i can double check you on your briefs with  the prices to recover of injuries for benjamin bryce who was severely injured in a terrible explosion and fired coffee the refinery back in july twenty fourt which is in direct subsidiary c i c here the matters of this case if we will was dismissed the refinery well they are with they have been pointed to as the party the necessary party throughout the litigation as the primary provider of the services we were taking the opposite position that is true and there is a provision in the contract providing for indemnity for any liability and we believe that applies in this case to that extent there they are a i believe a proper party and i believe there are necessary party i would we happy to brief the issue we asked to do that i did not hear back from the court when we case and the initial opinion that he entered into we found it was ambiguous we believe that it's the farthest thing from ambiguity if you look at the contract and the contract is important it's insignificant in this case the case law in and i'm going to rely on kansas law because kansas is not different and in a material respect from texas or oklahoma but then her kansas law under testing judy can be assumed through conduct but it can be assumed through an express undertaking in fact the courts have always looked with specific significance to an express undertaking to determine if that is the case many of the cases don't have a contract we have the benefit of the contract in this case the contract i believe is to permit of and whether a duty exists obviously the issue of whether the duty breached would have to be tried to a jury in this case the district court got caught up in it vice regarding safety ignoring completely the remaining obligations under the contract which directly resulted we believe in the failure of the poem and the injuries to mr gryce the district court found that the services it says they would provide services necessary to how parade the business is conducted by the refining subs in the the and it would include the management and it would include the management of the assets including maintenance of those assets and other things even a new section three of the contract which they look to with respect to calling it an allocation agreement it's merely a discussion about how well they can charge by by the way by invoice indirect indirect costs in that regard that there is nothing that makes this you cannot turn this services agreement requirements nor is there an f c c requirement for there be a cost allocation agreement i think that if you scan the entire contract you cannot fairly say that this is do the actual safety related work for the actual safety prove to the extent that we're talking about just safety was the it was the refining personnel the management of that was the refinery individuals but that the why below the for such work was retained specifically by c d r energy so it seems to me that high level functioning doesn't get you where you need to be that c v r energy needed to be doing something closer to the safety work what were they doing that gets you where you need to be into the case law where they're not just giving advice and operating at a high level they were not operating at a high level they promise but they may not have operated they may have only done that and were negligence in failing negligent in failing to do that but it is important to say that the that this was day to day operations necessary for the business of the corporation not looking over their accounts not the typical  sit back and say and determine and a higher level whether things are getting done or into a plan but the day to day operations are usually performed at the level of the refinery or the level right above the refinery in this case so let's talk about which is use the seal was an example c b r has gives safety advice to the to the various refine reasoner need that says when you're using the seals you should use a double seal c v r doesn't then undertake to put the double seal him doesn't that would be done at the refinery level c d r undertook cigar energy undertook to make sure that was done and it was done in cordons with industry standards they did not they fail to rise and say well they didn't do it that's right they failed and not only did they not do it they knew they needed to do that so where does it work we go to the record to find evidence that it was going to be c d r's job to make sure that was installed other than just providing the guideline to the refining arm i think you have to my time is ripping by but you need to go to the contract itself the fact that they claim that they did not do it is all this equally evidence that they didn't do it but let me know me had one more thing they did in this in the nature of an independent contractor they have be sued and have to pay for gross negligence or fraud in this case we correct they're grossly negligent but it doesn't matter if they're negligent they have the right to be indemnified by the refinery is there any is there any evidence that the that cv are received more than in its actual cost in providing the services what it what the evidence is and let's be clear the evidence is that this whole arrangement was to allow c d r energy to obtain an income stream then it would not otherwise be able to get as a parent the revenue and the expenses go up to a limited partnership that was for the n l p purposes so they'd have money to distribute i'm talking about see here inner g right they would not be entitled to that ok they are ace they are sixty six or seventy percent owner of companies that own other companies that own the the master limited partnership there's a public aspect of about a third of those people will not get that income stre but it's not just income it's the ability to bring in cost that are associated so it's tens of millions of dollars that they would not be allowed to do which brings up in a conflict of this happen argument you cannot just assume that the the executives who are acting dual capacity are only acting for the refinery there isn't a conflict because there's an economic benefit for the parent corporation in this case and they are operating as an independent contractor this is highly unusual it's highly extrinsic to use the words of the best foods case the other one more point before i'm run out of time you do not mean for purposes of swimming libeling undertaking high building or kansas law you do not need to supplant the  can participate in as well as supplants all of the cases in kansas support that they can assume they did assume the public policy supports the imposition department at the refinery we with the safety manager and a series of employees working for the safety manager and it is repaired and engineered and improved by a maintenance reliability and engineering department that is organic to the refinery and that the refinery and has a number of people and in fact all were doing those jobs at the time well yes you soon the an obligation for the they have some safety function because they interact with regulatory compliance and look at that and work on those issues but they don't do it on a granular basis they're not known they're the best example poorly worded in one appendix of an nine page document that has been used since its inception soley