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CORPUS CHRISTI PROCUREMENT, INC
D/B/A THE GRILL AT BREWSTER
STREET, ELEANORS COFFEE BAR AND
MARKET, LLC, B&B RESTAURANT GROUP,
LLC D/B/A SHORELINE SANDWICH
COMPANY, BRITE STAR CONSTRUCTION,
L.P., BRITE STAR REMODELING, LLC, GWTF
INVESTMENT LLC, MUSTANG ISLAND
TOWNHOME CONSTRUCTION, LP, VBB
CONSTRUCTION, LLC, NEMO COURT
CONSTRUCTION, LLC, TEASE SALON,
LIMITED LIABILITY COMPANY, KEVIN
MURPHY, INDIVIDUALLY, RICHARD
MARLOW PROCTOR, INDIVIDUALLY, ASHLE
ALIGNO, INDIVIDUALLY, MELISSA GUERRA,
INDIVIDUALLY, TBVB, LLC D/B/A SALON
SALON, SONNY VILLARREAL,
INDIVIDUALLY, ALEYDA DELGADO,
INDIVIDUALLY, AND DAVIS EIERMANN,
INDIVIDUALLY
Plaintiffs
VS.
VALERO REFINING-TEXAS, LP, AND
ERGON ASPHALT & EMULSIONS, INC.
Defendants
NO. ____
Petition and Request for Disclosure against Defendants Valero Refining-Texas, LP and Ergon Asphalt
& Emulsions, Inc., (hereinafter Defendants), and for cause of action would show the Court as
follows:
I.
DISCOVERY-CONTROL PLAN
1.1
Plaintiffs intend to conduct discovery under Level 3 of Texas Rule of Civil Procedure
190.4 and affirmatively plead that this suit is not governed by the expedited-actions process in Texas
Rule of Civil Procedure 169 because Plaintiffs seek relief over $100,000.00.
II.
RELIEF
2.1
3.1
Plaintiff Corpus Christi Procurement, Inc. d/b/a The Grill at Brewster Street
(Brewster Street), is a Texas corporation, with its principal place of business in Corpus Christi,
Nueces County, Texas.
3.2
Plaintiff Eleanors Coffee Bar and Market, LLC (Eleanors) is a Texas limited liability
company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.3
(Shoreline Sandwich) is a Texas limited liability company, with its principal place of business in
Corpus Christi, Nueces County, Texas.
3.4
Plaintiff Brite Star Construction, L.P. (Brite Star Construction) is a Texas limited
partnership, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.5
Plaintiff Brite Star Remodeling, LLC (Brite Star Remodeling) is a Texas limited
liability company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.6
Plaintiff GWTF Investment LLC (GWTF) is a Texas limited liability company, with
3.7
limited partnership, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.8
company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.9
Plaintiff Nemo Court Construction, LLC (Nemo Court) is a Texas limited liability
company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.10
Plaintiff Tease Salon, Limited Liability Company (Tease), is a Texas limited liability
company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.11
County, Texas.
3.12
County, Texas.
3.14
County, Texas.
3.15
Plaintiff TBVB, LLC d/b/a Salon Salon, (Salon Salon), is a Texas limited liability
company, with its principal place of business in Corpus Christi, Nueces County, Texas.
3.16
3.19
Texas with its principal office located in San Antonio, Bexar County, Texas.
3.20
This Court has jurisdiction over the lawsuit because the amount in controversy exceeds
Venue is proper in Nueces County, Texas pursuant to Texas Civil Practice and
Remedies Code 15.002(b)(1) because the incident made the basis for this lawsuit occurred in Nueces
County, Texas. Specifically, the City of Corpus Christis water supply was contaminated due to a backflow incident at the Valero Plant located in Nueces County, Texas.
V.
FACTUAL BACKGROUND
5.1
Late in the evening on December 14, 2016, the City of Corpus Christi (the City) sent
a notice informing citizens that a Back-Flow Incident Leads to Discontinuation of Tap Water Usage
Citywide Until Further Notice.
5.2
The Contamination Notice stated: Late today an unknown chemical substance may
have contaminated the City of Corpus Christi drinking water due to a recent back-flow incident in the
industrial district, and further advised citizens to avoid tap water usage until further notice.
5.3
Citizens of the City were specifically warned against treating the water themselves, that
[b]oiling, freezing, filtering, adding chlorine or other disinfectants, or letting the water stand will not
make the water safe, and that all contact with tap water should be avoided[o]nly bottled water
should be used for all drinking, beverage and food preparation (including baby formula and juice),
making ice, brushing teeth, washing dishes or clothes, washing hands, and bathing until further
notice.
5.4
Plaintiff Eleanors is a full-service coffee bar and market located in Corpus Christi,
Texas that has incurred significant damages because of the water contamination.
5.6
Corpus Christi, Texas that has incurred significant damages because of the water contamination.
