### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 1 9

- 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 :1 7

- 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 nat ural gas pipeline. During the work, a n explosion injured two workers. Those workers

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 24, 2019

Lyle W. Cayce Clerk Case: 19-30182 Document: 00515173113 Page: 1 Date Filed: 10/24/2019No. 19

- 30182

2 sued Phillips 66. Believing that its Agreement with Blanchard indemnified them from the workers’ claims , Phil l ips 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 T he 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 A greement. 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 t he LAIA

. That is not true. The LAIA v oids indemnity and insurance provisions in “construction contracts.” L A

. R EV

. S TAT

. § 9: 278 0.1. 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 .” L A

. R EV

. S TAT

. § 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 rea l 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 Louisian a 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 Specialt y Insurance Company and Excess Underwriters Subscribing Severally To Policy Number TMU

– 407387 as “Atlantic.” Case: 19-30182 Document: 00515173113 Page: 2 Date Filed: 10/24/2019No. 19

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3 relevant here, the “commingled” exception only applies to “ gas gatheri ng lines.” L A

. R EV

. S TAT

. § 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 t he 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 Sec tion 13 well pad”); Warren Energy Resources, Inc. v. Louisiana Tax Comm ’n , 825 S o. 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 Lou i siana 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 Ga s Gathering Lines ” (April 2000). Against this backdrop of consistent usage, Phillips 66 offers no alternative definition. Cf. A NTONIN S CALIA & B RYAN A. G ARNER , R EADING L AW § 54. And i t is undisputed that the Phillips 66 pipeline does not travel from a eith er 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, Phi l lips 66 argues that this interpretation of the LAIA runs afoul of another Louisiana statute

— the Louisiana Oilfield Anti

- Indemnity Act (“ LOAIA ”). L A

. R EV

. S TAT

. § 9:2780. The LAIA specifically requires that courts consider the LOAIA and ensure that they do not “add to” or “subtract from” its provisions

. L A

. R EV

. S TAT

. § 9:2780.1(E). But LOAIA is inapplicable. That statute , by its own terms, applies only to “agreements pertaining to wells.” L A

. R EV

. S TAT

. § 9:2780; see Johnson v. Amoco Prod. Co. , 5 F.3d 949, 954 (5th Cir. Case: 19-30182 Document: 00515173113 Page: 3 Date Filed: 10/24/2019No. 19

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4 1993). A na tural 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 g as is commingled

— sourced “ from multiple different offshore production and gathering facilities”

— to another processing plant. Notably, Phil l ips 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 . I t just does not apply. Fourth, Phillips 66 argues that Atlan tic 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 “a dditional 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 ha d 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 “ex traneous evidence .” It did not. T he court considered the record, evaluated the statutes, and consulted the relevant legal authorities. We have done the same and see no error. AFF IRMED. Case: 19-30182 Document: 00515173113 Page: 4 Date Filed: 10/24/2019