UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION In Re: ) Chapter 11 ) WALTER ENERGY, INC., et al., ) Case No.: 15-02741-TOM11 ) Debtors. ) Jointly Administered AMENDED MOTION FOR RELIEF FROM AUTOMATIC STAY AS TO THE DEBTOR WALTER ENERGY, INC COMES now Jewel Chaney, (“Chaney”), and moves the Court pursuant to 11 USC § 362(d)(1) for Relief from Stay to permit Chaney to mediate her civil lawsuit, viz Jewel Chaney, et al v. Jim Walter Resources, et al Case Number 63-CV-2011-900963.00.1 In support of this Motion, Chaney represents as follows: 1. Chaney filed a wrongful lawsuit in the Circuit Court of Tuscaloosa County, Alabama on November 18, 2011 against the Debtor, Walter and other Defendants. A copy of this Complaint is appended as Exhibit “A”; 2. Substantial discovery has been conducted in the state court action and dispositive motions have been filed by various of the parties; 3. The parties agreed to mediate and on June 26, 2015, the civil action was continued to allow the parties to do so. A copy of that order is appended as Exhibit “B”; 4. The parties selected Brad Walsh to mediate the case and the case was scheduled for mediation on August 27, 2015; 1 At this time, Chaney is not requesting relief from stay to prosecute her claims against the Debtor, Walter Energy Inc. (Walter) in state court. Instead, Chaney simply seeks relief to mediate. Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 1 of 87 5. The Defendant Walter filed its Chapter 11 Petition on July 15, 2015; 6. On July 22, 2015, a suggestion of bankruptcy was filed with the Tuscaloosa County Circuit Court. A copy of this pleading is appended as Exhibit “C”; 7. Through discovery, Chaney has learned that one of the non-debtor Defendants, Black Warrior Methane Corporation (“Black Warrior”) possesses insurance which provides coverage for the claims she asserts in the civil action. A copy of the declaration page related to this insurance coverage is appended hereto as Exhibit “D”; 8. Chaney has also learned through discovery that Walter Energy is named as additional insured under the Black Warrior policy.2 A copy of the endorsement reflecting this status is attached as Exhibit “E”. 9. Chaney desires relief from stay solely for the purpose of allowing her to mediate her state court action. In the event the mediation is successful, the likely result will be that the state court action will be dismissed with prejudice as to all Defendants including the Debtor; 10. Granting relief from stay for purposes of mediation only will have no deleterious effect on the Debtor, the Debtors estate or the creditors of the Debtor. 11. In determining whether to lift the automatic stay, this court is obliged to balance the hardship to the creditor, if she is not allowed to proceed with her lawsuit, against potential prejudice to the debtor, the debtor’s estate and other creditors. In re: Carraway Methodist Health Systems, 355 B.R. 853 (2006). 2 The insurance carrier for Black Warrior has declined to engage in mediation while its additional insured, Walter is in bankruptcy absent an order granting relief from stay. Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 2 of 87 12. In the present matter the hardship to Chaney substantially outweighs prejudice to the debtor and other creditors: A.) Chaney’s state court action has been pending for nearly four (4) years; B.) Chaney does not seek relief from stay to liquidate her claim but rather to engage in mediation which was scheduled pre-petition; C.) If mediation is successful, any agreed upon settlement proceeds will be paid from available insurance and not from the debtor’s estate; D.) If the mediation is successful the debtors will be relieved of what could be a significant claim; E.) The mediation is expected to last one (1) day and the cost of the same to the Debtor will upon information and belief be born by the insurance carrier. WHEREFORE, Chaney prays that this honorable Court will enter an order granting her relief from the automatic stay to proceed with the mediation in the state court action and for such other, further, different or additional relief which it may deem proper. /s/ Bobby H. Cockrell, Jr. Bobby H. Cockrell, Jr. (COC-008) /s/ Ginger D. Cockrell Ginger D. Cockrell (COC-009) OF COUNSEL: COCKRELL AND COCKRELL 1409 University Boulevard Tuscaloosa, Alabama 35401 (205) 349-2009 Email: [email protected] /s/ Albert G. Lewis Albert G. Lewis, III (LEW-010) OF COUNSEL: LEWIS, SMYTH & FORD, LLC 