Case KLP Doc 1520 Filed 10/02/15 Entered 10/02/15 09:13:51 Desc Main Document Page 1 of 9

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1 Document Page 1 of 9 Stephen E. Hessler (admitted pro hac vice) Michael A. Condyles (VA 27807) Patrick Evans (admitted pro hac vice) Peter J. Barrett (VA 46179) KIRKLAND & ELLIS LLP Jeremy S. Williams (VA 77469) 601 Lexington Avenue KUTAK ROCK LLP New York, New York Bank of America Center Telephone: (212) East Main Street, Suite 800 Facsimile: (212) Richmond, Virginia Telephone: (804) and - Facsimile: (804) James H. M. Sprayregen, P.C. Ross M. Kwasteniet (admitted pro hac vice) Justin R. Bernbrock (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, Illinois Telephone: (312) Facsimile: (312) Counsel for the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION ) In re: ) Chapter 11 ) PATRIOT COAL CORPORATION, et al., ) Case No (KLP) ) Debtors. ) (Jointly Administered) ) STIPULATION GRANTING LITIGATION CLAIMANTS RELIEF FROM THE AUTOMATIC STAY TO PURSUE INSURANCE COVERAGE Patriot Coal Corporation and its subsidiaries that are debtors and debtors in possession in these proceedings (collectively, the Debtors ) respectfully represent: 1. On May 12, 2015 (the Petition Date ), each Debtor commenced a voluntary case under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ). The Debtors are authorized to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. The Debtors cases (the

2 Document Page 2 of 9 Chapter 11 Cases ) are being jointly administered pursuant to Rule 1015(b) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ). 2. The Court has subject matter jurisdiction to consider this matter pursuant to 28 U.S.C Venue is proper before this Court pursuant to 28 U.S.C and This is a core proceeding pursuant to 28 U.S.C. 157(b) and may be determined by the Bankruptcy Court. 3. The following claimants seek relief from the automatic stay under 11 U.S.C. 362 for cause to pursue insurance coverage believed to be available under one or more insurance policies issued to the Debtors to satisfy their claims (the Available Coverage ): (a) (b) (c) (d) (e) (f) (g) Charles Nutter holds claims against Catenary Coal Company, LLC in a personal injury action in the Circuit Court of Boone County, West Virginia, Case No. 09-C-23. Michael Toler holds claims against Gateway Eagle Coal Company, LLC and Patriot Coal Corporation for personal injuries suffered on or about May 26, Daniel Ratliff, holds claims against Eastern Associated Coal, LLC and Patriot Coal Corporation for personal injuries suffered on or about July 1, Nicholas Downey, holds claims against Brody Mining, LLC, Patriot Coal Corporation and Black Stallion Coal Company, LLC for personal injuries suffered on or about February 23, 2015 and for wrongful termination and retaliation that occurred on April 3, Gary Mullins, holds claims against Brody Mining, LLC, Patriot Coal Corporation and Black Stallion Coal Company, LLC for wrongful termination, tortious interference, civil conspiracy, as well as negligent and intentional infliction of emotional distress in the Circuit Court of Boone County, West Virginia, Case No. 12-C-29. Anita McBride holds claims against Eastern Associated Coal, LLC and Patriot Coal Corporation for wrongful termination that occurred on or about February 26, Solon Briggs holds claims against Patriot Coal Corporation Speed Mining, LLC for wrongful termination that occurred on or about November 18,

3 Document Page 3 of 9 (h) (i) (j) (k) (l) (m) (n) (o) (p) Michael McKinney holds claims against Gateway Eagle Coal Company, LLC and Patriot Coal Corporation for personal injuries in the Circuit Court of Boone County, West Virginia, Case No. 15-C-52. James E. Perry holds claims against Patriot Coal Corporation for personal injuries in the Circuit Court of Boone County, West Virginia, Case No. 15-C- 50. Eric Pauley holds claims against Patriot Coal Corporation and Speed Mining, LLC in a negligence, deliberate intent, and workers compensation retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 15-C- 46. Charles A. Workman holds claims against Gateway Eagle Coal Company, LLC and Patriot Coal Corporation for negligence, deliberate intent, and workers compensation retaliation suffered on or about August 5, Steven and Kimberly White hold claims against Emerald Processing, LLC in a deliberate intent action in the Circuit Court of Boone County, West Virginia, Case No. 12-C-158. Wenden Shane Hager holds claims against Patriot Coal Corporation, Patriot Coal Holdings I LLC, Patriot Coal Holdings II LLC, Patriot Coal Sales LLC, Patriot Coal Services LLC, and Gateway Eagle Coal Company, LLC in an employment discrimination and retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 15-C-37. Brian Lee Cook holds claims against Patriot Coal Corporation, Patriot Coal Holdings I LLC, Patriot Coal Holdings II LLC, Patriot Coal Sales LLC, Patriot Coal Services LLC, and Gateway Eagle Coal Company, LLC in an employment discrimination and retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 15-C-36. Christopher Dawson holds claims against Patriot Coal Corporation and Brody Mining, LLC in an employment discrimination and retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 15-C-124. Derrick Workman holds claims against Patriot Coal Corporation and Brody Mining, LLC in an employment discrimination and retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 15-C-18. 3

