Breaux v. Halliburton Energy Services

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 6, 2009

No. 07-30964 Charles R. Fulbruge III
Clerk

SHANNON BREAUX, Etc

Plaintiff
v.

HALLIBURTON ENERGY SERVICES

Defendant - Appellee-Cross-Appellant

v.

ERA AVIATION INC; ROWAN COMPANIES INC

Defendants - Appellants-Cross-Appellees

Appeal from the United States District Court
for the Eastern District of Louisiana

Before DAVIS, STEWART, and DENNIS, Circuit Judges.
CARL E. STEWART, Circuit Judge:
This appeal involves the application of two separate contracts. Under one
contract, the district court found that Era Aviation, Inc. (“Era”) was required to
indemnify Halliburton Energy Services (“HES”) for liability arising out of Era’s
provision of aviation services. Under the second contract, the district court
found that HES was required to indemnify Rowan Companies, Inc. (“Rowan”)
and its subsidiary Era, for liability relating to the death of HES’s employees
 No. 07-30964

while they were on Era’s equipment. Applying both indemnity provisions, the
district court held that the reciprocal obligations created a circular indemnity
resulting in no party being entitled to indemnity from the other, and likewise,
no party was entitled to additional insured status. The parties filed cross-
appeals. The issues raised on both appeals center on the applicability of the
indemnity and insurance provisions under the contracts. Both parties raise as
issues whether the district court’s rulings were proper, and the cross-appeal
separately presents alternative bases to support the judgment. For the following
reasons, we affirm in part and remand in part for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND
I. The Factual Background
This case arises out of a helicopter crash in March 2004 that resulted in
the death of ten occupants, including some of HES’s employees. HES is in the
business of providing goods and services to customers with onshore and offshore
operations in support of oil and gas exploration and production. Rowan likewise
provides goods and services to customers in the oil and gas business who utilize
Rowan’s equipment and property. Era, a subsidiary of Rowan at the time of the
helicopter accident, was a provider of specialized helicopter services. A
helicopter operated by Era departed Galveston, Texas with two crew members
and eight passengers. Four of the eight passengers aboard the helicopter, Tyler
Breaux, Thomas Wayne Jackson, Jr., Andre Lake, and Jeffrey Willis Langley,
were employed by HES. The purpose of the flight was to transport the oil field
workers to an offshore drilling vessel, the Discover Spirit, operated by
Transocean Offshore Deepwater Drilling, Inc. (“Transocean”). Union Oil
Company of California (“Unocal”), the operator of wells in the Gulf of Mexico,
had previously contracted with Transocean for the services of the Discover Spirit
in connection with the operation of Unocal’s offshore wells. Era and HES were

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providing services to the same customer, Unocal. The aircraft crashed during
the flight, and all ten occupants were killed as a result of the accident.
II. The Procedural Background
In May 2004, Plaintiff Shannon Breaux, individually, and as
administratrix of the succession of Tyler Breaux, filed suit against Era and
Rowan, among others, for damages arising out of the death of her husband,
HES’s employee Tyler Breaux (“Breaux Action”). In June 2004, the Breaux
Action was removed to federal court and consolidated with two other actions
arising out of the same accident.
Era and Rowan filed a Third Party Complaint against HES seeking
contractual defense, indemnity, and additional insured status relating to the
claims of the four HES employees killed in the accident under a Mutual Hold
Harmless and Indemnity Agreement between Rowan and HES (“Rowan/HES
Agreement”). HES filed a Counterclaim against Era and Rowan seeking
defense, indemnity, and additional insured status relating to all claims made
against HES under a Commercial Agreement for Helicopter Transportation
Services (“Era/Unocal Agreement”). The Era/Unocal Agreement and
Rowan/HES Agreement are central to this appeal.
A. Era/Unocal Agreement
The Era/Unocal Agreement was executed by Era and Unocal on July 3,
2003. The Era/Unocal Agreement incorporated the indemnity provisions
contained in the Services and Drilling Master Contract (“SDM”) the two parties
executed on June 9, 1992. While Rowan was not a signatory to the Era/Unocal
Agreement, it was a wholly-owned subsidiary of Era. “Contractor” is defined as
“Era Aviation, Inc. and any and all of its parent companies, subsidiaries and
affiliates.” The agreement also expressly applies to helicopter services and the
transport of personnel and equipment.

