below. The procedural history of these
claims is so convoluted that more than one appeal (with bond) was filed simply because it was impossible to
determine whether or not a final judgment had been rendered.

            9
                 See the Cudd’s Notice of Appeal included as Exhibit 7 in the Compendium of Exhibits filed
contemporaneously with this Petition for Writ of Mandamus and Motion for Temporary Injunction Pendente Lite.

            10
          See the Rule 11 Agreement included as Exhibit 8 in the Compendium of Exhibits filed
contemporaneously with this Petition for Writ of Mandamus and Motion for Temporary Injunction Pendente Lite.

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         Faced with the critical and dispositive issue being dropped from the appeal, Lumbermens –

on December 19, 2003 – sought to directly intervene into the appeal to assert its own rights.11 The

Court of Appeals notified the parties by letter that it had overruled the Lumbermens Motion on

January 27, 2004.12 Lumbermens filed a Motion for Rehearing en banc to the Court of Appeals on

February 11, 2004.13 Once again, the Court of Appeals notified the parties by letter that it had

overruled the Motion for Rehearing on February 18, 2004.14 Lumbermens now brings this Petition

for Writ of Mandamus and Motion for Temporary Injunction, Pendente Lite.

                                                VI.
                               Argument and Request for Mandamus Relief


                                                       Issue No. 1
                                                        (Restated)

         The Court of Appeals abused its discretion when it overruled Lumbermens Mutual
         Casualty Company’s Motion to Intervene into the underlying appeal.

         1.        The Doctrine of Virtual Representation entitles Lumbermens to assert its
                   rights in the proceeding below

         Texas, unlike Louisiana, is not a direct action state. Insurance companies may not sue or be

sued directly for claims involving their policyholders. However, it is beyond cavil that where an

insurance company’s policyholder is sued for and the policy may be called upon to satisfy the

         11
         See Exhibit 1 in the Compendium of Exhibits filed contemporaneously with this Petition for W rit of
Mandamus and Motion for Temporary Injunction, Pendente Lite.

         12
         See Exhibit 4 in the Compendium of Exhibits filed contemporaneously with this Petition for W rit of
Mandamus and Motion for Temporary Injunction, Pendente Lite.

         13
         See Exhibit 5 in the Compendium of Exhibits filed contemporaneously with this Petition for W rit of
Mandamus and Motion for Temporary Injunction, Pendente Lite.

         14
         See Exhibit 6 in the Compendium of Exhibits filed contemporaneously with this Petition for W rit of
Mandamus and Motion for Temporary Injunction, Pendente Lite.

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judgment, the insurance company’s interests are involved. As such, Texas law recognizes the

doctrine of virtual representation.15 City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d

750, 754-55 (Tex. 2003). This doctrine recognizes that in circumstances such as those presented to

the Court of Appeals below, persons and entities who are not named in the proceedings below can

still be bound by a judgment in those proceedings to such an extent that to deny those parties the

right of an appeal would be unjust. See, e.g. Continental Casualty Co. v. Huizar, 740 S.W.2d 429,

439 (Tex. 1987 )(Kilgarlin, J. Concurring, citing Grohn v. Marquardt, 487 S.W.2d 214 (Tex. Civ.

App. – San Antonio 1972, writ ref’d n.r.e.)). In Huizar, the concurrence and the dissent expressly

discussed the right of an insurance company to appeal the ruling of the trial court under the doctrine

of virtual representation. Ultimately, the majority ruled that the insurer waived its right to appeal

because it had already voluntarily paid its policy limits.

         Lumbermens has done no such thing. Instead, Lumbermens has, at enormous expense,

secured its right and Cudd’s right to appeal a wrongfully rendered judgment. The supporting

language of Huizar, although dicta, is compelling.