4 Document Page 4 of 9 (q) (r) (s) (t) (u) (v) (w) (x) (y) (z) Edward Wayne Jeffrey holds claims against Brody Mining, LLC in an employment discrimination and retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 14-C-94. Albert Hoosier holds claims against Brody Mining, LLC in an employment discrimination and retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 13-C-22. Josh D. Chafin holds claims against Brody Mining, LLC in an employment discrimination and retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 12-C-244. Shane Barker holds claims against Patriot Coal Corporation and Brody Mining, LLC in an employment discrimination and retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 14-C-162. Shawn Lowry holds claims against Patriot Coal Corporation and Brody Mining, LLC in an employment discrimination and retaliation action in the Circuit Court of Boone County, West Virginia, Case No. 14-C-218. Stephen Graham and Emilie Graham hold claims against Speed Mining, LLC and Patriot Coal Corporation for deliberate intent, negligence and loss of consortium for personal injuries Stephen Graham sustained on the job on or about April 15, Bobby L. Dixon, II, has a filed claim for employment discrimination pending in the Circuit Court of Boone County, West Virginia, Civil Action No. 14-C- 86 (complaint attached) against Gateway Eagle Coal Company, LLC, and Greg Dotson for a firing that occurred on February 24, Ernest Johnson has an unfiled claim for employment discrimination against Wildcat Energy, LLC, for a firing that occurred on March 22, Mark Roles has an unfiled claim for employment discrimination against Emerald Processing, LLC, for a firing that occurred on January 21, Kenneth Bevins and Victoria Bevins have claims against Apogee Coal Company, LLC for intentional exposure to injury, unsafe working conditions, and compensatory, general and punitive damages for an injury sustained on October 8, 2012, which claims were pending in a civil action in the Circuit Court of Kanawha County, WV, Civil Action No. 13-C-708 and removed to the US District Court for the Southern District of West Virginia, Civil Action No. 2: , and are currently pending in an appeal action in the US Court of Appeals, Fourth Circuit, Civil Action No

5 Document Page 5 of 9 (aa) (bb) (cc) (dd) (ee) (ff) (gg) (hh) (ii) Roger D. Horton and Susan Horton have claims against Komatsu America Corp., Rish Equipment Company and Apogee Coal Company, LLC for intentional exposure to injury, unsafe working conditions, and compensatory, general and punitive damages for an injury sustained on February 10, 2013 which claims are currently pending in a civil action in the Circuit Court of Logan County, WV, Civil Action No. 15-C-27. Nathan Vance has an unfiled claim against Remington LLC, d/b/a Winchester Mine and Patriot Coal Services, LLC for worker s compensation discrimination as a result of a failure to return him to work after release from a compensable work related injury. Marty Deck has an unfiled claim against Gateway Eagle Coal Company, LLC and Patriot Coal Services, LLC for injury sustained on November 13, Jason Darrell Cozart has claims against Rhino Eastern LLC and Patriot Coal Corporation for age discrimination, civil conspiracy/fraud, and retaliatory discharge during his employment from 2010 to December 2014, which claims are pending in a civil action in the Circuit Court of Raleigh County, West Virginia, Civil Action No. 15-C-435-K. Jarrod Mullins has claims against Pine Ridge Coal Company, LLC, Green Leaf Services of Beckley, LLC, and Johnny Bowyer, for deliberate intent, negligence/breach of duty for personal injury sustained on October 14, 2011, which claims are pending in a civil action in the Circuit Court of Raleigh County, West Virginia, Civil Action No. 13-C-815-B. Steve J. Pauley has claims against Rhino Eastern LLC and Patriot Coal Corporation for age discrimination, civil conspiracy/fraud, and retaliatory discharge during his employment from 2011 to December 2014, which claims are pending in a civil action in the Circuit Court of Raleigh County, West Virginia, Civil Action No. 15-C-436-H. Jimmy E. Walkup has claims against Patriot Coal Corporation and Brody Mining, LLC, for retaliatory discharge and age discrimination during his employment from 2007 to June 2014, which claims are pending in a civil action in the Circuit Court of Boone County, West Virginia, Civil Action No. 15-C-49. Robert Hyde, III and LeAnne Hyde have claims against Eastern Associated Coal, LLC and Patriot Coal Holdings, LLC for intentional exposure to injury, negligence, unsafe working conditions, and compensatory, general and punitive damages for an injury sustained on February 22, 2014, which claims are pending. Dallas Lesher has an unfiled claim against Speed Mining, LLC and Patriot Coal Corporation for being wrongfully terminated on 1/28/15. 5

