A Brief Overview of Indemnity Provisions and Allocation of Risk In

A BRIEF OVERVIEW OF INDEMNITY PROVISIONS AND ALLOCATION OF RISK IN ENERGY AGREEMENTS

TEXAS LAWYER’S IN-HOUSE COUNSEL SUMMIT

MAY 17, 2012

Kenneth W. Bullock, II

1200 Smith Street, 14th Floor Houston, Texas 77002 Telephone: (713) 654-9637 [email protected] A BRIEF OVERVIEW OF INDEMNITY PROVISIONS AND EFFECTIVE ALLOCATION OF RISK IN ENERGY AGREEMENTS

The conscientious practitioner will always strive to allocate risk in connection with all contractual obligations and undertakings in the most efficient and effective manner available given the prevailing circumstances in which the subject matter of the contract or obligation is to be performed. This goal is, of course, no different for practitioners whose efforts are concentrated on behalf of one client as in the role of in-house counsel.

One of the most often utilized risk allocation devices in commercial settings, including several particular applications seemingly unique to the energy industry, is the contractual indemnity provision. At its most basic form, the contractual indemnity provision serves as a mechanism by which the parties to a contract may, through unambiguous terms, specify which party will be held financially responsible for certain losses, thus allowing the parties to effectively manage, shift and anticipate the risks that may be associated with the undertaking at hand. While the goal of specifying such financial responsibility and, as a result, effectively managing the associated risk, seems straightforward, a myriad of barriers, obstacles and snares in the form of specific legal hurdles and requirements often makes the actual execution of this goal confounding to both clients and their counsel.

The purpose of this paper is to provide the practitioner with a framework under which contractual indemnity provisions may be analyzed, drafted and ultimately enforced. The first section of this paper sets out the basic structure of an indemnity provision and identification of the roles and responsibilities of the parties involved. The second section of this paper provides a brief overview of the law governing the enforceability of contractual indemnity provisions frequently applied in domestic energy contracts: Texas, Louisiana, and the maritime law. The third section addresses commonly encountered statutory limitations on indemnification. Finally, the fourth section provides the practitioner with several points of consideration when confronted with the task of negotiating and drafting of a contractual indemnification provision.

I. CONTRACTUAL INDEMNITY IN GENERAL .

An agreement for indemnity is commonly defined as “[a] collateral contract or assurance, by which one person engages to secure another against an anticipated loss or to prevent him from being damnified by the legal consequences of an act or forbearance on the part of one of the parties or of some third person.”1 Thus, “[a]n indemnity agreement is a promise to safeguard or hold the indemnitee harmless against either existing and/or future loss liability,” which “creates a potential cause of action in the indemnitee against the indemnitor.”2

As noted above, such contractual indemnity provision may be employed by the prudent practitioner as an effective method of proactively allocating and managing risk between the parties. In the standard contractual indemnity provision, the “indemnitor,” or the party providing indemnification, agrees to “stand in the shoes” of the “indemnitee,” or the party receiving indemnification, and to undertake financial responsibility for certain losses defined in the indemnity provision – i.e., to hold harmless the indemnitee.

The contractual indemnity provision may take one of three standard forms:

 “Narrow Form” indemnity provisions, which establish essentially a comparative fault scheme between the parties, require the indemnitor to indemnify the indemnitee only to the extent the indemnitor is at fault for causing or contributing to the loss.

 “Intermediate Form” indemnity provisions, where the indemnitor is obligated to indemnify the indemnitee relating to the subject of the agreement, except for injury or loss caused by the indemnitee’s sole negligence. Any amount of fault on the part of the indemnitor will usually obligate the indemnitor to indemnify the indemnitee for the entire loss.

 “Broad Form” indemnity provisions, where the indemnitor agrees to indemnify the indemnitee for all losses regardless of fault, including losses caused by the sole negligence of the indemnitee. In the energy industry, contractual indemnity provisions often take the form of a specific type of broad form indemnity know as the “knock-for-knock” provision, where each party agrees to indemnify the other for injuries or damage to its personnel and property (which will often include each party’s respective contractors) irrespective of the cause of such injury or damage.

Additionally, it is not uncommon to encounter contractual “hybrid” indemnity provisions, including some negotiated middle-ground between the typical narrow form, broad form and knock-for-knock provisions.

Of particular importance in many contractual indemnification provisions is the issue of how to account for injury or damage on the basis of ownership rather than fault, whether sounding in tort, strict liability or breach of warranty. Because a requirement purportedly calling for indemnification for losses occasioned by the fault of another is often considered an extraordinary shifting of risk between the contracting parties, such provisions are regularly afforded heightened scrutiny and, more often than not, necessitate compliance with specific and stringent prerequisites before enforcement will be allowed.

II. SURVEY OF INDEMNITY PROVISIONS UNDER TEXAS, LOUISIANA AND MARITIME LAW .

Although many jurisdictions recognize the general enforceability of contractual indemnification provisions, not surprisingly, enforceability of such provisions calling for indemnification for the indemnitee’s own negligence can vary significantly from jurisdiction to jurisdiction. This section provides a brief survey of the three bodies of law most commonly encountered in energy-related contracts: Texas, Louisiana and the maritime maw. Additionally, the often-confounding factor of the applicability of the Outer Continental Shelf Lands Act3

(“OCSLA”) is also briefly addressed. A. TEXAS LAW.

Texas law generally recognizes the enforceability of contractual indemnity provisions.4

Under Texas law, indemnity agreements are construed pursuant to the same, well-settled principles that control interpretation of contracts in order to give effect to the parties’ intent as expressed in the agreement.5 Such agreements are construed as a matter of law.6 In construing a written contract, the court’s primary concern is to ascertain the true intent of the parties as expressed in the agreement itself.7 Thus, the court must examine and consider the entire writing in an effort to harmonize and give effect to all provisions so that none is rendered meaningless; the court may not consider any single provision as controlling, but must consider all provisions in the context of the entire agreement.8

Whether indemnity provisions are ambiguous or unambiguous is determined as a matter of law, and unambiguous provisions are not enforceable.9 If considering all provisions enables the court to construe the agreement as giving a “definite or certain legal meaning,” the agreement is not ambiguous and may be construed as a matter of law.10 Simply because two opposing parties put forth differing interpretations of an agreement does not make it ambiguous; rather, an agreement is ambiguous only if a provision is reasonable susceptible to more than one meaning or if its meaning is uncertain.11

Fair Notice Requirements Under Texas Law.