         The City of San Benito is a recent opinion from the Supreme Court of Texas re-affirming the

doctrine of virtual representation. In that case, the Supreme Court ruled that the most important

consideration in the determination of whether a party should be allowed to assert its rights upon



         15
            Texas law is generally conservative and normally consistent with the laws of her sister states. Not
surprisingly, many other states recognize a similar or an identical doctrine of virtual representation. See e.g. Morris
v. Cornerstone Propane Partners, L.P., ___ So.2d ___, 2003 W L 22320952 (Ala. 2003); Cook v. Sullivan, 829 A.2d
1059, 1065 (N.H. 2003); In re Estate of Dickey, 761 N.Y.S. 473 (N.Y. Sur. 2003); Massey v. David, 831 So.2d 226,
233 (Fl. App. [1 st Dist.] 2002); Barkan v. Massachusetts Insurance Insolvency Fund, 739 N.E.2d 1139 (Mass. App.
Ct. 2000); Rowe v. Grapevine Corp., 527 S.E.2d 814 [fn. 26] (W .Va. 1999); Lin-Well Development Corp. v. Preston
& Farley, Inc., 710 So.2d 578, 580 (Fla. App. [2 nd Dist.] 1998), and; Morrow v. Vineville United Methodist Church,
489 S.E.2d 310, 315 (Ga. App. 1997).

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appeal was whether that party was bound to the judgment in the case. City of San Benito, 109

S.W.3d at 755. In this case, Lumbermens is and will be so bound – it has secured and posted

a $29,000,000.00 appellate security to protect those rights, including the right to challenge the

choice-of-law ruling. Lumbermens policy proceeds or, alternatively its posted security, are

subject to execution if the underlying judgment is allowed to stand.

         After Lumbermens posted the bond and after Cudd originally filed its notice of appeal

preserving all issues, including the choice-of-law issue, the continuing threat of a subsequent

uninsured claim inspired Cudd to drop the choice-of-law issue in exchange for a truce with Sonat.

See Exhibit 8. As matters currently stand, Cudd’s position does not protect Lumbermens’ interests.

         The facts of this case, for the reasons enumerated in Huizar, compel the conclusion that

because Lumbermens is bound by the judgment below and because its interests are not now fully

protected for the reasons explained above, and because its interests have now diverged from that of

Cudd, it must be allowed to intervene to advocate its position in the proceedings below. The failure

of the Court of Appeals to allow Lumbermens its right to intervene effectively denies it its

substantive legal right and is an abuse of discretion as a matter of law.

         2.        The Supreme Court of Texas needs to clearly delineate the procedure for coming into
                   an appeal to assert legal rights.

         City of San Benito and Huizar unquestionably confirm that the doctrine of virtual

representation, as well as a third-party’s right to come into an appeal to which it is not a party to

protect its interests that will be directly affected by the outcome of the appeal, both exist. However,

even the most careful reading of these opinions and the opinions upon which they rest will not reveal

the exact procedure for coming into an appeal to which one is not a party. Despite careful review


P ETITION FOR W RIT O F M AN D AM U S AN D
M OTION FOR T EM PO RARY I N JU N CTIO N P END ENTE L ITE W ITH B RIEF                         P AGE 10
on the part of Lumbermens’ counsel, no case; no statute; no rule of law or article sheds any

illumination upon exactly how one should make one’s presence known to the Court of Appeals.

That having been said, introducing one’s self into an ongoing claim whereby one’s interests will be

affected is hardly new in Texas law – or any other state for that matter. It is called an intervention

and Lumbermens attempted to intervene.16

         The lack of procedural guidance has caused Lumbermens to find itself in front of the

Supreme Court of Texas on Petition for Writ of Mandamus. Under ordinary procedural law in

Texas, anyone may intervene subject to being stricken for sufficient cause upon motion by any party.

See Rule 60 of the TEXAS RULES OF CIVIL PROCEDURE . There is no corresponding rule in the Texas

Rules of Appellate Procedure. The Court of Appeals simply overruled Lumbermens’ motion to

intervene without more – twice.

         How then, does one exercise the right that the Supreme Court of Texas has expressly

recognized? If there is some procedural vehicle to which Lumbermens must affix itself in order to

join the fray in the Court of Appeals below, this Court should speak it and we shall make it so.

Otherwise, this Court should issue a writ of mandamus ordering the Court of Appeals to lower the

drawbridge and Lumbermens shall enter of its own accord.




         16
                    intervention, n. 1. The entry into a lawsuit by a third party who, despite not being named a party
                   to the action, has a personal stake in the outcome. . . . 2. The legal procedure by which such a third
                   party is allowed to become a party to the litigation. 3. (regarding a foreign nation’s interference
                   with force).

B LACK ’S L AW D ICTION ARY 826 (7 th Edition 1999).

