# Ergon-West Virginia, Inc. v. Dynegy Marketing & Trade

> Court of Appeals for the Fifth Circuit · January 22, 2013 · 706 F.3d 419

URL: https://www.frixlaw.com/law-library/cases/9501991

## Case

- **Full name:** ERGON-WEST VIRGINIA, INCORPORATED, Plaintiff-Appellee Ergon Refining, Incorporated, Plaintiff-Cross Appellant v. DYNEGY MARKETING & TRADE, Defendant-Appellant Cross Appellee; Ergon Refining, Incorporated, Plaintiff-Cross Appellant v. Dynegy Marketing & Trade, Defendant-Appellant Cross Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 22, 2013
- **Citations:** 706 F.3d 419; 2013 WL 237567
- **Precedential status:** Published
- **Opinion:** Dissent by Reavley
- **Judges:** Reavley, Dennis, Clement
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9501991

## How later opinions describe it (automated extraction)

- explaining that unambiguous contracts are reviewed de novo-, a district court’s interpretation of an ambiguous contract that uses extrinsic evidence is reviewed for clear error
- explaining that unambiguous contracts are reviewed de novo; a district court’s interpretation of an ambiguous contract that uses extrinsic evidence is reviewed for clear error

## Opinion text

REAVLEY, Circuit Judge,
dissenting in part:
I would affirm the district court judgment. I concur with the judgment that, *427 due to the force majeure clause, Dynegy was not obligated to secure replacement gas for Ergon Refining. But the contract with Ergon-West Virginia required Dynegy to continue to supply the designated quantity of gas. Judgment, to be consistent with the contract, should compensate Ergon-West Virginia for the failure of that supply.
Dynegy’s obligation to Ergon-West Virginia was not to deliver a particular source of gas; it was to deliver a designated quantity. If the Dynegy could not deliver its supply because of Katrina and Rita, the force majeure clause would be material; but nothing prevented Dynegy from performing its contract since gas supply was available. Dynegy agrees that it was capable of transporting gas that it could have obtained for Ergon-West Virginia. Therefore, its contract required it to do so.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9501991. Public record. Not legal advice.