Although such risk-shifting provisions are unquestionably enforceable as a general proposition, special considerations apply to those indemnity provisions contemplating an allocation of risk where the indemnitor agrees to indemnify the indemnitee regardless of fault. In such cases, Texas law requires the indemnity provision meet what are commonly referred to as the “fair notice” requirements of (i) the express negligence doctrine, and (ii) conspicuity. In the seminal Texas case of Ethyl Corp. v. Daniel Construction Co., wherein the Texas

Supreme Court adopted the express negligence doctrine, the court noted that “[t]he express negligence doctrine provides that parties seeking to indemnify the indemnitee from the consequences of its own negligence must express that intent in specific terms.”12 Subsequently, in Dresser Industries v. Page Petroleum, Inc., where the Texas Supreme Court again addressed the fair notice requirements of the express negligence doctrine and conspicuousness, the court carefully and succinctly set out the issue under consideration: “It is important to note that our decision today is limited solely to those types of releases which relieve a party in advance of liability for its own negligence.”13 The court further noted that, “[b]ecause indemnification of a party for its own negligence is an extraordinary shifting of the risk, this Court has developed fair notice requirements which apply to these types of agreements.”14

With respect to the express negligence doctrine, parties seeking to provide indemnification resulting from the indemnitee’s own negligence must express such an intent in specific terms within the four corners of the indemnity provision.15 If an indemnity provision does not meet the requirements of the express negligence doctrine, the indemnitor will not be required to indemnify the indemnitee with regard to liability arising from the indemnitee’s own negligence, or for the costs of defense of any claim based upon the alleged negligence of the indemnitee.16 Notably, parties attempting to contract for comparative indemnity must also comply with the express negligence doctrine before indemnification for negligence claims will be enforced.17 Compliance with the express negligence doctrine is determined by the reviewing court as a matter of law.18

With respect to the conspicuity prong of the fair notice requirements, a contractual indemnity provision contemplating indemnification for the indemnitee’s own negligence will not be enforced where the provision itself is not conspicuous within the overall agreement. 19 If the indemnity provision does not meet the conspicuity requirement, the indemnitor will not be required to indemnify the indemnitee for liability in connection with the indemnitee’s own negligence or for the costs of defense in defending against claims alleging the indemnitee’s own negligence. This is true even where the indemnitee is ultimately exonerated from negligence claims.20

As with the express negligence doctrine, whether an indemnity provision meets the conspicuity requirement is determined by the reviewing court as a matter of law, and is based upon an objective standard.21 Such a provision will ordinarily be found to meet the conspicuity requirement when a reasonable person should have noticed the provision. By way of example, an indemnity provision on the back of a contract in the same font and color as the remainder of the agreement and not otherwise set apart from the other provisions of the agreement does not rise to the level of conspicuousness. On the other hand, an indemnity provision in bold face and/or in a different color, with all capital letters and under a separate heading would satisfy the conspicuity requirement.22

B. LOUISIANA LAW.

Like Texas law, the law of the State of Louisiana will generally enforce contractual indemnity provisions where such provisions are set forth in specific and unambiguous terms. 23

Additionally, Louisiana law, like Texas law, will also enforce contractual indemnification provisions purportedly calling for indemnification for losses or damage arising from the indemnitee’s own negligence; however, unlike Texas law, Louisiana law imposes a slightly lesser burden for enforcement of such provisions.24 Under Louisiana law, a contractual indemnification provision calling for indemnification for the indemnitee’s own negligence will be held enforceable where such intent is set out in clear and unequivocal terms.25 In the seminal Louisiana case of Polozola v. Garlock, Inc., the

Louisiana Supreme Court held “such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligence act, unless such an intention was expressed in unequivocal terms.”26

C. MARITIME LAW.

Under the maritime law, contractual indemnity provisions are generally enforceable.27

An agreement containing an indemnification provision “should be read as a whole and its words given their plain meaning unless the provision is ambiguous.”28 “A court should construe an indemnity clause to cover all losses which reasonably appear to have been within the parties’ contemplation. Interpretation of the terms of a contract is a matter of law, reviewable de novo on appeal.”29

Additionally, and relying upon a rule similar to that found under Louisiana law addressed immediately above,30 a contractual indemnity provision purportedly calling for indemnification by the indemnitor of the indemnitee for the indemnitee’s own negligence will also be enforceable under the maritime law, but only where the provision is expressed in clear and unequivocal terms.31

Thus, while the maritime law requirements for enforceability of indemnity provisions calling for indemnification for the indemnitee’s own negligence are somewhat more relaxed than the requirements imposed by Texas law, a determination of language necessary to meet the clear and unequivocal standard must be made. For example, the Fifth Circuit in Theriot v. Bay

Drilling Corp. held that language providing for indemnification “without limit and without regard to the cause or causes thereof or the negligence of any party” met the requirements of the clear and unequivocal standard necessary for enforcement of the indemnity provision.32

However, in Randall v. Chevron U.S.A., Inc., the Fifth Circuit held language calling for indemnification for fault “howsoever arising” did not meet the clear and unequivocal standard for enforcement under the General Maritime Law.33

D. THE OUTER CONTINENTAL SHELF LANDS ACT.

Originally enacted in 1953 to encourage exploration and development of the subsea and seabed resources contained within the outer continental shelf,34 the Outer Continental Shelf

Lands Act (“OCSLA”)35 was intended to define a body of law applicable to the seabed, subsoil and fixed structures (such as artificial island drilling rigs and platforms) engaged in the exploration, development, production and transportation of resources, including oil and gas, found in the OCS.

With respect to contractual disputes arising on the OCS, the OCSLA generally adopts the law of the adjacent state as surrogate federal law where the controversy arises (i) on an OCSLA situs, (ii) the federal maritime law does not apply of its own force, and (iii) the adjacent state’s law is not inconsistent with federal law.36

With respect to the OCSLA situs inquiry, OCSLA applies to “all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources ….”37

With respect to the second prong of the analysis – whether federal maritime law applies of its own force – such a determination depends not on a location inquiry but, rather, upon the nature of the contract involved.38 Generally, maritime contracts are agreements “relating to a ship in its use as such, or to commerce or navigation upon navigable waters, or to transportation by sea or to maritime employment.”39 In making the determination of whether a contract is, in fact, a maritime contract, the Fifth Circuit relies upon a two-part test set out in Davis & Sons,

Inc. v. Gulf Oil Corp.40 First, the court considers the historical treatment of contracts similar to the contract at issue.41 If not dispositive, the court then applies a six-factor test to determine whether the contract at issue is a maritime contract.42

If the loss at issue occurred on an OCSLA situs, and the federal maritime law does not apply of its own force to the contract at issue, the court must finally determine whether the applicable adjacent state’s law is inconsistent with federal law.43 Suffice it to say that, for the limited purpose of this paper, numerous decisions of the Fifth Circuit have held that Texas and

Louisiana law, and in particularly, the Texas and Louisiana anti-indemnity acts, are not inconsistent with federal law.44

Thus, in instances where the contractual indemnity provision at issue purportedly requires indemnification for loss or injury occurring on the OCS is not governed by maritime law of its own force, the adjacent state’s law is applied to determine the enforceability of such a provision.

However, as noted immediately below, several statutory restrictions and limitations on indemnification agreements under both Texas and Louisiana law add yet another layer of complexity to the indemnification analysis.

III. COMMONLY ENCOUNTERED STATUTORY LIMITATIONS ON CONTRACTUAL INDEMNITY PROVISIONS .

Given that contractual indemnity provisions are, as a general rule, enforceable in many jurisdictions, negotiations regarding these provisions often consume a disproportionately large amount of time during the drafting and execution stages of the formation of a contract. Also, as is demonstrated in the general overview of the enforceability of contractual indemnity provisions under Texas, Louisiana and maritime law provided above, the sophistication of the parties involved and their awareness and understanding of the applicable law can be the key in drafting an enforceable indemnity provision that properly expresses the parties’ true intent. However, in situations where an obvious disparity exists between the relative bargaining power and sophistication of the parties, the less sophisticated contracting party could potentially find itself on the receiving end of a contractual indemnity provision containing nearly or completely one- sided terms.

As a result, the legislatures in a large number of jurisdictions across the United States have enacted various statutory restrictions applicable to various forms of contractual indemnification provisions utilized in particular industries. Again, as Texas and Louisiana law is frequently applied to energy contracts along the Gulf Coast, a general overview of the relevant

Texas and Louisiana statutory anti-indemnification provisions is provided below.

A. TEXAS OILFIELD INDEMNITY ACT.

To prevent what it considered to be an inequity suffered by various contractors as a result of contractual indemnity provisions contained in oil and gas contracts, in 1973, the Texas legislature enacted the Texas Oilfield Indemnity Act (“TOIA”) shortly after New Mexico adopted similar legislation. Codified in Texas Civil Practice & Remedies Code §127.001, et seq., the TOIA generally renders void and unenforceable as against public policy contractual indemnification provisions in contracts pertaining to oil, gas or water wells or mines for other minerals that purportedly call for indemnification for the indemnitee’s own negligence.45

Under the plain language of the statute itself, the TOIA’s limitations upon contractual indemnity provisions apply only to those contracts pertaining to oil, gas or water wells or mines for other minerals.46 A contract pertains to a well if it requires the contractor to provide “well or mine services” or “to perform a part of those services or an act collateral to those services ….”47

The TOIA defines “well or mine service” in broad terms as including “drilling, deepening, reworking, repairing, improving, testing, … or otherwise rendering services in connection with a well drilled to produce or dispose of oil, gas, other minerals or water; and designing, excavating, constructing, improving, or otherwise rendering services in connection with a mine shaft ….”48

Despite its seemingly broad application, the Texas Supreme Court has held that the TOIA is to be strictly construed to allow parties to contract freely in agreements not covered by the plain language of the TOIA.49 For example, in Getty Oil Co. v. Insurance Company of North

America, the Texas Supreme Court determined that an additional insured provision in a purchase order was not invalidated by the TOIA, holding that the TOIA applied exclusively to indemnity agreements and did not prohibit insurance shifting agreements.50 Similarly, the Fifth Circuit in

In re: John E. Graham & Sons, after conducting a review of the Texas case law, held that the

TOIA applied only to those contracts bearing a close nexus to a well and that are directed toward the goal of obtaining and/or maintaining production from a well.51

Despite the prohibitions on indemnity agreements contained within the TOIA, §127.005 expressly states the TOIA does not apply “to an agreement that provides for indemnity if the parties agree in writing that the indemnity obligation will be supported by liability insurance coverage to be furnished by the indemnitor ….”52 However, if the indemnity provision calls for mutual indemnification, “the indemnity obligation is limited to the extent of the coverage and dollar limits of insurance … each party as indemnitor has agreed to obtain …,”53 and where the indemnity provision calls for unilateral indemnification, “the amount of insurance required may not exceed $500,000.”54 Additionally, the TOIA does include several other important exceptions and limitations of potential applicability to energy agreements:

 Exclusion for sale, purchase or transportation of gas or natural gas liquids or for construction, repair or maintenance of oil, natural gas liquids or gas pipelines;55

 Exclusion for property damage resulting from pollution;56

 Exclusion for property damage resulting from reservoir or underground damage, including loss of oil, gas or water or the well bore itself;57

 Exclusion for damage resulting from services to control a wild well;58 and

 Exclusion for costs of control of a wild well.59

B. LOUISIANA OILFIELD INDEMNITY ACT.

In 1981, apparently finding the same inequitable position between operators and contractors as that found by the Texas legislature, the Louisiana legislature enacted that state’s own anti-indemnity act relating to contractual indemnity provisions “pertaining to wells for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state ….” 60

Specifically, the Louisiana Oilfield Anti-Indemnity Act (“LOAIA”) declares void as against public policy “[a]ny provision contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or water … to the extent that it purports to or does provide for defense and/or indemnity … to the indemnitee against loss or 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.”61

In addition to the basic premise that the LOAIA, like the TOIA, applies only to those indemnity provisions contained in agreements pertaining to a well, the TOIA and LOAIA share several further commonalities. First, the LOAIA, like the TOIA, is construed and applied strictly by the courts. In order for the LOAIA to apply, there must be an agreement pertaining to a

“well,” and the agreement must involve operations related to the exploration, development, production or transportation of oil, gas or water.62 Also, the TOIA, like the LOAIA, invalidates only those “agreements” relevant to the particular work giving rise to the claim at issue, 63 and courts have determined that, under both the TOIA and LOAIA, multiple directionally-drilled wells situated on a single platform constitutes one “well.”64 Finally, both the LOAIA and TOIA generally include exceptions for radioactivity, oil spill cleanup and pollution and for wild well control.

Despite these similarities, the LOAIA and TOIA have important differences. First, the

LOAIA addresses only indemnification provisions for death or bodily injury to persons – indemnification for property damage is allowed under the LOAIA.65 Additionally, and is important in the energy industry, the LOAIA contains no exception for provisions relating to pipeline activities.66

C. OTHER STATUTORY CONSIDERATIONS.

In addition to the Texas Oilfield Indemnity Act relating to indemnity provisions concerning well or mine services discussed above, the Texas legislature recently enacted a somewhat similar statute relating to indemnity provisions in construction contracts. Like the

Texas Oilfield Indemnity Act, the Texas Construction Anti-Indemnity Act (“TCAIA”), which went into effect on January 1, 2012 and is codified in Texas Insurance Code §151.001 et seq., provides for a significant limitation upon indemnity and insurance provisions in a “construction contract.”67

The operative provision of the TCAIA, §151.102, declares void and unenforceable as against public policy any indemnity provision “to the extent it require an indemnitor to indemnify, hold harmless, or defend a party, including a third party, against a claim caused by the negligence or fault … of the indemnitee, its agent or employee, or any third party under the control or supervision of the indemnitee ….”68 Thus, the TCAIA expressly precludes the enforceability of broad form contractual indemnity provisions in contracts relating to private or public construction project where the indemnitor is required to provide liability insurance coverage.

Although the TCAIA limitations on indemnity are somewhat similar to those contained in

TOIA in Civil Practice & Remedies Code §127, there are significant and important differences.

Namely, the TCAIA expressly excludes from its coverage indemnification provisions concerning bodily injury or death of an employee: “Section 151.102 does not apply to a provision in a construction contract that requires a person to indemnify, hold harmless, or defend another party to the construction contract or a third party against a claim for the bodily injury or death of an employee of the indemnitor, its agent, or its subcontractor of any tier.”69

IV. NEGOTIATING AND DRAFTING CONTRACTUAL INDEMNITY PROVISIONS .

As should be hopefully evident to the gentle reader, the negotiating and drafting of contractual indemnity provisions requires careful thought and analysis of not only the basic terms of the parties’ agreement, but also of the various contingencies which may arise in connection with the execution and performance of the parties’ agreement. The following discussion references only but a few of the issues the prudent practitioner will consider when negotiating and drafting the contractual indemnity provision.

A. CHOICE OF LAW.

As noted in Section II. above providing a general survey of Texas, Louisiana and maritime law concerning contractual indemnity provisions, and also in Section III. above regarding certain statutory limitations on contractual indemnity provisions, the varied nuances of each jurisdiction’s analysis of enforceability of such provisions make choice of law considerations of critical importance in negotiating and drafting the contractual indemnity provision. The prudent practitioner will be well-served in carefully selecting and the jurisdiction most beneficial to his or her client’s interests, whether those interests lie on the side of the potential indemnitor or the potential indemnitee.

A word of caution, however, is appropriate regarding the potential implications of state public policy considerations when drafting a choice of law provision. In certain scenarios where a loss or damage is sustained within a state or by a resident of that state, but the relevant contract under which indemnity may be had calls for application of the law of another state, the parties’ negotiated choice of law provision may be set aside by the reviewing court where the loss or damage was sustained based upon public policy considerations.70

B. SPECIFICITY, CONSPICUITY AND SIMILAR CONSIDERATIONS.

While the above analysis also makes clear that the prudent practitioner should specifically reference “negligence,” in any contractual indemnity provision seeking indemnification for losses arising irrespective of fault, consideration should also be paid to issues of sole and concurrent fault, as well as to various other non-negligence claims for which indemnification is sought.71

With respect to negligence claims, the prudent practitioner should also specifically include reference to “sole or concurrent” fault in the language of the indemnification agreement to ensure enforceability. For example, the Fifth Circuit in Smith v. Shell Oil Co. held the indemnitor owned indemnity for concurrent negligence of the indemnitee where the indemnity provision at issue referred to the “sole negligence” of indemnitee.72 In contrast, the Fifth Circuit in XL Specialty Ins. Co. v. Kiewitt Offshore Services, Ltd. held that, under Texas law, indemnity language referencing “any and all claims … whether or not caused in part by … active or passive negligence or other fault,” except for sole negligence, met the requirements of the Texas fair notice standard.73

Further, the prudent practitioner should also consider expressly including in a contractual indemnity provision specific language providing coverage for claims beyond negligence, such as claims for strict liability and breach of warranty. Under Texas law, the Texas Supreme Court in

Houston Lighting & Power Co. v. Atchinson, Topeka & Santa Fe Railway Co. has noted that, where the parties intend for a contractual indemnity provision to provide coverage for strict liability claims, the fair notice requirements applicable for sole negligence claims apply, and such claims for strict liability should be expressly included in the indemnity language.74

Similarly, and relying primarily on HL&P, the Dallas Court of Appeals recently held in Stanton

Holdings, Inc. v. Tatum, L.L.C., that the express negligence test should be extended to indemnification for claims arising from breach of warranty.75 However, the Louisiana Supreme

Court held in Sovereign Insurance Co. v. Texas Pipe Line Co. that indemnification for strict liability claims does not need to be stated in clear and unequivocal terms in the indemnity provision, so long as an intent to provide indemnity for strict liability claims can be found from the agreement as a whole.76

C. ACTUAL KNOWLEDGE AND THE PARTIES’ COURSE OF DEALINGS.

Although Texas requires compliance with the twin-prongs of the fair notice requirements

(the express negligence doctrine and conspicuity) and Louisiana and maritime law require the use of clear and unequivocal language before a contractual indemnity provision calling for indemnification of an indemnitee for the indemnitee’s own negligence will be found enforceable, certain evidence regarding the contracting parties’ negotiation and drafting of the subject agreement and/or prior course of dealings may obviate the need for compliance with the otherwise heightened scrutiny usually afforded such agreements.

The Texas Supreme Court in Dresser Industries, Inc. v. Page Petroleum, Inc.77 reaffirmed its prior holding in Cate v. Dover Corp.78 that actual knowledge renders the fair notice requirements of the express negligence doctrine and conspicuity irrelevant and immaterial: “The fair notice requirements are not applicable when the indemnitee establishes that the indemnitor possessed actual knowledge of the indemnity agreement.”79 The Texas Supreme Court subsequently reiterated the actual knowledge exception in Storage & Processors, Inc. v. Reyes, holding: “[I]f both contracting parties have actual knowledge of the plan’s terms, an agreement can be enforced even if the fair notice requirements were not satisfied.”80

In applying the actual knowledge exception to the fair notice requirements of Texas law,

Texas courts look to a number of factors in finding actual knowledge or notice. These factors include, but are not limited to, (i) evidence of negotiations regarding contract terms; (ii) evidence that the provisions had been brought to the indemnitor’s attention; and (iii) evidence of prior dealings between the parties.81

The Fifth Circuit, when interpreting Texas law, has also expressly acknowledged, accepted and applied the actual knowledge exception to the fair notice requirements. In Cleere

Drilling Co. v. Dominion Exploration & Production, Inc., the Fifth Circuit held “[e]ven if we assume without conceding that the pertinent language of the Contract is not sufficiently conspicuous …, we are convinced that the requirement of fair notice – both elements, i.e., express negligence and conspicuousness – is irrelevant in the face of Dominion’s actual knowledge of the subject provisions of the Contract.”82 Similarly, in Campbell v. Sonat Offshore Drilling, Inc.,83 the Fifth Circuit held that an indemnification provision on the back of a purchase order was effective and enforceable based upon the history and course of dealings between the parties. In arriving at its conclusion, the court stated: “[W]here parties share a history of business dealings and standardized provisions have become part of those dealings, those provisions, even though issued after performance, are binding if they are accepted without objection.”84

Thus, evidence of actual knowledge and a course of dealings between the parties to a contractual indemnity provision may transform an otherwise unenforceable indemnity provision, not in compliance with the fair notice requirements of express negligence and conspicuousness or meeting the clear and unequivocal standard, into a fully valid and enforceable indemnity agreement. As a result, the prudent practitioner would be well-served to preserve and maintain inviolate all drafts and/or redline versions of the indemnity agreement and other evidence of negotiations and course of dealings between the parties to combat a potential defense of failure to comply with the fair notice requirements or clear and unequivocal standard.

D. CONTRACTUAL LIABILITIES TO THIRD PARTIES.

While indemnification for contractual liabilities to third parties may not be critical in every indemnification scenario, failure to include coverage for contractual liabilities in the energy-relate indemnification provision may prove disastrous.

Absent express language, a contractual indemnity provision will not be construed to cover the indemnitee’s contractual liability to a third party: “[E]xpress notice is required where a party seeks to shift is contractual liability to indemnify a third party.”85 Thus, where an indemnification provision requires that indemnitor (“A”) will provide indemnification to the indemnitee (“B”), and where indemnitee B has also agreed in a separate agreement to indemnify yet another party (“C”) for certain losses, the original indemnitor A will not be required to indemnify the original indemnitee B for its obligation to indemnify C unless the indemnification provision between A and B contained express language providing coverage for, or “passing through,” B’s contractual liabilities to third parties.

In Sumrall v. Ensco Offshore Co., the Fifth Circuit analyzed a contractual indemnity provision that included language specifying the indemnitor’s intent to indemnify the indemnitee for obligations “whether arising in … tort” or “contract” and further included language that broadened the scope of indemnity to include “all claims … of whatsoever nature or character … whether or not caused by the … legal duty” of the indemnitee.86 The Fifth Circuit held that, based upon the specific inclusion of “contract” claims and the use of broad language covering claims “of whatsoever nature,” the indemnity provision required indemnification for the indemnitee’s contractual obligations.87

In Foreman v. Exxon Corp., however, the Fifth Circuit determined that the indemnity provision at issue contemplated indemnification only for “all claims, demands and causes of action … for injury to or death or illness of persons … in any way resulting from the willful or negligence acts or omissions of Contractor ….”88 Thus, because the indemnity language at issue failed to make specific reference to Contractor’s contractual indemnity obligations, no such indemnification was provided.89

E. GROSS NEGLIGENCE AND PUNITIVE DAMAGES.

When viewed as a particular subset of claims for which indemnification may or may not be provided under the particular law governing the contractual indemnification provision, issues concerning indemnification for gross negligence and punitive damages are often at the forefront. Texas Law.

With respect to indemnification for gross negligence and punitive damages, Texas law is generally unsettled. In Fairfield Insurance Co. v. Stephens Martin Paving, LP, the Fifth Circuit certified the following question to the Texas Supreme Court: Does Texas public policy prohibit a liability insurer from indemnifying a punitive damages award based upon a finding of gross negligence?90 In a 2008 opinion, the Texas Supreme Court held that Texas public policy did not prohibit coverage for punitive damage awards in the workers’ compensation context.91 The

Texas Supreme Court, however, declined to make a particular pronouncement with respect to public policy for indemnification of gross negligence.92

The intermediate courts of appeal, however, have reached conflicting results. In Crown

Central Petroleum Corp. v. Jennings, the Texas First Court of Appeals held that indemnification for gross negligence was not available where the language in the indemnification provision at issue specifically excepted sole negligence but included otherwise broad language requiring indemnification for “any and all claims … damages.”93 The First Court went on to note:

“Because we find the indemnity agreement at issue did not specifically express an obligation to indemnify Crown for punitive damages resulting from its sole gross negligence, we do not reach the question of whether indemnification of punitive damages (in a non-insurance context) violates public policy.” However, in Webb v. Lawson-Avila Construction, Inc.,94 the Texas

Fourth Court of Appeals held that, where the parties’ indemnity agreement specifically contemplated for indemnification of general contractor for damages caused by its own gross negligence, and the parties’ agreement included a provision that the agreement was not to be construed in favor of one party over the other, such a provision was enforceable under Texas law.95 In so holding, however, the Fourth Court of Appeals refused to address the public policy considerations: “We do not join the Crown court in condemning contractual agreements that provide for indemnification of gross negligence for the additional reason that we believe this is a matter better left to the legislature or the ruling of our Supreme Court.”96

Maritime Law.

In the recent decision issued in connection with the Deepwater Horizon incident, District

Judge Carl Barbier of the Eastern District of Louisiana held that, under maritime law, indemnification for gross negligence is enforceable and not void for public policy considerations.97 At issue was whether BP was contractually obligated to indemnify Transocean with respect to pollution claims in light of the parties’ contract that provided, in relevant part, that BP:

SHALL PROTECT, RELEASE, DEFEND, INDEMNIFY, AND HOLD [Transocean] HARMLESS FROM AND AGAINST ANY LOSS, … FOR POLLUTION … SPECIFICALLY WITHOUT REGARD TO NEGLIGENCE OF ANY PARTY OR PARTIES AND SPECIFICALLY WITHOUT REGARD FOR WHETHER THE POLLUTION … IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR FAULT OF [Transocean].98

An adjacent provision broadly defined the scope of the parties’ indemnity, which applied to the specific indemnity provision concerning pollution at issue:

THE PARTIES INTEND AND AGREE THAT THE PHRASE “SHALL PROTECT, RELEASE, DEFENDANT, INDEMNIFY AND HOLD HARMLESS” MEANS THAT THE INDEMNIFYING PARTY SHALL … INDEMNIFY … THE INDEMNIFIED PARTY … FROM AND AGAINST ANY AND ALL CLAIMS … WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, INCLUDING …THE NEGLIGENCE OF ANY PERSON OR PERSONS, INCLUDING THAT OF THE INDEMNIFIED PARTY, WHETHER SUCH NEGLIGENCE BE … GROSS ….99

Based upon the language of the parties’ indemnity provision, Judge Barbier concluded that BP was required to indemnify Transocean for its own gross negligence, and that the conflicting public policy considerations of freedom of contract and a reluctance to encourage grossly negligent behavior did not preclude such indemnity.100 Importantly, however, Judge

Barbier also held that the indemnification provision did not require BP to indemnify Transocean for punitive damages. Thus, because the fines and penalties that may be levied under the Clean

Water Act are penal in nature, such penalties would not fall under the coverage of the indemnity agreement.101

F. OTHER DRAFTING AND NEGOTIATING CONSIDERATIONS.

Although the several sections immediately above have hopefully provided the gentle reader with several specific issues requiring attention in the negotiation and drafting of typical energy-related indemnity provisions, the prudent draftsman should always consider the following core concepts that can often go over-looked where a majority of the draftsman’s time and attention is focused on the various vicissitudes of indemnity law:

 Who are the parties covered by the indemnification provision and whether each individual party’s officers, directors, shareholders, stakeholders, successors, assigns, affiliated entities, contractors, subcontractors, and so on are also provided coverage?

 Does the indemnity provision include an express provision requiring defense as well as indemnity?

 Should an applicable standard of conduct regarding the subject matter of the contract be included, and if so, what should it be – e.g., a requirement to work in good faith or to comply with a particular warranty of workmanship?

 How are notice requirements defined regarding when a demand for defense and/or indemnity must be made by the indemnitee so as to avoid the possibility of prejudice on the part of the indemnitor in providing such defense and indemnity?

 Should provisions regarding enforcement, such as setting out when a demand for defense and/or indemnity must be accepted or denied and the procedure for contesting such a demand or denial, be included?

 Will the indemnitor or the indemnitee select counsel if the indemnification provision includes a duty to defend?  How long after the completion of the underlying work should the indemnification provision survive?

 Should alternate dispute resolution methodologies, such as binding arbitration, be included?