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         3.        In general, the right to intervene should be freely applied subject to being
                   stricken

         The law in Texas is clear regarding a party’s right to intervene. In Guaranty Federal Savings

Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990), the Supreme Court of Texas

reiterated well-settled Texas law, to wit:

             Rule 60 of the Texas Rules of Civil Procedure provides that “[a]ny party may
         intervene, subject to being stricken out by the court for sufficient cause on the motion
         of the opposite party . . . .” TEX.R.CIV.P. 60. An intervenor is not required to
         secure the court’s permission to intervene, the party who opposed the intervention
         has the burden to challenge it by motion to strike.

Id. In fact, that opinion reversed the denial of the intervention on the basis that absent a Motion to

Strike – as here – striking an intervention is an abuse of discretion. Id. On that basis alone, the

Supreme Court of Texas should grant this Writ of Mandamus.

         While the test for intervening at the trial court level is not directly applicable for the reasons

discussed below, the justification for allowing an intervention at the trial court level and for allowing

Lumbermens to come into this appeal to protect its rights is directly applicable. With regard to the

test for intervention at the trial court, the Supreme Court of Texas in Horseshoe wrote:

             Furthermore, under Rule 60, a person or entity has the right to intervene if the
         intervenor could have brought the same action or any part thereof in his own name,
         or, if the action had been brought against him, he would have been able to defeat
         recovery or some part thereof. (Citation omitted).

Id.
         As mentioned, while this is not directly applicable because Texas is not a direct action state,

the basis for a party’s absolute right to intervene and the rationale behind the Supreme Court of

Texas recognition of the doctrine of virtual representation is directly applicable. Succinctly stated:

any entity who will be affected by the ruling of any Court has the right to come before that Court and


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protect itself.17 To the extent that the policyholder is protecting the rights of the insurance

company the insurance company is virtually represented. As such, it need not – in fact, cannot

– appear in its own name. To the extent that the policyholder cannot or will not protect the

insurance company’s rights – the insurance company has the recognized right to come into the

court and protect itself. For this reason, the Supreme Court of Texas must grant this petition for

writ of mandamus.

                                                       Issue No. 2
                                                        (Restated)

         The dispositive Choice-of-Law Issue that permeates this case should be addressed
         here and now.18

         The choice-of-law issue that is the centerpoint of this litigation is ripe for review. In addition

to being ripe, this issue is also dispositive to all of the issues at the Court of Appeals and those

remaining at the trial court below.




         17
             It is here that the logic of Morrow v. Vineville United Methodist Church, 489 S.E.2d 310, 315 (Ga. App.
1997) – cited in footnote 15 – is inescapable. There the Georgia Court of Appeals ruled that its doctrine of virtual
representation rests upon the State of Georgia’s Constitutionally open courts. Texas, like Georgia, has
Constitutionally open courts so that “every person for an injury done him, in his lands, good, person or reputation,
shall have remedy by due course of law.” C O N STITUTIO N OF THE S TATE O F T EXAS Art. 1, §13. Lumbermens must
be allowed to enter the proceeding below and protect its property.

         18
             If the Supreme Court considers this petition, Sonat will likely broadcast the “controlling” decision of
Chesapeake Operating Co. v. Nabors Drilling USA, Inc., 94 S.W .3d 163 (Tex. App. – Houston [14 th Dist.] 2002, no
pet.)(en banc). Lumbermens wishes nothing more than the opportunity to address Chesapeake – a decision which
had not been rendered when the District Court summarily determined the choice-of-law issue here. Given the sharp
divisions of the Court of Appeals in Chesapeake (to the point of a tie-breaker Justice being assigned by this Court)
and the fact that the scenario feared by the dissents (diametrically opposed decisions by the courts of neighboring
states on the same case) has in fact com e to pass in this case, this would be a most opportune time for the Supreme
Court of Texas to address Chesapeake and this Court’s own prior ruling in Maxus Exploration Co. v. Moran Bros.,
Inc., 817 S.W .2d 50, 57 (Tex. 1991). Maxus and Chesapeake appear to be inapposite.

P ETITION FOR W RIT O F M AN D AM U S AN D
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         4.        Cudd timely preserved the Choice-of-Law issue in its Notice of Appeal. It
                   only abandoned that issue under pressure from Sonat, and as part of a
                   settlement agreement to which Lumbermens was not a party and which is
                   contrary to Lumbermens’ interests.