611 Helen Keller Boulevard Tuscaloosa, Alabama 35404 (205) 553-5353 Email: [email protected] Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 3 of 87 /s/ Bryan P. Winter Bryan P. Winter (WIN-028) OF COUNSEL: WINTER AND MCFARLAND 205 McFarland Circle N. Tuscaloosa, Alabama 35401 (205) 650-1400 Email: [email protected] Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 4 of 87 ELECTRONICALLY FILED EXHIBIT A 11/18/2011 5:24 PM CV-2011-900963.00 CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA MAGARIA HAMNER BOBO, CLERK IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT TUSCALOOSA COUNTY, ALABAMA CIVIL DIVISION JEWEL CHANEY, as the Administratrix of the Estate of James Luther Chaney, deceased, and JEWEL CHANEY, individually, Plaintiffs, v. JIM WALTER RESOURCES, INC., an Alabama Corporation; WALTER ENERGY, INC., a foreign corporation qualified to do business in the State of Alabama; BLACK WARRIOR METHANE CORPORATION, an Alabama Corporation; EL PASO CORPORATION, a foreign corporation qualified to do business in the State of Alabama; EL PASO PRODUCTION COMPANY, INC., a foreign corporation that is a subsidiary of El Paso Corporation; MINE SAFETY APPLIANCES COMPANY, INC., a foreign corporation qualified to do business in the State of Alabama; KEITH SHALVEY, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; Page 1 of 60 Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 5 of 87 TRENT THRASHER, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; KEITH PLYLAR, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; PAUL PHILLIPS, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; MILTON ETHRIDGE, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; TY OLSON, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; WILLIAM BURGESS, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; WILLIAM HAROLD JONES, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; ROMIE PENDLETON, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; TOMMY McNIDER, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; Page 2 of 60 Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 6 of 87 JOE STEELE, an Alabama Resident, individually and as an agent, servant and employee of Black Warrior Methane Corp.; GEORGE RICHMOND, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; ROBERT HOWELL, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; GARY ALLINSON, an Alabama Resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; DALE BYRAM, an Alabama resident, individually and as an agent, servant and employee of Jim Walter Resources, Inc.; CHARLES WILLIS, an Alabama resident, individually and as an agent, servant and employee of Black Warrior Methane Corporation; FICTITIOUS DEFENDANTS 1-10, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation or other legal entity, or successor in interest, and the respective managers, executives, directors, and board members thereof, and the respective supervisors managers, executives, directors, and board members thereof, that designed, engineered, constructed, de-gasified, ventilated, assembled, installed, operated, inspected, maintained, repaired, owned, leased, responsible for safety of, and/or utilized the No. 2 Longwall (also known throughout this complain as the Page 3 of 60 Case 15-02741-TOM11 Doc 799 Filed 09/28/15 Entered 09/28/15 17:24:39 Desc Main Document Page 7 of 87 Southwest A Longwall) and its bleeder system of the No. 7 Mine, for safety, which caused or contributed to cause the death of the Plaintiff’s husband and decedent on the occasion made the basis of this lawsuit; FICTITIOUS DEFENDANTS 11-20, whether singular or plural, intending to refer to the true name of that person or persons, firm, corporation or other legal entity, or successor in interest, and the respective supervisors managers, executives, directors, and board members thereof, who or which negligently, recklessly, wantonly and/or intentionally and/or in violation of the Alabama Extended Manufacturer’s Liability Doctrine or any express or implied warranties, designed, engineered, manufactured assembled, installed, inspected, maintained, supplied, sold, retailed, trained, designed warnings for, marketed and/or placed on the market certain monitoring device(s) and/or equipment, or any component part thereof, including but not limited to the MSA Solaris Multigas Detector or any component part thereof, that monitored or failed to monitor the levels of various gasses, substances and conditions in the No.