1 United States Court of Appeals,

Fifth Circuit.

No. 94-41244.

Jerry B. HODGEN; Bobby Sue Hodgen, Plaintiffs,

v.

FOREST OIL CORPORATION, et al., Defendants,

FOREST OIL CORPORATION; Ronald J. Doucet, Defendants-Third Party

Plaintiffs -Intervenor Defendants-Cross Claim Plaintiffs-AppellantsCross-Appellees,

Forest Oil Corporation, in its capacity as platform owner;

Ronald J. Doucet, Defendants-Third Party Plaintiffs-Intervenor

Defendants-Cross Claim Plaintiffs-Appellants-Cross Appellees,

v.

A & A BOATS INC.; C & G Marine Service Inc., Defendants-Third

Party Plaintiffs-Intervenor Defendants-Cross Cl aim DefendantsAppellees-Cross Appellants,

v.

OPERATORS & CONSULTING SERVICES INC., Third Party Defendant-Cross

Claim Defendant-Appellee,

Chancellor Insurance Company; Yorkshire Insurance Company

Limited; Cornhill Insurance PLC; Allianz International Insurance

Company Limited ; Ocean Marine Insurance Company Limited, Third

Party Defendants-Appellees,

ALBANY INSURANCE CO., Third Party Defendant-Third Party

Plaintiff-Appellant,

v.

AETNA CASUALTY & SURETY CO., Intervenor Plaintiff-Third Party

Defendant-Appellee.

June 25, 1997.

Appea ls from the United States District Court for the Western

District of Louisiana.

B efore POLITZ, Chief Judge, and HIGGINBOTHAM and SMITH, Cir cuit

Judges.2

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In a prior opinion, this panel affirmed the district court's

j udgment in part and certified remaining issues to the Louisiana

Supreme Court. See Hodgen v. Forest Oil Corp., 87 F.3d 1512 (5th

Cir.1996). The Louisiana Supreme Court declined certification.

The parties subsequently settled al l but one of the certified

issues. We now decide this last issue and hold that the Louisiana

Oilfield Inde mnity Act of 1981 ("LOIA"), La.Rev.Stat. Ann. §

9:2780, prevents an oil company from receiving indemnification for

its defense costs as a platform owner if it commits negligence as

time charterer of a vessel.

I.

We briefly recite the relevant facts, which are set out in

full in our earlier opinion. Forest Oil contracted with Operators

and Consulting Services ("OCS") for work on an off-sh ore oil

platform. The contract provided that OCS would indemnify Forest

"from and against any and all claims, demands, judgments, defense

costs, or suits ... by ... any employees ... of Contractor," even

if Forest was at fault. Jerry Hodgen, an OCS employee, suffered a

spinal injury when he attempted a swing-rope transfer in rough seas

from a platform owned by Forest to a vessel that Forest chartered

on a non-demise basis. The district court found that Hodgen's suit

stated claims against Forest both in its capacity as platform owner

and in its capacity as time charterer of the vessel. The court

found Forest negligent in its cap acity as time charterer but

faultless in its capacity as platform owner.1 The relevant portions of § 2780 read as follows:

A. The legislature finds that an inequity is foisted

on certain contractors and their employees by the defense

or indemnity provisions, either or bot h, contained in

3 Forest subsequently filed a third-party complaint against OCS

and a group of five underwriters. Invoking the broad

indemnification clause in t he Master Service Agreement, Forest

demanded that OCS and five underwriters pay the costs incurred in

its defense in its capacity as platform owner.

The district court, however, found that Louisiana law prevents

enforcement of the indemnity clause because Forest was at fault in

its capacity as time charterer. "Regardless of whether Forest can

be at fault in two different capacities for the purposes of

plaintiff's tort claims against it," the court reasoned, "the fact

remains that Forest is one entity, and t he Court has made a

judicial determination that this one entity was at fault in causing

plaint iff's injuries." H odgen v. Forest Oil Corp., 862 F.Supp.

1567, 1571 (W.D.La. 1994), a ff'd in part, 87 F.3d 1512 (5th

Cir.1996).

II.

Louisiana protects oilfield contractors from oil companies

wh o press for master service contracts requiring contractors to

provide indemnification even when the oil company is at fault.

Under the LOIA, such indemnification agreements are void "to the

extent that they purport to require indemnification and/or defense

where there is negligence or fault on the part of the indemnitee."

Meloy v. Conoco, Inc., 504 So.2d 833, 838 (La.198 7). 1 Thes ome agreements pertaining to wells for oil, gas, o r water, or drilling for minerals which occur in a solid,

liquid, gaseous, or other state, to the extent those

provisions apply to death or bodily injury to persons.

It is the intent of the legislature by this Section to

dec lare null and void and against public policy of the

state of Louisiana any provision in any agreement which

requires defense and/or indemnification, for death or bodily injury to persons, where there is negl igence or

fault (strict liability) on the part of the indemnitee,

or an agent or employee of the indemnitee, or an independent contractor who is directly responsible to the

indemnitee.

B. Any provision contained in, collater al to, or

affecting an agreement pertaining to a well for oil, gas,

or water, or drilling for minerals which occur in a

solid, liquid, gaseous, or other state, is void and

unenforceable to the extent that it purports to or does

provide for defense or indemnity, or either, to the

indemnitee against loss or liability for damages arising

out of or resulting from death or bodily injury to

persons, which is caused by or results from the sole or

concurrent negligence or fault (strict liability) of the

ind emnitee, or an agent, employee, or an independent

contractor who is directly responsible to the indemnitee.