V. CONCLUSION .

Although application of a contractual indemnification provision seems, on its face, a relatively straightforward method to allocate and manage risk in an energy agreement, the many factors and varying issues affecting the enforceability of such provisions have the potential to leave both contracting parties out to sea. While by no means all-encompassing, this paper has hopefully provided the gentle reader with enough background regarding these varying factors and issues to recognize the many pitfalls potentially present in negotiating and drafting, and in ultimately seeking enforcement of, contractual indemnification provisions in energy and related industries. 1 Dresser Indus., Inc. v. Page Petroleum, Inc., 852 S.W.2d 505, 508 (Tex. 1993) (quoting BLACK’S LAW DICTIONARY 692 (5th ed. 1979)). 2 See Id. 3 43 U.S.C. § 1331, et seq. 4 See, e.g., Dresser Indus., 852 S.W.2d at 508; see also Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989) (finding contractual indemnity provision valid and enforceable under Texas law). 5 See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000); Ideal Lease Serv., Inc. v. Amoco Prod. Co., 662 S.W.2d 951, 952 (Tex. 1984). 6 See J. M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003) (citing Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)). 7 J. M. Davidson, Inc., 128 S.W.3d at 229 8 See Id. 9 See Id. 10 See Id.; see also Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73-74 (Tex. 1997). 11 See J. M. Davidson, Inc., 128 S.W.3d at 229; Aiello, 941 S.W.2d at 73-74. 12 Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987) (emphasis added); see also Enserch Corp. v. Parker, 794 S.W.2d 2, 8 (Tex. 1990). 13 Dresser Indus., 852 S.W.2d at 507. 14 Id., at 508. 15 Ethyl Corp., 725 S.W.2d at 707-08. 16 See Fisk Elec. v. Constructors & Assoc’s, 888 S.W.2d 813, 814-16 (Tex. 1994). 17 Ethyl Corp., 725 S.W.2d at 707-08. 18 Id., at 814. 19 See, e.g., Dresser Indus., 852 S.W.2d at 511. 20 See, e.g., U.S. Rentals, Inc. v. Mundy Service Corp., 901 S.W.2d 789, 791-91 (Tex. App.—Houston [14th Dist.] 1995, pet. denied). 21 Douglas Cablevision v. SWEPCO, 992 S.W.2d 503, 509 (Tex. App.—Texarkana 1999, pet. denied). 22 See Dresser Indus., 853 S.W.2d at 511; see also TEX. BUS. & COM. CODE §1.201(b)(10) (Texas UCC definition of “conspicuous”). 23 See, e.g., Lee v. Allied Chem. Corp., 331 So.2d 608 (La. App. 1st Cir.), cert. denied, 337 So.2d 525 (La. 1976). 24 See, e.g., Amoco Prod. Co. v. Forest Oil Corp., 844 F.2d 251 (5th Cir. 1988) (in construing indemnity provision under Louisiana law, the court noted Louisiana’s “rule does not require any ‘magic words’ for an agreement to cover the indemnitee’s negligence ….”). 25 Polozola v. Garlock, Inc., 343 So.2d 1000 (La. 1977). 26 Id., at 1003 (citing, among others, Lee v. Allied Chem. Corp., 331 So.2d 608 (La. App. 1st Cir.), cert. denied, 337 So.2d 525 (1976)). 27 Tex. Eastern. Transmission Corp. v. McMoRan Offshore Exp. Co., 877 F.2d 1214 (5th Cir. 1989). 28 Foreman v. Exxon Corp., 770 F.2d 490, 495 (5th Cir. 1985) (quoting Weathersby v. Conoco Oil Co., 752 F.2d 953 (5th Cir. 1984)). 29 Id. (internal quotations omitted). 30 In Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5th Cir. 1994), cert. denied sub nom., Sea Savage, Inc. v. Chevron U.S.A., Inc., 115 S.Ct. 498 (1994), the Fifth Circuit reversed the district court’s holding that Louisiana law required more specificity in indemnity provisions and “is more restrictive in allowing indemnification for an indemnitee’s own negligence than maritime law,” thus holding that the applicable clear and unequivocal standard appeared to be the same under both Louisiana law and maritime law. 31 See, e.g., United States v. Seckinger, 397 U.S. 203 (1970), rehearing denied 397 U.S. 1031 (1970); see also Theriot v. Bay Drilling Corp., 783 F.2d 527 (5th Cir. 1986); Seal Offshore, Inc. v. Am. Std., Inc., 736 F.2d 1078, 1081 (5th Cir. 1984). 32 Theriot, 783 F.2d at 539-40. 33 Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5th Cir. 1994). 34 Under the Outer Continental Shelf Lands Act (“OCSLA”), the “outer continental shelf” is defined as “all submerged lands lying seaward and outside of the area of lands beneath navigable waters …, and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” 43 U.S.C. §1331(a). Generally, this boundary line begins three nautical miles, or approximately three and three tenths statute miles from the coast. However, due to various historical considerations, the boundary line extends nine nautical miles beyond the coast of both Texas and Florida. 35 43 U.S.C. §1331, et seq. 36 See Union Tex. Petroleum v. PLT Eng’g, Inc., 895 F.2d 1043, 1047 (5th Cir. 1990). 37 See 43 U.S.C. §1333(a); see also Demette v. Falcon Drilling Co., 280 F.3d 492 (5th Cir. 2002) (discussing the OCSLA situs test in detail). 38 Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 316 (5th Cir. 1990); Theriot, 783 F.2d at 538-39. 39 Thurmond v. Delta Well Surveyors, 836 F.2d 952, 954 (5th Cir. 1988). 40 Davis & Sons, 919 F.2d 315-16. 41 Id., at 315. 42 Id., at 316. The six-factors considered in the Davis & Sons test include: 1) what does the specific work order in effect at the time of the injury provide? 2) what work did the crew assigned under the work order actually do? 3) was the crew assigned to work aboard a vessel in navigable waters; 4) to what extent did the work being done relate to the mission of that vessel? 5) what was the principal work of the injured worker? and 6) what work was the injured worker actually doing at the time of injury? 43 See PLT Eng’g, 895 F.2d at 1047. 44 See, e.g., Hogden v. Forest Oil Corp., 87 F.3d 1512 (5th Cir. 1996) (holding that the Louisiana Oilfield Indemnity Act is not inconsistent with federal law); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115 (5th Cir. 1992) (holding that application of the Texas Oilfield Indemnity Act would not conflict with any fundamental purpose of federal law). 