5.7
Texas that has incurred significant damages because of the water contamination.
5.8
Corpus Christi, Texas that has incurred significant damages because of the water contamination.
5.9
properties located in Corpus Christi, Texas that has incurred significant damages because of the water
contamination.
5.11
Plaintiff Nemo Court is a construction company and also a holder of rental properties
located in Corpus Christi, Texas that has incurred significant damages because of the water
contamination.
5.12
Plaintiff Tease Salon is a full-service salon and spa located in Corpus Christi, Texas
Plaintiff Murphy is the owner and operator of Plaintiff Tease located in Corpus Christi,
Texas that has incurred significant damages because of the water contamination.
5.14
Plaintiff Aligno is a hair stylist working for Plaintiff Tease in Corpus Christi, Texas
5.15
Plaintiff Guerra is a hair stylist working for Plaintiff Tease in Corpus Christi, Texas
Plaintiff Salon Salon is a full-service salon and spa located in Corpus Christi, Texas
Plaintiff Villarreal is a hair stylist working for Plaintiff Salon Salon located in Corpus
Christi, Texas that has incurred significant damages because of the water contamination.
5.18
Plaintiff Eiermann is a professional tattoo artist located in Corpus Christi, Texas and
As of the date of this filing, the water restriction has not been lifted and Plaintiffs
the Valero Plant in Corpus Christi, Texas (the Valero Plant) which injected an asphalt emulsifier
pollutant called Indulin AA-86 into the Citys water supply.
5.22
It
causes respiratory tract, eye and skin burns, can cause an allergic skin reaction and can cause target
organ damage. See id. Moreover, it is corrosive to the respiratory system and can cause serious health
effects. See id.
VI.
CAUSES OF ACTION
A.
NEGLIGENCE
6.1
6.2
Plaintiffs allege that the back-flow incident and the resulting injuries and damages
suffered by Plaintiffs were caused by the negligence and fault of Defendants. Specifically, these acts
and/or omissions include, but are not limited to the following:
a.
b.
Failure to have a reliable system or device at the Valero Plant to prevent the
release or warn of the release;
c.
d.
Failure to exercise reasonable and prudent care in the operations which were
occurring at the Valero Plant on the date(s) at issue;
e.
f.
g.
h.
i.
Failure to inspect and maintain equipment associated with the refining process;
j.
k.
l.
Operating the Valero Plant without appropriate and trained staffing and
supervision of plant units;
m.
Operating the Valero Plant with equipment and processes that defy reasonable
engineering, industry and regulatory practices;
n.
6.3
o.
p.
Failing to maintain a reliable system and/or device at the Plant to prevent the
release or to warn of the release of toxic and poisonous chemicals;
q.
r.
s.
t.
u.
v.
w.
Failing to warn residents of the affected community after it was known that
dangerous and toxic chemicals were being released into the water supply;
x.
y.
z.
aa.
Failing to properly warn and notify the neighboring residents regarding the
release and dangers from prior and subsequent contamination events; and
bb.
Such other acts and omissions which may be discovered and presented at trial.
As a result of these negligent acts and/or omissions, Plaintiffs have suffered injuries
and damages.
B.
GROSS NEGLIGENCE
6.4
6.5
Plaintiffs would show that the conduct of the Defendants described herein constitutes
gross negligence as defined Texas Civil Practice & Remedies Code 41.001(11)(A)-(B). Defendants are
liable to Plaintiffs for gross negligence, including but not limited to:
6.6
a.
b.
Defendants grossly negligent conduct proximately caused Plaintiffs severe injuries and
damages. As a result of such gross negligence, Plaintiffs are entitled to exemplary damages.
C.
NEGLIGENCE PER SE
6.7
6.8
Defendants actions violate Texas law (including without limitation, the Texas Clean Air
Act, Chapter 382 of the Texas Health and Safety Code, Chapter 7 of the Texas Water Code, and TCEQ
rules and orders promulgated under these statutes) which are intended to protect the publics health and
safety by regulating plant operations, emissions and the reporting of toxic chemical emissions, releases,
leaks and spills. Plaintiffs are among those classes of persons intended to be protected by the
environmental laws of the State of Texas.
6.9
As a result of these acts and omissions by Defendants, such violations of state law have
resulted in a breach of duty to Plaintiffs. Moreover, Defendants continuous and inexcusable violations
of state laws and regulations have been and are presently the proximate cause of Plaintiffs severe injuries
and damages.
D.
6.11
Plaintiffs also specifically plead the doctrine of res ipsa loquitor. Plaintiffs would show that
the character of the water contamination is such that it would not ordinarily happen in the absence of
negligence and the acts or omissions of the equipment and personnel that led to the releases were under
the control of Defendants, their agents, servants, employees and vice- principals at all relevant times.
E.
6.13
Plaintiffs further allege that the operation of the Valero Plant in its original and
damaged/defective condition was extremely hazardous and fraught with danger, and therefore,
constituted an ultra-hazardous activity under Texas law.
