IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-3135

TRANSCONTINENTAL GAS

PIPELINE CORPORATION,

Plaintiff-Appellee,

versus

TRANSPORTATION INSURANCE

COMPANY,

Intervenor-Appellant,

and

LLOYDS, LONDON, and NORTHERN

ASSURANCE COMPANY, LTD., ET AL.,

Defendants-Appellants.

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Appeals from the United States District Court

for the Middle District of Louisiana

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On Petition for Rehearing

and Suggestion for Rehearing En Banc

(Opinion February 20, 1992, 5th Cir., 1992, F.2d )

(April 3, 1992)

BEFORE REYNALDO G. GARZA, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM :

The Plaintiff-Appellee's Petition for Rehearing is2

DENIED; and, as no member of this panel nor Judge in regular active

service on this court has requested that the court be polled on

rehearing en banc (Federal Rules of Appellate Procedure and Local

Rule 35), the Defendants-Appellants' suggestion for Rehearing En

Banc is DENIED.

I.

Defendants-Appellants, supported by amici curiae, beseech

us to withdraw our opinion and certify the issues of this case to

the Supreme Court of Louisiana. Certification to State Supreme

Courts is a valuable resource of this court, so we dare not abuse

it by over use lest we wear out our welcome. As noted in the panel

opinion in this case, when we sit in diversity or as an OCSLA

court, it is our "duty" to decide the case as would an intermediate

appellate court of the state in question if, as here, the highest

court of the state has not spoken on the issue or issues presented.

Certification is not a panacea for resolution of those complex or

difficult state law questions which have not been answered by the

highest court of the state. Neither is it to be used as a

convenient way to duck our responsibili ty in OCSLA or diversity

jurisdiction. Here, Defendants-Appellants asked both the district

court and this court to certify, but neither court was inclined to

do so. Upon re-examination in light of the entreaties as set forth

in the Suggestion for Rehearing En Banc, we remain disinclined to

certify in this case.

II.1 La. Rev. Stat. Ann. § 9:2780 (West 1991), hereafter the

Act.

2 Rodrigue v. LeGros , 563 So.2d 248, 254 (La. 1990).

3 Transco, in its Petition for Rehearing, concurs in the panel's

determination that in the Louisiana Oil Field Anti-Indemnity Act, 1

the legislature intended to prohibit indemnification if, but only

if, the agreement containing the inde mfication or waiver

subrogation agreements pertains to a well

. Transco takes

exception, however, with the discussion in our panel opinion to the

extent it prescribes a fact intensive analysis in natural gas

pipeline cases to determine whether the agreement in question

relates to a particular well or wells. Transco asserts that in

doing so we depart from the conclusion that the Act applies if the

agreement pertains to a well, insisting that we shifted our focus

from the agreement to the gas be ing transported. The thrust of

Transco's objection is that if we look only to the agreement--here

one for painting a natural gas pipeline--rather than to the nature

and origin of the ga s being transported in the pipeline to be

painted, or its location either in or out of the "oil field," 2 it

would be simple for this or any other court to determine whether

the agreement "pertains to a well" or pertains to something else,

e.g., the painting of a pipeline. In the same vein, Transco

expresses concern that our non-exclusive list of ten factors to be

considered in efforts to determine whether or not an agreement is

covered by the Act, could lead to confusion.3 Id. at 254.

4

Specif ically, Transco takes umbrage with our reference to

geographical location--this despite the Louisiana Supreme Court's

reference in Rodrigue v. LeGros

, 3 to "oilfields"--and also with

those factors which focus on the functional nature and special

relationship of facilities (such as pipelines) vis a vis gas wells.

Transco also insists that the Act does not have per se application

to contracts invo lving pipelines--a truism clearly r ecognized in

our panel opinion.

Tr ansco, in its efforts to narrow the coverage of the

Act, makes the same error of simplicity that its opponents make

when they seek to broaden the coverage of the Act by arguing, just

as simplistically, that inasmuch as all gas comes from wells any

tra nsportation of gas must pertain to wells and therefore any

agreement affecting a gas pipeline must be covered. By insisting

that we ignore the facts identified in our opinion, Transco would

have us put on blinde rs and inspect the agreement and its object

completely out of context. That way, Transco's argument must go,

the Act is not applicable here because a pipeline is not a well so

t hat an agreement for painting a pipeline can have nothing to do

with exploration, development, production, or transportation of

oil, gas or water. Transco's argument, when reduced to its

essentials, is proposing that we interpret the Act as containing a

per se rule that it cannot be applicable to a pipeline--the

converse of its earlier insistence (as acknowledged in our panel4 La. Rev. Stat. Ann. § 9:2780(C) (West 1991) (Emphasis

Added).

5 opinion) that the Act cannot be read as being applicable per se to

all pipelines.

The truth lies between the positions of Transco on the

one hand the Defendants-Appellants on the other: the Act is

neither applicable per se to all pipelines nor inapplicable per se

to all pipelines. What Transco appears unwilling to accept is the

effect of Subsection C of the Act which defines the mea ning of

agreement as it pertains to a w ell for oil, gas or water, etc.

While no t as broad as contended by Defendants-Appellants,

Subsections C's definition is considerably broader than advocated

by Transco. The Act defines agreement, as it pertains to a well,

to include "any agreement . . . concerning any operations related

to

. . . transportation of oil, gas or wa ter . . . including but

not limited to . . . rendering s ervices in connection with any

. . . structure intended for use in the exploration for or

production of any mineral, or an agreement to perform any portion

of any such work or services or any act collateral thereto,

including

. . . incidental transportation . . . ." 4

Thus, from th e quoted portion of the Acts' definitional

provisions, this court remains s a tisfied that the methodology

described in the panel opinion for this case should not be

withdrawn in favor of the simplistic analysis advocated by Transco

or the equally simplistic one advocated by Defendants and amici.6

And, as we are equally unwilling to withdraw the panel opinion in

order to certify the question to the Supreme Court of Louisiana,

the panel adheres.