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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 91-3135

TRANSCONTINENTAL GAS
PIPELINE CORPORATION,
Plaintiff-Appellee,
versus
TRANSPORTATION INSURANCE
COMPANY,
Intervenor-Appellant,
and
LLOYDS, LONDON, and NORTHERN
ASSURANCE COMPANY, LTD., ET AL.,

Defendants-Appellants.
- - - - - - - - - - - - -
Appeals from the United States District Court
for the Middle District of Louisiana
- - - - - - - - - - - - -
On Petition for Rehearing
and Suggestion for Rehearing En Banc
(Opinion February 20, 1992, 5th Cir., 1992, F.2d )
(April 3, 1992)
BEFORE REYNALDO G. GARZA, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM :

The Plaintiff-Appellee's Petition for Rehearing is

DENIED; and, as no member of this panel nor Judge in regular active
service on this court has requested that the court be polled on
rehearing en banc (Federal Rules of Appellate Procedure and Local
Rule 35), the Defendants-Appellants' suggestion for Rehearing En
Banc is DENIED.
I.
Defendants-Appellants, supported by amici curiae, beseech
us to withdraw our opinion and certify the issues of this case to
the Supreme Court of Louisiana. Certification to State Supreme
Courts is a valuable resource of this court, so we dare not abuse
it by over use lest we wear out our welcome. As noted in the panel
opinion in this case, when we sit in diversity or as an OCSLA
court, it is our "duty" to decide the case as would an intermediate
appellate court of the state in question if, as here, the highest
court of the state has not spoken on the issue or issues presented.
Certification is not a panacea for resolution of those complex or
difficult state law questions which have not been answered by the
highest court of the state. Neither is it to be used as a
convenient way to duck our responsibility in OCSLA or diversity
jurisdiction. Here, Defendants-Appellants asked both the district
court and this court to certify, but neither court was inclined to
do so. Upon re-examination in light of the entreaties as set forth
in the Suggestion for Rehearing En Banc, we remain disinclined to
certify in this case.
II.
2

Transco, in its Petition for Rehearing, concurs in the panel's
determination that in the Louisiana Oil Field Anti-Indemnity Act,1
the legislature intended to prohibit indemnification if, but only
if, the agreement containing the indemfication or waiver
subrogation agreements pertains to a well. Transco takes
exception, however, with the discussion in our panel opinion to the
extent it prescribes a fact intensive analysis in natural gas
pipeline cases to determine whether the agreement in question
relates to a particular well or wells. Transco asserts that in
doing so we depart from the conclusion that the Act applies if the
agreement pertains to a well, insisting that we shifted our focus
from the agreement to the gas being transported. The thrust of
Transco's objection is that if we look only to the agreement--here
one for painting a natural gas pipeline--rather than to the nature
and origin of the gas being transported in the pipeline to be
painted, or its location either in or out of the "oil field,"2 it
would be simple for this or any other court to determine whether
the agreement "pertains to a well" or pertains to something else,
e.g., the painting of a pipeline. In the same vein, Transco
expresses concern that our non-exclusive list of ten factors to be
considered in efforts to determine whether or not an agreement is
covered by the Act, could lead to confusion.
1
La. Rev. Stat. Ann. � 9:2780 (West 1991), hereafter the
Act.
2
Rodrigue v. LeGros, 563 So.2d 248, 254 (La. 1990).
3

Specifically, Transco takes umbrage with our reference to
geographical location--this despite the Louisiana Supreme Court's
reference in Rodrigue v. LeGros,3 to "oilfields"--and also with
those factors which focus on the functional nature and special
relationship of facilities (such as pipelines) vis a vis gas wells.
Transco also insists that the Act does not have per se application
to contracts involving pipelines--a truism clearly recognized in
our panel opinion.
Transco, in its efforts to narrow the coverage of the
Act, makes the same error of simplicity that its opponents make
when they seek to broaden the coverage of the Act by arguing, just
as simplistically, that inasmuch as all gas comes from wells any
transportation of gas must pertain to wells and therefore any
agreement affecting a gas pipeline must be covered. By insisting
that we ignore the facts identified in our opinion, Transco would
have us put on blinders and inspect the agreement and its object
completely out of context. That way, Transco's argument must go,
the Act is not applicable here because a pipeline is not a well so
that an agreement for painting a pipeline can have nothing to do
with exploration, development, production, or transportation of
oil, gas or water. Transco's argument, when reduced to its
essentials, is proposing that we interpret the Act as containing a
per se rule that it cannot be applicable to a pipeline--the
converse of its earlier insistence (as acknowledged in our panel
3
Id. at 254.
4

opinion) that the Act cannot be read as being applicable per se to
all pipelines.
The truth lies between the positions of Transco on the
one hand the Defendants-Appellants on the other: the Act is
neither applicable per se to all pipelines nor inapplicable per se
to all pipelines. What Transco appears unwilling to accept is the
effect of Subsection C of the Act which defines the meaning of
agreement as it pertains to a well for oil, gas or water, etc.
While not as broad as contended by Defendants-Appellants,
Subsections C's definition is considerably broader than advocated
by Transco. The Act defines agreement, as it pertains to a well,
to include "any agreement . . . concerning any operations related
to . . . transportation of oil, gas or water . . . including but
not limited to . . . rendering services in connection with any
. . . structure intended for use in the exploration for or
production of any mineral, or an agreement to perform any portion
of any such work or services or any act collateral thereto,
including . . . incidental transportation . . . ."4
Thus, from the quoted portion of the Acts' definitional
provisions, this court remains satisfied that the methodology
described in the panel opinion for this case should not be
withdrawn in favor of the simplistic analysis advocated by Transco
or the equally simplistic one advocated by Defendants and amici.
4
La. Rev. Stat. Ann. � 9:2780(C) (West 1991) (Emphasis
Added).
5

And, as we are equally unwilling to withdraw the panel opinion in
order to certify the question to the Supreme Court of Louisiana,
the panel adheres.
6