6.14
Accordingly, Defendants are strictly liable for Plaintiffs injuries and damages proximately
caused by the release of toxic chemicals into the Citys water supply.
F.
6.16
Plaintiffs allege that Defendants conduct of releasing these chemicals was committed purposefully, or
was committed with substantial knowledge that harm would result to Plaintiffs. Defendants purposefully
contacted Plaintiffs bodies, or had substantial knowledge that their actions would cause such contact,
and the resulting harm that occurred. Such contact harmed Plaintiffs. Plaintiffs therefore seek all damages
allowed by law for such assault and battery.
6.17
Plaintiffs would further show that Defendants conduct was deliberate and intentional or
was committed with substantial knowledge that thousands of people would be exposed to toxic
chemicals and severely harmed by Defendants conduct. By deliberately and intentionally exposing
Plaintiffs and others who worked or lived near the Valero Plant to the hazards of toxic chemicals,
Defendants committed aggravated assault upon Plaintiffs and others, such conduct having proximately
caused the incident in question, and the resulting injuries and damages to Plaintiffs.
G.
6.19
Plaintiffs would show that the conduct of Defendants, as more particularly described
above, was intentional, reckless, extreme and outrageous, and inflicted severe emotional distress on
Plaintiffs.
H.
6.21
Plaintiffs own or occupy land near the Plant and affected by Defendants conduct during
Defendants acts and omissions, beginning in December 2016 caused the Valero Plant to
The ongoing release of chemicals substantially trespassed upon, interfered with, and
invaded the Plaintiffs use and enjoyment of their land, as well as the interests of those owning or
occupying land in or near the Plant by Defendants intentional conduct, negligence, gross negligence,
and negligence as a matter of law. Defendants acts and omissions clearly impair the comfortable
enjoyment of life and property for those who own or occupy property near the Valero Plant and have
caused such persons extreme annoyance, discomfort, fear and loss of peace of mind.
6.24
Further, the acts and omissions complained herein caused contamination of the
Plaintiffs property, and the water on, coming to, and adjacent to the Plaintiffs property, and further
caused the Plaintiffs property to be contaminated with toxins. This contamination was and is harmful
to the health of one or more Plaintiffs property owners, was and is offensive to their senses, and will
obstruct the free use and enjoyment of their property.
6.25
Defendants, for their own purpose and economic profit, chose to create, handle and
maintain the aforementioned toxins at the Plant. In doing so, Defendants released into the water system,
surface water and/or subsurface water to become contaminated which, as a matter of law, constitutes an
abnormally dangerous activity.
6.26
Defendants conduct in producing toxins and causing them to contaminate the property
and water of one or more Plaintiffs is actionable under the rules controlling liability for negligent or
reckless conduct, or for abnormally dangerous conditions or activities or instrumentalities.
6.27
engaged in an abnormally dangerous activity, Defendants are strictly liable to the Plaintiffs for any harm
and injury caused by the abnormally dangerous toxins.
6.28
TRESPASS
6.29
6.30
Plaintiffs would show that Defendants, in furtherance of their business interests, caused
the aforementioned toxins to be produced and released during the conduct of their business at the Valero
Plant.
6.31
the abnormally dangerous activity of producing toxins at the Valero Plant, caused the property of
Plaintiffs to be invaded by the aforementioned toxins, causing great harm and substantial harm to the
person, land and chattels of the property-owning Plaintiffs.
VII.
DAMAGES
7.1
Plaintiffs seek unliquidated damages in an amount that is within the jurisdictional limits
of this Court, including compensatory and monetary damages from Defendants to compensate it for the
damages incurred.
7.2
As a direct and proximate result of the conduct of Defendants, Plaintiffs are entitled to
damages for the injuries they have sustained as a result of this incident.
VIII.
EXEMPLARY DAMAGES
8.1
As a result of the gross negligence of Defendants, they should have exemplary damages
assessed against them in such an amount as the jury may find appropriate.
8.2
Such gross negligence was a proximate cause of the incident made the basis of this suit,
Plaintiffs demand a jury trial and tenders the appropriate fee with this petition.
X.
CONDITIONS PRECEDENT
10.1
All conditions precedent to Plaintiffs claims for relief have been performed or have
occurred.
XI.
REQUEST FOR DISCLOSURE
11.1
Pursuant to Texas Rule of Civil Procedure 194, Plaintiffs request that Defendants
disclose, within fifty (50) days of the service of this request, the information or material described in Rule
194.2.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to appear
and answer herein, that this cause be set for trial before a jury, and that Plaintiffs have and recover
judgment of and from Defendants, jointly and severally, for their actual damages in such amount as the
evidence may show and the jury may determine to be proper, together with prejudgment interest, postjudgment interest, costs of court, and such other and further relief to which they may show themselves
to be justly entitled.
Respectfully submitted,
By: