IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30294

JAMES STANFIELD

Plaintiff

v.

ISLAND OPERATING COMPANY, INC; ET AL

Defendants

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OMEGA NATCHIQ, INC

Third-Party Plaintiff - 

Cross Defendant- Appellant

v.

TRAVELERS INSURANCE, CO.

Third-Party Defendant -

Cross Claimant-Appellee

Appeal from the United States District Court for the Eastern District of

Louisiana, Civil Action No. 06-2323

Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.

United States Court of Appeals

Fifth Circuit

F I L E D

January 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-30294

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

2

PER CURIAM:*

This suit presents an appeal from a district court order requiring a

construction contractor to indemnify the insurer of a company owning offshore

wells and platforms for the costs of defending the company against a suit

brought by one of the contractor’s employees. For the following reasons, we

AFFIRM.

I

Merit Energy Company contracted with Appellant, Omega Natchiq, Inc.,

to perform construction repairs on Merit’s platforms in the Gulf of Mexico. Their

relationship was governed by a Master Service Agreement in which Omega

agreed to “fully and unconditionally release, protect, defend, indemnify, and hold

harmless the indemnified Merit Parties and their respective insurers” from any

claims of illness, injury, or death of any Omega employees arising out of the

contract work. 

An Omega employee, James Stanfield, in the course of his work under the

contract, allegedly sustained injuries when he struck a pole on the platform deck

while being transferred from a vessel to the platform by way of a personnel

basket suspended from a crane. Stanfield sued Merit. Merit moved for and was

granted summary judgment, the district court finding that Merit was neither

vicariously nor directly liable for Stanfield’s alleged injuries. 

Merit’s cost of defense, $62,438.86, was borne by Merit’s insurer, Appellee

Travelers Insurance. Merit, at the outset of the suit, demanded that Omega

provide for its defense pursuant to the Master Service Agreement. Omega,
No. 08-30294

1 LA. REV. STAT. ANN. § 9:2780 (2005).

2 Meloy v. Conoco, Inc., 504 So.2d 833, 838–39 (La. 1987) (“Therefore, we conclude that

LA.R.S. 9:2780 nullifies completely any provision in any agreement that requires defense

and/or indemnification where there is any negligence or fault on the part of the indemnitee.”).

3

Id. at 839 (“If it is established at trial that there is no ‘negligence or fault (strict

liability) on the part of the indemnitee,’ the Act does not prohibit indemnification for cost of

defense.”).

4 See Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007).

5 See LA.CIV.CODE ANN. art. 1794 (“An obligation is solidary for the obligors when each

obligor is liable for the whole performance. A performance rendered by one of the solidary

obligors relieves the others of liability toward the obligee.”); LA. CIV. CODE ANN. art. 1804

(“Among solidary obligors, each is liable for his virile portion. If the obligation arises from a

contract or quasi-contract, virile portions are equal in the absence of agreement or judgment

to the contrary. . . .”).

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however, refused, pointing to the Louisiana Oilfield Anti-Indemnity Act.1 Courts

have interpreted the Act to prohibit a well owner from demanding indemnity

from a contractor if there is any negligence or fault on the part of the owner.2

Accordingly, Travelers, as Merit’s primary insurer, shouldered the cost of

defense. After summary judgment was entered finding Merit faultless,

Travelers sought indemnity from Omega.3 The district court granted Travelers’

summary judgment motion, awarding the $62,438.86 in defense costs. Omega

appeals and we review de novo.

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II

Omega contends on appeal, as it did at the district court, that despite the

indemnity clause in the Master Services Agreement, Omega and Merit’s insurer,

Travelers, were solidary obligors under Louisiana law, each liable to pay Merit’s

defense in its entirety, but between themselves each liable for one-half.5 The

district court disagreed, finding that Omega and Travelers were not solidary

obligors because their obligations differed: 

Travelers’ obligation and duty to its insured is broad. It is to

pay for the defense of its insured on the main demand . . . . On

the other hand, Omega’s obligation is much narrower. Omega
No. 08-30294

6 Stanfield v. Island Operating Co., No. 06-2323, 2007 WL 3408285, at *3 (E.D. La.

2007).

7 We have interpreted the Outer ContinentalShelfLands Act, 43 U.S.C. § 1333(a)(2)(A),

to provide for the assimilationof state law—here the Louisiana Oilfield Anti-Indemnity Act—to

OCSLA cases when three factors are met: “(1) The controversy must arise on a situs covered

by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached

thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not

be inconsistent with Federal law.” Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1523 (5th Cir.

1996) (citing Union Tex. Petroleum Corp v. PLT Eng’g, 895 F.2d 1043, 1047 (5th Cir. 1990).

In Hodgen, a case presenting similar facts to those present here, we found the factors satisfied:

there was a contract for the operation and maintenance of a fixed platform, a contract

employee was injured when swinging from the platform to a vessel, and the Louisiana Oilfield

Indemnity Act was found not inconsistent with federal law. Hodgen, 87 F.3d at 1527–29. 

8 Great Southwest Fire Ins. Co. v. CNA Ins. Co., 557 So.2d 966, 968 (La.1990); Hobbs

v. Teledyne Movible Offshore, Inc., 632 F.2d 1238, 1241–42 (5th Cir. 1980).

9 Tufaro v. Stanley Bishop Real Estate, Inc., 422 So.2d 220, 221–22 (La. App. 4th Cir.

1982); Fremin v. Collins, 194 So.2d 470, 473–74 (La. App. 4th Cir. 1967).

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is to pay the indemnitee’s defense costs if and only if, a finding

is made that the indemnitee is free from fault.6

Because of this timing difference as to when the obligations of Omega and

Travelers arose, the district court found that they were not solidary obligors;

that on paying Merit’s cost of defense, Travelers became subrogated to the rights

of Merit, and under the Master Services Agreement entitled to recover from

Omega the full costs of defending Merit.

We review the district court’s application of Louisiana law, without

considering whether general maritime law applies, because this case involves

analysis of a contract regarding repair work on an fixed structure and because

the parties do not contend that maritime law applies.7 We hesitate to adopt the

district court’s reasoning for finding Omega and Travelers were not solidarily

obligated to pay Merit’s defense. Louisiana law is less clear on the matter than

the district court order found. There are decisions from Louisiana appellate

courts holding that separate insurers, liable to the same insured and for the

same coverage, are8 and are not9solidary obligors. And, in Louisiana “an
No. 08-30294

10 LA. CIV. CODE ANN. art. 1798.

11 See S. Litivinoff, The Law of Obligations § 7.69 in 5 LOUISIANA CIVIL LAW TREATISE

(2d ed. 2001). These principles may have been at play in Great Southwest Fire, 557 So.2d at

966–69, where the Louisiana Supreme Court held that an insured's primary liability insurer

and its excess liability insurer were solidarily obligated for the portion of a judgment against

the insured that was in excess of the primary policy and that was caused by the primary

insurer's bad faith failure to settle. The primary insurer's liability for the excess portion of the

judgment did not arise until it was found to be the cause of the excess liability, yet the court

nevertheless found both insurers solidarily obligated for the excess portion. Id.

12 See Great Southwest Fire, 557 So.2d at 969; Litivinoff, supra note 11, § 7.78.

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obligation may be solidary though for one of the obligors it is subject to a

condition or term.”10 Put plainly, the fact that an obligation may not be enforced

against one obligor until a condition is fulfilled does not necessarily preclude

solidarity between it and another obligor which is immediately liable.11

But we need not resolve whether Omega and Travelers were solidary

obligors to decide this case. By the clear language of the Master Services

Agreement, Omega is liable for Merit’s defense costs whether or not Omega and

Travelers are solidary obligors. If Omega and Travelers are solidary obligors,

virile apportionment is merely a presumption and parties may agree to

apportion liability differently.12 That is the case here, as Omega agreed to

“unconditionally release, protect, defend, indemnify, and hold harmless” Merit’s

insurers in precisely the situation presented. If, on the other hand, Omega and

Travelers are not solidary obligors, Travelers, after paying for Merit’s legal

defense, became conventionally subrogated to Merit’s right to enforce the
No. 08-30294

13 See LA.CIV.CODE ANN. art. 1827 (“An obligee who receives performance from a third

person may subrogate that person to the rights of the obligee, even without the obligor's

consent.”); A. Copeland Enters., Inc. v. Slidell Mem’l Hosp., 657 So.2d 1292, 1297–98 (La.

1995); Cont’l Cas. Co. v. Canadian Universal Ins. Co., 605 F.2d 1340, 1344–45 (5th Cir. 1979)

(“[Subrogation] applies whether the parties are primary or, as here, secondary obligors, and

to suretyship situations. Therefore, if Continental Casualty discharged the duty owed by

Canadian to Continental Diving . . . then Continental Casualty is subrogated to the rights of

Continental Diving.”) (internal citation omitted).

6

indemnity clause in the Master Services Agreement.13 Either way, Omega must

honor its contractual obligation to indemnify Merit’s insurer. AFFIRMED.