UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30791 Summary Calendar

PHILLIPS PETROLEUM COMPANY,

Plaintiff-Appellant,

versus

PRODUCTION SYSTEMS, INC.; BUZZY P. INC.; WILLIAM LYNN KELLEY; KELLEY CONSULTING, INC.; PRODUCTION SERVICES GROUP/PRODUCTION SYSTEMS, INC.,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (00-CV-3010-R) _________________________________________________________________ November 29, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Claiming that the Louisiana Oilfield Indemnity Act (LOIA) does

not prohibit an agreement requiring Production Systems, Inc. (PSI),

to indemnify Phillips Petroleum, Inc. for its vicarious liability

resulting from the negligence of a joint employee of PSI and

Phillips, Phillips contests the summary judgment awarded PSI.

AFFIRMED.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

This action relates to a Phillips well. Under a temporary

labor agreement, PSI agreed to lease employees to Phillips. The

agreement contained the following indemnity provision:

[PSI] warrants that each leased employee shall fully comply with all laws, rules, regulations and/or ordinances of all governments and all agencies thereof while performing work for [Phillips] as a leased employee, and [PSI] shall indemnify and hold [Phillips] harmless from all costs, fines, penalties, expenses (including attorney’s fees), and damages that may directly or indirectly arise as a result of said leased employee’s failure or alleged failure to comply with any of same.

One of the leased employees, Kelly Lee, while operating

Phillips’ vessel, injured a third party. In an action separate

from this one, it was determined: that Lee was negligent in his

operation of the vessel, Barthelemy v. Phillips Petroleum Co., No.

96-2226,

, at *4 (E.D. La. 9 Feb. 1999), aff’d,

(5th Cir. 2000)(table); and that Phillips and PSI were

both vicariously liable for the actions of their joint employee,

Lee,

at *3 n.9, *6.

Phillips brought this action, claiming that, under the above

quoted portion of the temporary labor agreement, PSI was obligated

to indemnify Phillips for Lee’s negligence. On cross-motions for

summary judgment and PSI’s was granted, on the basis that the LOIA

prohibited Phillips from requiring that PSI indemnify it for the

negligence of Lee, a Phillips employee.

2 II.

A summary judgment is reviewed de novo, applying the identical

standard used by the district court. E.g., Stewart v. Murphy,

(5th Cir.), cert. denied,

(1999). Such

judgment should be granted if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” FED. R. CIV. P. 56(c). “We view the pleadings

and summary judgment evidence in the light most favorable to the

nonmovant.” Stewart,

.

We must determine whether, under Louisiana Law, Phillips may

enforce the indemnity provision against PSI where Phillips, as a

joint employer, is vicariously liable for Lee’s negligence. Along

this line, the purpose of the LOIA is “to protect Louisiana

oilfield contractors from over[-]reaching principals who force the

contractors through indemnity agreements to bear the risk of the

principal’s negligence”. Roberts v. Energy Dev. Corp.,

(5th Cir. 1997); see LA. REV. STAT. ANN. § 9:2780(A). The

LOIA provides:

Any provision contained in, collateral 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

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

LA. REV. STAT. ANN. § 9:2780(B) (West Supp. 2001)(emphasis added).

Phillips contends: (1) because it was a joint employer of

Lee, the LOIA does not apply, and (2) because it was only

vicariously liable, the indemnity agreement does not run counter to

the LOIA, as Phillips would not be indemnified for its own

negligent acts.

As for the first contention, Phillips admits it was a joint

employer of Lee; restated, it does not contend that Lee should not

be considered its employee. Accordingly, Phillips has not

demonstrated that Lee, although a joint employee, was not its

employee within the contemplation of the LOIA.

Phillips’ second contention fares no better. The LOIA is

meant to prohibit an entity, such as Phillips, from passing, to

another entity, liability resulting from, inter alia, the acts of

the first entity’s employee. When an employee is negligent, the

employer’s liability will most often arise through vicarious

liability. To accept the distinction proposed by Phillips would

render the LOIA useless, because the liability of the employer

seeking indemnity is many times vicarious in nature.

4 Accordingly, because Lee was an employee of Phillips, Phillips

cannot escape the provisions of the LOIA based on the nature of its

liability. In the light of our holding, we need not reach the

alternative reasons to affirm proposed by PSI.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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