to allocate on a quarterly basis the monies that are being paid to executives at the c b r energy level allocate them among the six city areas there in fact it's one of two contracts that are service agreements each one generated at the time a master limited partnerships was created the first one was for the fertilizer distribution that was under ten or five years before this contract if you look at the earlier one in this when it mirrors it perfectly and it is in fact and allocation contract to do just that the best example master limited partnerships were created and it was done so to show how the accountant would be undertaken so that when the money should go back and forth between each different entities their own by different parties with different per if this contract says that they could or would it does it does because there's two things going on here there's the contract issue that's going on there's also the three thousand for a restatement torts liability and that parent immunity when it isn't even when when it has done enough to do it should respond in damages to expire at three twenty four a liability in states that work in kansas in most places it requires that you use certain supplant we're assuming the duty to take it over altogether and when you take it over a month we're responsible for that but if you don't take it all over altogether then the natural management that hundreds of cases that all women hate from bestfoods come forward with the natural things you're allowed to do under the love decision is oklahoma and so on that last part mean it is a fact question and that was  and that was thoroughly briefed at the time of summary judgment and what we did is we asked what are the allegations of negligence that are you are asserting against the the c v r entities and essentially they said lack of oversight lack of control you didn't take care of his property and they ended they said we simply assume all the testimony of mr frost and the engineer and that mr frost he said he predicted liability manage the service recipient day to day business and operations and manage the service recipients property and assets in the ordinary course of business so it's not that  was passive just a passive stockholder they were i mean whether they were doing it or not their contract gave them the ability to get in you know seems to me down on a lower level and get involved in these things not at that lower level but yes they have overall supervision that any manager or any stockholder would do under the love decision does or does right well you're not telling us or you that they would have had that it would have would have had to be somebody come in from c v r to change the seals how are you you know obviously it can go up the chain from there and the best example i can give you in this very context is that whether that was a single seal or a couple seal was r m managers at the refinery so that's not company wide the other five refineries under the c v r umbrella don't have the same safety recommendation on the double seal they have they have at the high level they have a program saying it is a good thing to have double seals and you should go forward with double seals but no one is sugar land is determining who puts them in and when what the heart of terminating is they're looking at all the process ha analyses p h a t that are being done across the spectrum of those subsidiaries and making sure the government time having reports from each of the refineries and so on think have you done the fifteen or thirty or sixty items that  as well as the refinery for the dual seals was given to us even dell is c r m engineer and c r m engineer was in the process of doing it and our brief will show you that it was the late as all these things go back and forth in refineries three or four times but the fact is it was not scheduled to have been completed at the time saxon occurred and it also was equally important isn't the the specifics of this p h a were not even known to the executives at sugar land texas they didn't know they never looked at the two thousand and ten p h a with the two seals or talked about they had not come into the plan they had not talked about or they were told me unaware of it because it was granular refinery level is that something they would have looked at i mean or hurt should i think should have looked down you know i think i think they looked at it in the appropriate manner they are not there to tell an operator how to do it and when to do it and what to do is sort of like the military they operate in a certain level and the people that report to them tell them when the ph is a been completed and if they've been completed others tell them have ph is or appropriate or not but it does not go at it after that level that's where they stop they can't go to six different subsidiaries distribution companies pipelines distributing companies purchasing companies and run those things that  liability or to discuss when things were going to be done they were done so that the allocation of all that fifty people in sugar land texas could be apportioned among subsidiaries that they were assisting when they get actually when they  human relations when they did engineering when they contacted regulatory agencies and so on i only have three minutes left because i talk for just a moment to the federal rule twenty one  never november two thousand and fifteen it said in that decision that it was a matter of first impression this case ms file january sixteenth two thousand and sixty essentially two months later so if primary briefer reply brief any aspect of it there has never been allegations of any kind you conceive are refining refining was a recipient of the services under the services agreement it was not  it there were two other non diverse parties a hospital st mary's and a doctor also in kansas it was a confusing thing because the beneficiaries of the state were from i what it seemed like that gov versus it but in fact in numbers parties in order to preserve federal jurisdiction and give effect to a ruling from a federal court on the merits of the defense raised diverse party in other words he was reversed because they found that to be reversible error to not preserve jurisdictional determination that was undertaken with regard to temple x and what happened to st mary's hospital in the dr they were pursued in state court subsequent to that when they were when that they were dropped from the ship and if decision that more evidence needed to be taken and i agree with the second decision that upon considering all of the evidence it was clear what it meant and other words i think he was correct in both orders that he issued he at the beginning were we had we had twenty five or thirty depositions nine expert witnesses thousands of documents and so on at the end of all that we had an ability to present what all this meant and he understood it and huge ruled what did so he has a colloquy and they're discussing the issues he doesn't fully understand or that he isn't comfortable with and how he comes to the the conclusion that the services agreement was just that an allocation mechanism it was not an attempt to take over liability take over a liability granular level when there is no evidence whatsoever in all that was undertaken that they had ever that the sugarland people