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The Era/Unocal Agreement provides in pertinent part as follows:
6.1 1 CONTRACTOR’S Indemnity. CONTRACTOR [Era] hereby
agrees . . . to release, defend, and indemnify COMPANY
[Unocal] . . . and its contractors and subcontractor(s) of any
tier to the maximum extent permitted by the applicable law,
in each and every case, irrespective of whether any
indemnitee hereunder may be alleged or proven to have been
negligent (including but not limited to active, passive, sole,
joint, concurrent, comparative, contractual and gross
negligence), or otherwise legally liable (with or without fault
or whether strictly liable or in breach of any warranty), . . .
from and against any and all liability arising out of the
following:
...
c. All claims, liabilities, demands, actions, damages,
losses, and expenses, including but not limited to court
costs, reasonable attorney’s fees, and other litigation
expenses, for personal or bodily injury, illness, disease,
or death resulting from [Era’s] ownership, operation,
maintenance or use of aircraft under the Contract,
regardless of when, or where such injury, illness,
disease or death occurs . . . .

B. Rowan/HES Agreement
The Rowan/HES Agreement was executed by Rowan and HES on August
26, 2003. Era was not a signatory to the Rowan/HES Agreement, but the
provisions of the agreement inure to the benefit of Rowan’s “subsidiary and
affiliated companies.” The four introductory paragraphs of the agreement
establish the intent of the agreement.
WHEREAS, Contractor [HES] is engaged in the business of
supplying goods or services to customers having onshore and
offshore operations relating to the exploration and production of oil
and gas;

1
The document in the record at R. 968 contains a handwritten underline emphasis.
We have omitted that emphasis here.

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WHEREAS, Company [Rowan] is engaged in the business of
supplying goods or services to such customers utilizing equipment
and property owned by or under the management of Company
[Rowan] or its subsidiary or affiliated companies (the “Company’s
Property”);

WHEREAS, Contractor’s [HES] personnel or property are from time
to time located near or placed on Company’s Property under
circumstances in which Company [Rowan] has not hired Contractor
[HES] but Contractor [HES] and Company [Rowan] are providing
goods or services to the same customer in connection with a project;
and

WHEREAS, Contractor [HES] and Company [Rowan] hereby wish
to apportion their respective liabilities and responsibilities under
such circumstances.
The agreement then defines the scope of the indemnity obligation as
follows:2
(a) The parties [Rowan and HES] expressly intend and agree that
the phrase “be responsible for and hold harmess and indemnify,” as
used in this agreement, shall mean that the indemnifying party
shall release, indemnify, hold harmless and defend the indemnified
party from and against any and all claims, demands, fines,
penalties, causes of action, damages, attorney’s fees, cost of
litigation, court costs, judgments and awards of any kind or
character (collectively referred to hereinafter as the “claims”),
without limit and without regard to the cause or causes thereof,
including pre-existing conditions, defect or ruin of premises . . ., the
unseaworthiness of any vessel or vessels . . ., the ownership,
possession, management, maintenance, supply, operation (including
but not limited to ingress, egress, loading and unloading operations)
or navigation of any vessel, breach of representation or warranty
. . ., breach of duty (whether statutory, contractual or otherwise),
stict liability, tort, breach of contract (including any claims which
arise by reason of indemnification or assumption of liability
contained in other contracts entered into between an indemnified
party and a third party), fault, regulatory or statutory liability, the
negligence of any person or persons, including that of an

2
We have omitted the all-caps font in the following text for purposes of this opinion.

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indemnified party, whether such negligence be sole, joint or
concurrent, active, passive or gross, or any other theory of legal
liability.
The agreement then details each party’s respective indemnity obligation.
Regarding HES’s obligation, the agreement provides as follows:3
Contractor [HES] shall at all times be responsible for and hold
harmless and indemnify company [Rowan] from and against all
claims arising in connection herewith in favor of contractor, its
parents, subsidiary and affiliated companies, each of their
respective officers, directors and employees, each of their respective
officers, directors and employees, and any legal representative, heir
or survivor of any of the forgoing (. . . collectively referred to as the
“Contractor’s Group”) on account of illness, injury, or death of
contractor’s group or damage to or loss of property owned, rented or
provided by Contractor’s Group. . . .

