This appeal arises from the denial of additional insured coverage to ExxonMobil under primary and excess liability insurance policies issued to Wyatt. After an explosion at ExxonMobil's Baytown refinery, ExxonMobil settled the lawsuit brought by two injured workers under Cause No. 2011-44838 entitled, McBride, et al. v. Exxon MobJ1 Corp., et ai., in the 125th Judicial Circuit Court of Harris County (the "underlying lawsuit"). The underlying lawsuit then proceeded to trial against Wyatt. The jury in the underlying lawsuit returned a verdict finding that Wyatt was not negligent and that ExxonMobil was solely responsible for the plaintiffs' injuries. After the trial court granted the workers' motion for a new trial, Wyatt sought mandamus relief from this Court.

In the meantime, ExxonMobil filed suit seeking coverage for its settlement of the underlying lawsuit as an additional insured under Wyatt's primary and excess liability policies (the "coverage action"). The same trial court that granted the injured workers' motion for a new trial also presided over the coverage action and granted summary judgment in favor of ExxonMobil and against the insurers. Without supplying any reasoning for its ruling, the trial court found the insurers had a duty to indemnify ExxonMobil for its settlement. This appeal ensued. On the same day that the insurers filed their reply briefs in this appeal, this Court conditionally granted Wyatt's petition for writ of mandamus and ordered *3 Be LAPEROUSE, L.L.C. Mr. Christopher A. Prine, Clerk January 15,2015 Page 3 reinstatement of the jury verdict in the underlying lawsuit. See Wyatt, 2014 WL 7366037, at *14.

The Wyatt mandamus opinion reinstating the jury verdict is relevant to this appeal. In C&I's opening brief, C&I asserts that the proceedings in the underlying lawsuit - including the jury's verdict - are necessary to determining whether ExxonMobil's liability arose out of Wyatt's operations. 1 This is because when the trial evidence and jury verdict establish that the putative additional insured's liability arises out of its own operations, then the additional insured cannot meet its burden of proving it is entitled additional insured coverage. (C&I Opening Br. §III at p. 29-34) Additionally, C&I's opening brief also asserts that the trial court improvidently granted ExxonMobil's summary judgment motion because a determination regarding C&I's indemnity obligation, if any, is necessarily premature until final judgment is entered in the underlying lawsuit. (C&IOpening Br. §III at p. 36-37) Wyattbears directly on these points.

In Wyatt, this Court held that the trial court abused its discretion in granting a new trial because the jury's verdict absolving Wyatt of liability was not against the great weight and preponderance of the evidence. Wyatt, 2014 WL 7366037, at *10. After reviewing the evidence, this Court held that the jury's finding that *4 LAPEROUSE, L.L.C. Mr. Christopher A. Prine, Clerk January 15,2015 Page 4 Wyatt was not negligent was supported by credible testimony establishing that there was nothing in Wyatt's files to confirm that Wyatt had installed certain safety chains in 2008. Id. This Court further reasoned that the jury's finding was also supported by evidence establishing that ExxonMobil's design of, and instructions for installing, a dummy nozzle system were inadequate. Id. This Court therefore ordered the trial court to vacate its order granting a new trial and render judgment on the jury verdict in Wyatt's favor. Id. at 14.

The Wyatt opinion supports C&1's position that ExxonMobil failed to meet its burden of proving it is entitled to additional insured coverage because ExxonMobil's liability in the underlying lawsuit arose out of Wyatt's work. ExxonMobil does not dispute that it had the heavy burden on summary judgment to "conclusively prove" that it was an additional insured under the C&1 policy. (ExxonMobil Br. p. 26) See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,223 (Tex. 1999). The Wyatt opinion reinforces the reasons outlined in C&1's briefing as to why ExxonMobil did not meet that burden. As this Court in Wyatt found, credible evidence established that Wyatt did not perform the work, and that ExxonMobil's installation and design were inadequate. Wyatt, 2014 WL 7366037, at *10. Under both scenarios, ExxonMobil's liability arose out of its own operations - not Wyatt's. Accordingly, in moving for summary judgment ExxonMobil failed to meet its burden to conclusively prove a causal connection between the accident and Wyatt's operations. *5 Be LAPEROUSE, L.L.C. Mr. Christopher A. Prine, Clerk January 15,2015 Page 5

Further, as explained in C&l's opening brief, a final adjudication of liability in the underlying lawsuit is necessary to determine whether Exxon's liability arose out of Wyatt's operations. See Evanston Ins. Co. v. A TOFINA Petrochemicals, Inc., 256 S.W.3d 660, 668 (Tex. 2008) (explaining that "without a determination of liability, it is impossible to say whether [the additional insured's] responsibility for the accident, if any, excluded it from coverage"). At the time the trial court granted ExxonMobil's motion for summary judgment in the coverage action, the jury verdict in the underlying lawsuit had been vacated and a new trial had been ordered. Additionally, while the Wyatt Court has now conditionally granted Wyatt's mandamus writ and ordered that judgment be rendered on the jury verdict, the judgment is not yet final.2 Therefore, if this Court finds that an issue of fact is presented regarding whether liability arose out of Wyatt's operations, C&I requests this Court to reverse and vacate the judgment in favor of ExxonMobil with directions on remand that the coverage action be stayed until final judgment is entered in the underlying lawsuit. 3 *6 LAPEROUSE, L.L.C. Mr. Christopher A. Prine, Clerk January 15, 2015 Page 6

Respectfully submitted, ~~ BRENDAN P. DOHERTY CERTIFICATE OF SERVICE I hereby certify that on the 15th day of January, 2015, a true and correct copy of the above and foregoing instrument was served on all parties and counsel of record, in accordance with Rule 21a, T.R.C.P. Mike Morris Danny L. Van Winkle T EKELL, BOOK, ALLEN & MORRIS , L.L.P. 1221 McKinney, Suite 4300 Houston, Texas 77010 David M. Gunn Beck, Redden & Secrest, LLP One Houston Center 1221 McKinney Street, Suite 4500 Houston, Texas 77010 Brian S. Martin Rodrigo "Diego" Garcia, Jr. THOMPSON, COE, COUSINS & IRONS, L.L.P. One Riverway, Suite 1600 Houston, Texas 77056

BRENDAN P. DOHERTY

NOTES

[1] This letter brief is intended only to supplement C&I's alternative argument that the trial court erred in granting summary judgment because issues of fact exist as to whether ExxonMobil's liability arose out of Wyatt's operations. (C&I Opening Br. §III; C&I Reply Br. §IV) This letter brief does not supersede or waive any arguments previously raised.

[2] Plaintiffs have flied a petition for rehearing en bane from the Wyatt court's mandamus order.

[3] Because this argument is an alternative to C&I's primary argument on appeal that ExxonMobil does not qualify as an additional insured under Endorsement No. 7 (C&I Opening Br. 22-28), if the Court reverses on that issue, the Court need not reach the issue of whether ExxonMobil's liability arose out of Wyatt's operations, and a stay pending judgment in the underlying lawsuit is not required.