45 TEX. CIV. PRAC. & REM. CODE §127.001, et seq. The operative provision of the TOIA, §127.003, provides: (a) Except as otherwise provided by this chapter, a covenant, promise, agreement, or understanding contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or water or to a mine for a mineral is void if it purports to indemnify a person against loss or liability for damage that: (1) is caused by or results from the sole or concurrent negligence of the indemnitee, his agent or employee, or an individual contractor directly responsible to the indemnitee; and (2) arises from: (A) personal injury or death; (B) property injury; or (C) any other loss, damage, or expense that arises from personal injury, death, or property injury. 46 TEX. CIV. PRAC. & REM. CODE §127.001(1) 47 TEX. CIV. PRAC. & REM. CODE §127.001(1)(A)(i)-(ii). 48 TEX. CIV. PRAC. & REM. CODE §127.001(4)(A)(i)-(ii). 49 See Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 795 (Tex. 1992), cert. denied sub nom., Youell & Companies v. Getty Oil Co., 510 U.S. 820 (1993). 50 Id., at 804-805. 51 In re: John E. Graham & Sons, 210 F.3d 333, 339-40 (5th Cir. 2000). 52 TEX. CIV. PRAC. & REM. CODE §127.005(a); see also Nabors Corp. Servs., Inc. v. Northfield, 132 S.W.3d 90, 99 (Tex. App.—Houston [14th Dist.] 2004, no pet.). 53 TEX. CIV. PRAC. & REM. CODE §127.005(b). 54 TEX. CIV. PRAC. & REM. CODE §127.005(c). 55 TEX. CIV. PRAC. & REM. CODE §127.001(4)(B)(i)-(ii). 56 TEX. CIV. PRAC. & REM. CODE §127.004(2). 57 TEX. CIV. PRAC. & REM. CODE §127.004(3). 58 TEX. CIV. PRAC. & REM. CODE §127.004(4). 59 TEX. CIV. PRAC. & REM. CODE §127.004(5). 60 La. R.S. 9:2780. 61 La. R.S. 9:2780B. 62 See generally, Transcontinental Gas v. Transp. Ins. Co., 953 F.2d 985, 991 (5th Cir. 1992) 63 See In re John E. Graham & Sons, 210 F.3d at 341. 64 Transcontinental Gas, 953 F.2d at 995 n. 40. 65 See La. R.S. 9:2780. 66 Compare La. R.S. 9:2780 with TEX. CIV. PRAC. & REM. CODE §127.001(4)(B)(i)-(ii); see also In re John E. Graham & Sons, 210 F.3d at 342. 67 Under the Texas Construction Anti-Indemnity Act, a “construction contract” is defined as “A contract … or agreement … entered into by an owner, … contractor, … subcontractor, supplier or material or equipment lessor for the design, construction, alteration, … repair, or maintenance of, or … furnishing of material or equipment for, a building, structure, appurtenance, or other improvement to or on public or private real property.” TEX. INS. CODE §151.001(5). 68 TEX. INS. CODE §151.102. 69 TEX. INS. CODE §151.103. 70 See, e.g., Roberts v. Energy Dev. Corp., 235 F.3d 935 (5th Cir. 2000) (finding parties’ choice of law provision calling for application of Texas law was unenforceable where incident at issue occurred in Louisiana and the work being done under the contract was primarily performed in Louisiana, even though the contracting parties involved had extensive connections with Texas). 71 See Quorum Health Res., L.L.C. v. Maverick Cnty. Hosp. Dist., 308 F.3d 451, 461-62 (5th Cir. 2002) (noting that, under Texas Law, “[A] contract subject to the express negligence rule cannot define what is included in an indemnity provision by stating what obligations are outside that indemnity agreement.”). 72 Smith v. Shell Oil Co., 746 F.2d 1087 (5th Cir. 1984). 73 XL Spec. Ins. Co. v. Kiewitt Offshore Servs., Ltd., 513 F.3d 146, 150 (5th Cir. 2008). 74 Houston Lighting & Power Co. v. Atchison, Topeka & Santa Fe Ry. Co., 890 S.W.2d 455 (Tex. 1994); cf English v. BGP Int’l, Inc., 174 S.W.3d 366, 375 (Tex.App.—Houston [14th Dist.] 2005, no pet.) (“[T]he express-negligence doctrine does not apply to non-negligent actions”) and DDD Energy, Inc. v. Veritas DGC Land, Inc., 60 S.W.3d 880, 885 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“[T]he express negligence component of the fair notice requirements does not apply where an indemnitee is seeking indemnification from claims not based on the negligence of the indemnitee”). 75 Stanton Holdings, Inc. v. Tatum, L.L.C., 345 S.W.3d 729, 734-35 (Tex. App.—Dallas 2011, no pet. h.). 76 Sovereign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982, 984-85 (La. 1986). 77 Dresser Indus., 852 S.W.2d at 508. 78 Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex. 1990) (“Because the object of the conspicuousness requirement is to protect the buyer from surprise and an unknowing waiver of his or her rights, inconspicuous language is immaterial when the buyer has actual knowledge of the disclaimer.”) 79 Dresser Indus., 852 S.W.2d at 508 n. 2. 80 Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004). 81 See, e.g., Cate, 190 S.W.2d at 561; see also Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 20 S.W.3d 119, 126 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (finding actual knowledge where indemnitor’s president, who signed the agreement, had read the agreement when he signed it, the agreement was less than two and one-half pages long and contained eight paragraphs with the indemnity provision constituting the last paragraph and the indemnity provision was referenced in two other paragraphs); Cleere Drilling Co., 351 F.3d at 648 (finding actual knowledge where the parties’ negotiations “included consideration of and changes to several portions” of the agreement and where the parties’ agents had made and initialed numerous changes to several pages of the printed form). 82 Cleere Drilling Co. v. Dominion Exp. & Prod., Inc., 351 F.3d 642, 647 (5th Cir. 2003). 83 Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115 (5th Cir. 1992). 84 Id., at 1120. 85 Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 333 (5th Cir. 1981); accord Foreman, 770 F.2d at 495-97. 86 Sumrall v. Ensco Offshore Co., 291 F.3d 316, 320 (5th Cir. 2002). 87 See Id. 88 Foreman, 770 F.2d at 497 (italics in original). 89 Id., at 498. 90 Fairfield Ins. Co. v. Stephens Martin Paving, LP, 381 F.3d 435 (5th Cir. 2004). 91 Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 654 (Tex. 2008). 92 See Id. 93 Crown Cent. Petroleum Corp. v. Jennings, 727 S.W.2d 739, 741-42 (Tex. App.—Houston [1st Dist.] 1987, no writ). 94 Webb v. Lawson-Avila Const., Inc., 911 S.W.2d 457 (Tex. App.—San Antonio 1995, writ dissm’d). 95 Id., at 461. 96 Id., at 462. 97 In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL 2179 (E.D. La. January 26, 2012). 98 Id., at *4. 99 Id. 100 Id., at *8. 101 Id., at *13.