The agreement also required Rowan and HES to maintain four types of
insurance: comprehensive general liability (including contractual coverage),
comprehensive automobile liability, workers’ compensation and employer’s
liability, and excess insurance. Regarding the interplay between the indemnity
provisions and the insurance provisions, the agreement provides that
[n]otwithstanding any other provisions of this Agreement to the
contrary, the parties hereby acknowledge and agree that the
indemnity obligations and the insurance obligations set forth herein
are separate and distinct duties under this Agreement. The parties
further acknowledge and agree that the indemnity provisions of this
Agreement shall not limit, restrict or alter the obligations of this
Agreement, even if one or more of the indemnity provisions are held
by a court to be unenforceable.

3
This paragraph was also in all-caps font, which we have omitted.

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C. Summary Judgment Rulings
In July 2005, Era and Rowan filed a motion for partial summary judgment
against HES with respect to the claims asserted in the Breaux action.4 Era and
Rowan argued that they were entitled to defense, indemnity, and additional
insured status from HES under the Rowan/HES Agreement. In August 2005,
HES filed a motion for summary judgment seeking a declaration that it was not
required to defend and indemnify Era and Rowan or name them as additional
insureds on its insurance policies. HES also sought a declaration that it was
entitled to a defense, indemnity, and additional insured status from Era with
respect to the claims asserted by Era and Rowan in their third-party claim
against HES pursuant to the Era/Unocal Agreement.
In December 2005, the district court issued an Order and Reasons on the
motions. Regarding the Rowan/HES Agreement, the district court held:
[T]he Rowan/[HES] Agreement applies under these facts and
requires [HES] to indemnify Era for the Breaux claims . . . .
Moreover, the agreement expressly entitles Era additional insured
status on whichever policies [HES] obtained to insure its indemnity
obligations under the Rowan/[HES] Agreement. Unfortunately, the
Era/Unocal Agreement functions to preclude Era from obtaining the
benefits of the Rowan/[HES] Agreement.

As to Era’s entitlement to additional insured status under the Rowan/HES
Agreement, the district court nonetheless held that “[i]t would be unfair” to
permit Era to receive indemnification under the additional insured status.
The district court further held that the Era/Unocal Agreement applied to
the facts of this case. As to Era’s argument that the Era/Unocal Agreement was
superseded by the later executed Rowan/HES Agreement, the court stated that
“Era executed indemnity agreements with two distinct parties—[HES] and

4
The Third Party Complaint against HES included claims relating to all four HES
employees, but the motion for partial summary judgment addressed only the Breaux Action
claims.

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Unocal. Era cannot escape the promises it made in its agreement with Unocal
by invoking provisions contained in a separate agreement that it later executed
with a third party.” The district court held that the Era/Unocal Agreement did
not entitle HES to additional insured status because the terms of the agreement
did not indicate that HES was part of the Unocal group which was entitled to
additional insured status under the agreement.
The district court issued a final judgment on September 26, 2007,
disposing of all the remaining claims of all parties in the case. Era, Rowan, and
HES timely filed their notices of appeal.

DISCUSSION
I. Standard of Review
This court reviews a district court’s grant of summary judgment de novo.
LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007).
Summary judgment is appropriate when “the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to a judgment as a matter of law.” F ED. R.
C IV. P. 56(c). All the facts and evidence must be taken in the light most
favorable to the non-movant. LeMaire, 480 F.3d at 387.

