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Legal Watch: Volume 16
Prepared by William H. BodeCase Summary: Carbo Industries, Inc. on January 1, 2000 entered into a Terminaling Agreement with Coastal Refining and Marketing, Inc. and El Paso Corporation for the storage of petroleum products in Carbo’s storage terminal in Lawrence, New York. The term of the Agreement was one year; however, the contract also included an automatic renewal clause, which provided that unless either party received written notice of cancellation at least six months prior to the end of the then-current term, the contract would automatically renew the following year. Neither party cancelled the contract for the years 2001, 2002, or 2003. On November 12, 2003, however, the defendants sent a letter to Carbo stating that they were canceling the contract. Carbo sued for breach of contract, and a federal court granted summary judgment to Coastal Refining and El Paso Corporation. Carbo appealed to the Second Circuit Court of Appeals. The question before the appeals court was whether New York General Obligation Law, Section 5-903 applied. That Section provides that when there is a “contract for service, maintenance, or repair for any real or personal property” the service provider (Carbo) must give the other party (Coastal) at least fifteen, but not more than thirty days’ notice of the existence of the automatic renewal provision for that provision to take effect. The appeals court noted that the Terminaling Agreement required Carbo not only to maintain storage facilities, but also to provide “insurance coverage…automated card controlled truck loading…inventory verification… and special additive equipment.” Thus, the Circuit Court concluded that the contract was for “services” and Carbo’s failure to provide notice of the pending expiration date permitted Coastal Refining and El Paso Corporation to cancel the Agreement.
Bode & Grenier, LLP
1150 Connecticut Ave., NW
Washington, D.C. 20036
Telephone: 202-862-4300 | Email: email@example.com
COASTAL PETROLEUM PERMITTED TO CANCEL TERMINALING AGREEMENT DESPITE AUTOMATIC RENEWAL CLAUSE
LESSON: It would be prudent for terminal operators to determine whether statutes similar to New York’s Section 5-903 exist in states where terminaling agreements exist. In such cases, the terminal operator should establish a noticing system that assures timely notice of the expiration date is given. The terminal operator also may wish to insert contract language that provides that the customer waives its right to receive any statutory notices. Not all states will enforce such a waiver clause but, nevertheless, there exist tactical reasons for including them in terminaling agreements. (Carbo Industries, Inc. v. Coastal Refining & Marketing, Inc. and El Paso Corporation)
CLARK USA, INC., A HOLDING COMPANY, CAN BE SUED FOR WRONGFUL DEATH BECAUSE ITS “OVERALL BUSINESS STRATEGY” RESULTED IN SEVERE BUDGET CUTS THAT ELIMINATED SAFETY TRAINING AT SUBSIDIARY CLARK REFINING AND MARKETING, INC.
LESSON: Clark USA probably would have been spared the lawsuit had it commissioned a study, in connection with the budget cuts, to evaluate the effects of the cutbacks on safety. And as a general matter, it is a sound corporate practice to commission periodic “safety reviews” which examine, among other things, the adequacy of employee training. (Forsythe v. Clark USA, Inc.)
COMPANY THAT DISCHARGED NEW EMPLOYEE BECAUSE HE TESTIFIED AGAINST THE COMPANY IN AN EARLIER LITIGATION ORDERED TO PAY $500,000 IN PUNITIVE DAMAGES PLUS THREE YEARS PAY
LESSON: Any decision to terminate an employment agreement ideally should be reviewed by counsel. In particular, an employer should never inform a worker that he is being terminated because of any acts performed in public or legal proceedings deemed harmful to the company. (Reust v. Alaskan Petroleum Contractors, Inc.)
Please address any comments or questions to Mr. Bode at 202-862-4300 or firstname.lastname@example.org.
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