v.
Phillips
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-30182 October 24, 2019
Summary Calendar
Lyle W. Cayce
Clerk
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 19-30182 Document: 00515173113 Page: 2 Date Filed: 10/24/2019
No. 19-30182 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 For simplicity, we refer to both Atlantic Specialty Insurance Company and Excess Case: 19-30182 Document: 00515173113 Page: 3 Date Filed: 10/24/2019 Case: 19-30182 Document: 00515173113 Page: 4 Date Filed: 10/24/2019
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