6 Document Page 6 of 9 (jj) (kk) (ll) Roger Spence has an unfiled claim against Eastern Associated Coal, LLC and Patriot Coal Corporation for employment discrimination which occurred from 7/8/14 and ran through his 10/3/14 termination. Anita McBride has an unfiled claim against Eastern Associated Coal, LLC and Patriot Coal Corporation for being wrongfully terminated on 2/24/15, gender discrimination, and disability discrimination. Scott Thompson has an unfiled claim against Gateway Eagle Coal Company, LLC, Brody Mining, LLC and Patriot Coal Corporation for wrongful termination that occurred in December of (collectively, Claimants ). 4. On the Petition Date, the Claimants were automatically stayed under 11 U.S.C. 362(a) (the Automatic Stay ) from commencing or continuing an action to seek recovery for alleged property damage or injury to the claimants. 5. The parties to the Stipulation have agreed to modify the Automatic Stay solely on the terms and conditions set forth herein. 6. The automatic stay under 11 U.S.C. 362 is hereby modified solely to the limited extent necessary to enable and allow the Claimants (a) to proceed to a final judgment or settlement of their claims and (b) to attempt to recover any liquidated final judgment or settlement on the claims solely from and under the terms of Available Coverage. For Claimants who have not yet initiated civil actions by filing a complaint, the relief granted herein shall include the filing of a complaint and service of any necessary summonses upon the applicable Debtors solely for the purpose of seeking Available Coverage. 7. It is expressly understood by the Claimants that (a) the automatic stay under 11 U.S.C. 362 is hereby modified solely with respect to the specific claims of the Claimants identified herein, (b) the Claimants may seek satisfaction of the claims only as set forth herein, and that in no event will the Debtors, their estates or any other Debtor Defendant be liable to the Claimants in any other way whatsoever with respect to the Claims, and (c) the Claimants may 6

7 Document Page 7 of 9 not seek, and the automatic stay is not modified for the purposes of, payment of any costs of defending any of Claimants civil actions, including attorneys fees, by the Debtors. 8. The Claimants agree that they shall not file or pursue any further claims, if any, against the Debtors or any of the Debtors property (excluding Available Coverage), and further agree that any recovery in the underlying civil actions shall be limited to the proceeds available from (a) any and all insurance policies, to the extent applicable, maintained by or available to the Debtors; and (b) any recoveries available from the Debtors co-defendants. 9. The proofs of claim filed by the Claimants, if any, shall be permanently expunged, and the Debtors notice and claims agent is hereby authorized to withdraw and expunge any proofs of claim that have been or may be filed by the claimants, their heirs, or their successors and assigns, from the claims register maintained in the Debtors chapter 11 cases. 10. The modification of the Automatic Stay as set forth herein shall have no effect as to parties that are not a party to this Agreed Order, including for the avoidance of doubt the Debtors insurance providers, and the automatic stay shall remain in full force and effect with respect to such parties and their claims or causes of action, if any, against the Debtors and their estates. 11. Nothing in this Agreed Order is intended to bind any non-debtor defendant nor shall it be deemed to waive or release any claim against any non-debtor defendant in any of claimants civil actions (filed or yet-to-be filed). 12. The Debtors hereby reserve any and all rights and defenses with respect to the allegations and claims asserted against the Debtors. 7

8 Document Page 8 of This Stipulation may be filed in any Court of competent jurisdiction as evidence that the automatic stay in the above-styled bankruptcy has been modified for cause under 11 U.S.C This Stipulation may be signed in counterpart originals and delivered by facsimile, which, when fully executed, shall constitute a single original. 15. Each of the undersigned counsel represents that he/she is authorized to execute this Stipulation on behalf of his/her respective client(s). 16. This Stipulation is effective upon submission to the Court without further order of Court and shall not be modified, altered, amended or vacated without written consent of all parties hereto, subject to Court approval. THIS STIPULATION IS SO ORDERED: Oct Dated: Richmond, Virginia /s/ Keith L. Phillips UNITED STATES BANKRUPTCY JUDGE Entered on Docket: Oct

9 Document Page 9 of 9 WE ASK FOR THIS: /s/ Michael A. Condyles /s/ Bruce W. White Michael A. Condyles (VA 27807) Bruce W. White (VA 23294) Peter J. Barrett (VA 46179) 8550 Mayland Drive, Suite 206 Jeremy S. Williams (VA 77469) Richmond, Virginia KUTAK ROCK LLP Telephone: (804) Bank of America Center 1111 East Main Street, Suite 800 -and- Richmond, Virginia Telephone: (804) Facsimile: (804) Spencer D. Elliott (admitted pro hac vice) LEWIS, GLASSER, CASEY, & ROLLINS, PLLC - and Summers Street, Suite 700 P.O. Box 1746 Stephen E. Hessler (admitted pro hac vice) Charleston, West Virginia Patrick Evans (admitted pro hac vice) Telephone: (304) KIRKLAND & ELLIS LLP Facsimile: (304) Lexington Avenue New York, New York Telephone: (212) Facsimile: (212) Counsel for the Claimants - and - James H. M. Sprayregen, P.C Ross M. Kwasteniet (admitted pro hac vice) Justin R. Bernbrock (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, Illinois Telephone: (312) Facsimile: (312) Counsel for the Debtors and Debtors in Possession 9