         Knowing that a reversal on the choice-of-law would deprive it of its “reward,” Sonat served

notice of its intent to pursue uninsured remedies against Cudd to punish it financially. Facing the

distinct possibility of another summary ruling from Judge Leggat exposing it to a $35 million

uninsured judgment, Cudd dropped from its appellate brief the choice-of-law issue that it had

originally preserved in its notice of appeal. The agreement to drop that issue is memorialized in a

Rule 11 agreement between Sonat and Cudd.19

         5.        The Court of Appeals should acknowledge the Louisiana Court of Appeals’
                   opinion regarding the choice-of-law issue as a matter of Judicial Comity

         The Second Circuit Court of Appeal for the State of Louisiana, in reviewing the posture of

the case before it as it related to both Sonat and Cudd, made some interesting observations, to wit:

         Cudd filed its claim in the first filed suit. Louisiana’s public policy and legislative
         intent are involved in the dispute and it is reasonable to apply Louisiana law to
         this Louisiana catastrophe. In addition, the contract [the MSA] was signed and the
         work was performed in Louisiana. Furthermore, Cudd is not a Texas corporation and
         does not have offices in Texas. Cudd’s operational headquarters is in Houma,
         Louisiana with offices in Belle Chasse, Shreveport, Lafayette and Maurice. Cudd
         signed the MSA in Houma, where the insurance policy was delivered to Cudd and
         the demand for indemnity was received by Cudd.


         Brooks Well Servicing, Inc., et al. v. Cudd Pressure Control, Inc., et al., 850 So.2d 1027,

1034 (La. App. 2nd Cir. 2003)(emphasis added).




         19
         See Exhibit 8 in the Compendium of Exhibits filed contemporaneously with this Petition for W rit of
Mandamus and Motion for Temporary Injunction, Pendente Lite.

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         “Comity is a principal under which the courts of one state give effect to the laws (or judicial

decisions) of another state . . . not as a rule of law, but rather out of deference or respect.” Hawsey

v. Louisiana Department of Social Services, 943 S.W.2d 723, 726 (Tex. App. – Houston [1st Dist.]

1996, no writ).        The Court of Appeals in Hawsey further observed that “[b]ecause comity is

grounded in cooperation and mutuality, Texas should extend comity by recognizing the laws and the

judicial decisions of other states. . . .” Id.

         Here, the work being performed by Cudd for Sonat was in Louisiana. The explosion and fire,

as well as the resulting injuries and deaths all occurred in Louisiana. There has been a finding,

supported by lengthy reasons, by the Louisiana District Court that Louisiana law controls the

outcome in this case.20 That ruling has been upheld upon appeal. Now, there is a Texas District

Court finding – without any reasons or other comment – that Texas law controls the outcome in this

case. The Texarkana Court of Appeals, if for no reason other than comity, should address this issue

and resolve it. This issue is still alive with regard to Lumbermens. Following City of San Benito,

Huizar and Motor Vehicle Board, Lumbermens should be allowed to have this issue resolved now

at the Court of Appeals below. To put this issue on the back burner and allow Sonat to plunder the

policy proceeds – without addressing the choice-of-law issue that permeates this case – does violence

to Lumbermens’ substantive legal rights and will result in a continued gross miscarriage of justice.




         20
           Including the Court’s reliance upon Maxus Exploration Co. – the controlling authority from the Supreme
Court of Texas. See Exhibit a in the Compendium of Exhibits filed contemporaneously with this Petition for W rit of
Mandamus and Motion for Temporary Injunction, Pendente Lite at pages 69-73.

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                                                         VII.
                                                        PRAYER

         WHEREFORE PREMISES CONSIDERED Relator Lumbermens Mutual Casualty Company

hereby requests that the Supreme Court of Texas, upon consideration of this Petition, immediately

grant the temporary relief requested therein and upon hearing of this Petition that the Supreme Court

of Texas issue a Writ of Mandamus ordering the Court of Appeals for the Sixth Judicial District of

Texas to allow Lumbermens to proceed below.


