pjc-oil-and-gas-2022-lib

O IL AND G AS I NDUSTRY A GREEMENTS

PJC 305.28

PJC 305.28 Questions and Instructions on Breach by Operator under Joint Operating Agreement Exculpatory Provision If you answered “Yes” to Question ______ [ 305.27 ], then answer the follow ing questions. Otherwise, do not answer the following questions. QUESTION 1 Did Don Davis ’s failure to comply result from willful misconduct? Answer “Yes” or “No.” Answer: _______________ QUESTION 2 Did Don Davis ’s failure to comply result from gross negligence? “Gross negligence” means [ insert appropriate definition, e.g., more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission in question was the result of actual conscious indifference to the rights, welfare, or safety of the persons affected by it. ]. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 305.28 should be used when the court has determined that an exculpatory provision of the joint operating agreement applies to the breach alleged. It should be predicated on a “Yes” answer to PJC 305.27. A “Yes” answer to either Ques tion 1 or Question 2 will trigger liability. Either one or both questions should be sub mitted when appropriate under the language at issue or when supported by the evidence. As to whether the exculpatory clause applies to particular conduct, compare Reeder v. Wood County Energy, L.L.C. , 395 S.W.3d 789, 792–93 (Tex. 2012), and Abraxas Petroleum Corp. v. Hornburg , 20 S.W.3d 741, 759 (Tex. App.—El Paso 2000, no pet.), with Stine v. Marathon Oil Co. , 976 F.2d 254, 260–61 (5th Cir. 1992). Source of question. PJC 305.28 is derived from Reeder , 395 S.W.3d at 792–93; Abraxas , 20 S.W.3d at 759; and Stine , 976 F.2d at 260–61. Submission of exculpatory clause question. Although Question 1 and Question 2 are included as separate questions, in Reeder , the court decided the jury was properly

181