IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30182

Summary Calendar

ATLANTIC SPECIALTY INSURANCE COMPANY; EXCESS 

UNDERWRITERS SUBSCRIBING SEVERALLY TO POLICY NUMBER 

TMU - 407387,

Plaintiffs - Counter Defendants - Appellees,

v. 

PHILLIPS 66 COMPANY,

Defendant - Third Party Plaintiff - Counter Claimant – Appellant,

v. 

BLANCHARD CONTRACTORS, INCORPORATED,

Third Party Defendant – Appellee.

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:17-CV-9318

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.

PER CURIAM:*

Phillips 66 and Blanchard Contractors entered into a Master Services 

Agreement, which governed maintenance work on a Phillips 66 natural gas 

pipeline. During the work, an explosion injured two workers. Those workers 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 24, 2019

Lyle W. Cayce

Clerk

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No. 19-30182

2

sued Phillips 66. Believing that its Agreement with Blanchard indemnified 

them from the workers’ claims, Phillips 66 sought a declaratory judgment 

stating that the Agreement’s indemnification and insurance provisions were

valid. And, as a consequence, Phillips 66 also argued that Blanchard’s insurer, 

Atlantic, had a duty to defend them from the workers’ claims.1 The district 

court granted summary judgment in favor of Blanchard and Atlantic, holding 

that the Louisiana Anti-Indemnity Act (“LAIA”) invalidated the 

indemnification and insurance provisions of the Agreement. Our review is de 

novo. In re Louisiana Crawfish Producers, 852 F.3d 456, 462 (5th Cir. 2017).

Phillips 66 first argues that its agreement with Blanchard does not fall 

within the LAIA. That is not true. The LAIA voids indemnity and insurance 

provisions in “construction contracts.” LA. REV. STAT. § 9:2780.1. The statute 

defines “construction contracts” capaciously to include “any agreement for the 

. . . maintenance of a . . . structure . . . gas line, appurtenance or other 

improvement to real property.” LA. REV. STAT. § 9:2780.1(A)(2)(a). A natural 

gas pipeline is fairly encompassed in the “gas line” provision of the statute. But 

even assuming a “gas line” does not include “natural gas pipeline,” Phillips 

fails to show why a natural gas pipeline would not otherwise be a “structure” 

or “improvement to real property.” Cf. Black’s Law Dictionary (defining 

structure to include “any construction, or any production or piece of work 

artificially built up”); Guzzetta v. Tex. Pipe Line Co., 485 So.2d 508 (La. 1986) 

(analyzing who owned a pipeline based on Louisiana law applying to 

“improvements”). 

Second, Phillips 66 argues that its pipeline falls within an exception to 

the LAIA that applies to pipelines that transport “commingled” gas. But, as 

 

1 For simplicity, we refer to both Atlantic Specialty Insurance Company and Excess 

Underwriters Subscribing Severally To Policy Number TMU – 407387 as “Atlantic.”

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relevant here, the “commingled” exception only applies to “gas gathering lines.”

LA. REV. STAT. § 9:2780.1(A)(2)(b)(ii). A “gas gathering line” is a term of art 

that is not defined in the LAIA. But Louisiana courts have used the term in 

conjunction only with lines that run amongst wells or between production 

facilities and the first processing plant. See Spanish Lake Restoration, LLC v. 

Petrodome St Gabriel II, LLC, 186 So.3d 230, 232 (La. Ct. App. 2016) (noting 

the defendant “installed an aboveground pipeline in the form of a natural gas 

gathering line that runs from the Section 13 well pad”); Warren Energy 

Resources, Inc. v. Louisiana Tax Comm’n, 825 So.2d 572, 577 (La. Ct. App. 

2002) (stating gas gathering lines delivered “production . . . to one gas plant”);

cf. Magnolia Petroleum Co. v. Sandlin, 137 So. 595, 596 (La. Ct. App. 1931).

Moreover, the Louisiana courts’ usage comports with the definition adopted by 

the American Petroleum Institute (API) and the Federal Government. See 49 

C.F.R. §192.8; API Recommended Practice 80, “Guidelines for the Definition of 

Onshore Gas Gathering Lines” (April 2000). Against this backdrop of 

consistent usage, Phillips 66 offers no alternative definition. Cf. ANTONIN 

SCALIA & BRYAN A. GARNER, READING LAW § 54. And it is undisputed that the 

Phillips 66 pipeline does not travel from a either a well or production facility 

to an initial processing facility. Instead, the pipeline runs between processing 

facilities. Therefore, it is not a gathering line as that term is used in the 

statute.

Third, Phillips 66 argues that this interpretation of the LAIA runs afoul 

of another Louisiana statute—the Louisiana Oilfield Anti-Indemnity Act 

(“LOAIA”). LA. REV. STAT. § 9:2780. The LAIA specifically requires that courts 

consider the LOAIA and ensure that they do not “add to” or “subtract from” its 

provisions. LA. REV. STAT. § 9:2780.1(E). But LOAIA is inapplicable. That 

statute, by its own terms, applies only to “agreements pertaining to wells.” LA.

REV. STAT. § 9:2780; see Johnson v. Amoco Prod. Co., 5 F.3d 949, 954 (5th Cir. 

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1993). A natural gas pipeline does not pertain to a well when the gas has been 

so commingled that it “can no longer be identified with a particular well.”

Johnson, 5 F.3d at 954. Here, Phillips 66’s own evidence shows that its pipeline 

travels from a facility where gas is commingled— sourced “from multiple 

different offshore production and gathering facilities”—to another processing 

plant. Notably, Phillips 66 nowhere suggests that this commingled gas can “be 

identified with a particular well,” as required by LOAIA. Johnson, 5 F.3d at 

954. As a result, LOAIA has not been added to or subtracted from in our 

analysis. It just does not apply. 

Fourth, Phillips 66 argues that Atlantic owed a duty to defend it from 

the workers’ claims. In Louisiana, insurers only owe a duty to defend to their 

insured. See Meloy v. Conoco, 504 So.2d 833, 838 (La. 1987). Blanchard is 

insured by Atlantic. And Blanchard agreed to add Phillips 66 as an “additional 

insured.” But, as discussed above, that agreement is void under the LAIA.

Since there was no basis in law for Atlantic to cover Phillips 66 as an insured, 

Atlantic had no duty to defend them. Cf. Edwards v. Continental Cas. Co., 841 

F.3d 360, 363 (5th Cir. 2016) (stating that the duty to defend does not apply 

when a “petition unambiguously excludes coverage”). 

Finally, Phillips 66 claims that the district court erred by engaging in 

“factfinding” or looking at “extraneous evidence.” It did not. The court 

considered the record, evaluated the statutes, and consulted the relevant legal 

authorities. We have done the same and see no error. 

AFFIRMED.

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