                                              VIII.
                      MOTION FOR TEMPORARY INJUNCTION PENDENTE LITE
                            AND CERTIFICATE OF COMPLIANCE WITH
                   RULE 52.10(a) of the TEXAS RULES OF APPELLATE PROCEDURE


         Pursuant to Rule 52.10(a) of the TEXAS RULES OF APPELLATE PROCEDURE , Lumbermens

seeks a temporary injunction pendente lite of the proceedings in the Court of Appeals below as well

as any proceedings in the 71st Judicial District Court of Harrison County, Texas. As indicated above

in the brief, to the extent that Sonat can successfully raid the bulk of the policy proceeds from the

Lumbermens policy, the outcome of this matter will become of no moment. Thus, the jurisdiction

of the Supreme Court of Texas will become moot. Lumbermens respectfully requests that the

Supreme Court of Texas enjoin all further proceedings that can diminish the policy proceeds at issue

until the Supreme Court of Texas has had an adequate opportunity to deliberate upon this matter.

         Further, in compliance with Rule 52.10(a), Lumbermens hereby certifies that it has notified

each counsel listed above in the Identities of Parties and Counsel section that a request for temporary

relief will be filed with the Supreme Court of Texas. A true and correct copy of that notice appears


P ETITION FOR W RIT O F M AN D AM U S AN D
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as Exhibit 10 in Lumbermens’ Compendium of Exhibits which is filed contemporaneously with this

Petition for Writ of Mandamus.



                                                         Respectfully submitted,




                                                         _________________________________
                                                         Mr. Christopher Tramonte
                                                         State Bar of Texas No. 20184500
                                                         Wortham Tower, Suite 1815
                                                         2727 Allen Parkway
                                                         Houston, Texas 77019
                                                         Telephone: 713.529.0600
                                                         Facsimile: 713.529.0614

                                                         PLAUCHÉ, MASELLI, LANDRY & PARKERSON, L.L.P.
                                                         Mr. Arthur W. Landry
                                                         Louisiana State Bar No. 7969
                                                         201 St. Charles Street, Suite 4240
                                                         New Orleans, Louisiana 70170-4240
                                                         Telephone: (504) 582-1142
                                                         Facsimile: (504) 582-1172

                                                         Attorneys for Lumbermens Mutual Casualty Co.




P ETITION FOR W RIT O F M AN D AM U S AN D
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                                                            IX.
                                            CERTIFICATE OF SERVICE


         I certify that Rule 9.5 of the TEXAS RULES OF APPELLATE PROCEDURE have been complied

with by serving a copy of this Petition and Motion along with the Compendium of Exhibits upon

each party and interested entity listed above, through their respective counsel of record as well as

upon the Honorable Josh R. Morris III, Chief Justice, Court of Appeals for the Sixth Judicial District

of Texas by certified mail, return receipt requested on this ______ day of March, 2004.



                                                         ______________________________
                                                         Christopher Tramonte




P ETITION FOR W RIT O F M AN D AM U S AN D
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                                                            X.
                                                    VERIFICATION

State of Louisiana          *
                            *
Parish of Orleans           *


         BEFORE ME the undersigned authority personally appeared the person know to me to be

Mr. Arthur W. Landry and who, after having been sworn upon his oath, deposed and stated as

follows:


         My name is Arthur W. Landry. I am over the age of twenty-one, have never been
         convicted of a felony offense and am otherwise capable of giving this affidavit. I am
         lead counsel for Lumbermens Mutual Casualty company in this action and all other
         claims arising out of the blowout, explosion and fire at Bienville Parish, Louisiana.
         I have read the above and foregoing Verified Petition for Writ of Mandamus and
         Motion for Temporary Injunction pendente lite. I affirm, based upon my personal
         knowledge that all of the factual statements contained therein are true, correct and
         accurate.

         In addition, I affirm, based upon my personal knowledge, that the documents
         contained in the Compendium of Exhibits filed contemporaneously with this Petition
         for Writ of Mandamus and Motion for Temporary Injunction, Pendente Lite are true
         and correct copies of each document listed in this Petition.

         Further affiant sayeth not.

         SUBSCRIBED AND SWORN TO BEFORE ME ON THIS ________ DAY OF MARCH,
2004.


                                                         ___________________________________
                                                         Notary Public in and for
                                                         The State of Louisiana




P ETITION FOR W RIT O F M AN D AM U S AN D
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