4 legislation "arose out of a concern about the unequal bar gaining

power of oil companies and contractors and was an attempt to avoid

adhesionary contracts under which contractors would have no choice

but to agree to indemnify the oil com pany, lest they risk losing

the contract." F ontenot v. Chevron U.S.A., Inc., 676 So.2d 557,

563 (La.1996).

But "[a]n agreement providing for cost of defense in the

event of a meritless suit against the indemnitee is outside the

scope of the Act." Meloy, 504 So.2d at 839. Forest argues that

because the district court found that Hodgen's suit against it in

i ts capacity as platform owner did not have merit, it shou ld be

able to collect the costs of defending itself in that capacity.5

The insurers, on the other hand, urge us to deny indemnification

for Forest's defense costs as platform o wner because Forest was

found negligent in its capacity as time charterer.

Entities in oil exploration often wear several hats, and the

law reflects the different capacities in which a company operates

when assigning rights and responsibilities attending these

capacities. In this case, Hodgen's suit against Forest sounded in

two different bodies of law. The Outer Continental Shelf Lands

Act, 43 U.S.C. §§ 1301-56, dictated which law would apply to

Hodgen's claims. As against Forest in its capacity as platform

owner, Hodgen proceed ed under 43 U.S.C. § 1333(a)(2)(A), which

incorporates state negligence principles. As against Forest in its

capacity as time charterer, Hodgen procee ded under the Longshore

Workers' Compensation Act, 33 U.S.C. §§ 902 (21), 905(b-c), made

available by 43 U.S.C. § 1333(b).

The LOIA, however, does not speak in terms of an oil company's

capacities, it speaks in ter ms of contracting entities, the oil

contractor and the indemnitee. Louisiana strives to protect

c ontractors from oil companies that want contractors to bear the

risks that accompany their own negligence. The language of the

statute, as the Louisiana courts have noted, gives it "the broadest

possible meaning," and "does not draw distinctions based on the net

worth or ownership of the contracting parties or the type of

contract involved." D aigle v. United States Fidelity & Guaranty

Ins. Co., 610 So.2d 883, 887 (La.App. 1st Cir.1992); s ee also St.

Amant v. Gles by-Marks Corp., 532 So.2d 963, 964 (La.App. 5th6

Cir.1988).

The strength with which Louisiana applies the LOIA to protect

c ontractors from indemnification was demonstrated in M eloy. The

Louisiana Supreme Court found that the Act only allowed

indemnification if the suit against the oil company was meritless.

Any fault by the oil company would render the cont ractual

indemnification p rovision null and void. Therefore, the supreme

court held that the LOIA prevented an oil company sued by a

contractor's employee from col l ecting a contribution from the

contract o r even if the contractor was concurrently negligent.

Meloy, 504 So.2d at 838.

As Meloy

made clear, a suit must be absolutely meritless for

an indemnification provision to survive. An oil company found one

percent at fault may not bring a claim against the contractor for

defense costs or damages even if the contractor was at fault. In

this case Forest was found 85% responsible for the accident, which

fault happened to be in its capacity as time charterer of the

vessel. It bears noting that Forest's liability as platform owner

a nd as time charterer both arose from the same incident. Hodgen

was injured while completing a swing rope transfer, and Forest's

negligence was found to be a cause of that accident.

In light of the protection that Meloy gives to contractors, we

find it unlikely that the Louisiana Supreme Court would allow a

company found 85% at fault to colle ct any of its defense costs,

even those incurred in defending a legal theory under which it was2 Some lower courts in Louisiana have rejecte d such "dual

capacity" arguments in the context of worker's compensation. See

White v. Naquin, 500 So.2d 436 (La.App. 1st Cir.1986)(disallowing

indemnification by a school board in its capacity as custodian

where the worker's compensation law s disallowed suits against a

school board as an employer); D eagracias v. Chandler, 551 So.2d 25

(La.App. 4th Cir.1989)(di sallowing a suit against an employer in

its capacit y as the manufacturer of the instrumentality by which

the employee was injured where employer was not liable under the

worker's compensation laws).

7 found not liable. 2 We therefore find that the LOIA precludes

Forest from collecting defens e costs incurred in its capacity as

platform owner.

III.

For the foregoing reasons, the portion of the district court's

judgment denying Forest Oil indemnification for its defense costs

as platform owner is AFFIRMED.

JERRY E. SMITH, Circuit Judge, dissenting:

I respectfully dissent. It is disappointing that the

Louisiana Supreme Court declined to entertain the certification, as

that court is in the best position to construe the statute at hand.

This is a close question, and the majority engages in quite a

respectable analysis, reaching a result that is not unreasonable.

The majority correctly observes that companies engaged in

offshore oil exploration operate in different capacities that are

governed by wholly differ ent bodies of law. I would treat the

different capacities as separate and distinct entities un der the

Oilfield Indemnity Act, as the purposes of the act are not served

by denying indemnification for Forest Oil's defense costs incurred

in its capaci ty as platform owner, a capacity in which it is8

indisputably free from fault.