The Era/Unocal and Rowan/HES Agreements provide that
maritime/admiralty law shall govern, and to the extent such law is not
applicable, Texas law shall govern. “A maritime contract containing an
indemnity agreement . . . should be read as a whole and its words given their
plain meaning unless the provision is ambiguous.” Weathersby v. Conoco Oil Co.,
752 F.2d 953, 955 (5th Cir. 1984) (citation omitted). “Disagreement as to the
meaning of a contract does not make it ambiguous, nor does uncertainty or lack
of clarity in the language chosen by the parties.” Weir v. Fed. Asset Disposition
Ass'n, 123 F.3d 281, 286 (5th Cir. 1997) (citation omitted). Where “the written

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instrument is so worded that it can be given a certain definite legal meaning or
interpretation, then it is not ambiguous, and this Court will construe the
contract as a matter of law.” Id. “A court should construe an indemnity clause
to cover all losses which reasonably appear to have been within the parties’
contemplation.” Foreman v. Exxon Corp., 770 F.2d 490, 496 (5th Cir. 1985)
(internal quotations and citation omitted).

II. Indemnity Under Era/Unocal Agreement

The Era/Unocal Agreement provides that Era agrees to release, defend,
and indemnify Unocal and its contractors and subcontractors from and against
any and all liability arising out of all claims, liabilities, demands, actions,
damages, losses, and expenses for personal or bodily injury, illness, disease, or
death resulting from Era’s ownership, operation, maintenance or use of aircraft
under the agreement. Era and Rowan concede that the term “contractors” as
relates to Unocal’s “contractors and subcontractor(s)” in the Era/Unocal
Agreement would include HES.

Era and Rowan argue that because Era and Rowan’s claims against HES
are contractual in nature and are not claims “for personal or bodily injury,
illness, disease, or death,” Era is not obligated to indemnify HES under the
Era/Unocal Agreeement. The agreement does not limit indemnity to only tort
claims for personal or bodily injury, illness, disease, or death, but the agreement
unambiguously encompasses indemnity for Unocal and “its contractors,” in this
case HES, against “all liability” arising out of those claims. The claims arose out
of liability for death resulting from Era’s operation and/or use of the aircraft.
Nothing in the Era/Unocal Agreement indicates an intent on the parties to
exclude contractual liability. From the plain language of the agreement, Era’s
and Rowan’s claims in the Third Party Complaint against HES are covered by
the Era/Unocal Agreement.

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Era and Rowan rely on the Fifth Circuit’s decision in Corbitt v. Diamond
M Drilling Co., 654 F.2d 329 (5th Cir. 1981), to argue that more specific
language must be included to indicate an intention to include contractual
liability. In Corbitt, Shell entered into a contract with Diamond M. The contract
contained an indemnity provision whereby Shell agreed to indemnify Diamond
M against all claims brought by Shell’s employees, agents, invitees, or
subcontractors for personal injuries arising out of work performed by them.
Corbitt, 654 F.2d at 331. Diamond M assumed reciprocal liability to indemnify
Shell for claims brought by its own employees, agents, and invitees. Id.

Shell also hired Sladco as an independent contractor to provide personnel,
equipment, and supplies for casing services. Shell and Sladco executed a
purchase order which contained a provision that Sladco “shall indemnify and
defend Shell Oil Company and its employees and agents against all claims, suits,
liabilities and expenses on account of injury or death . . . arising out of or in
connection with this Order.” Id. The litigation in Corbitt arose from the injury
of a Sladco employee, Corbitt, who was working on Diamond M’s drilling rig.
Corbitt sued Diamond M, Diamond M filed a third-party action against Shell
seeking indemnity, and Shell brought a third-party action against Sladco
seeking indemnity. The relevant issue on appeal was whether Sladco was
required to indemnify Shell for Shell’s contractual liability to Diamond M. The
court held that Sladco was not. The court in Corbitt stated as follows:

Since the Purchase Order does not specifically provide that Sladco
assumes claims arising from Shell’s own separate contractual
obligations, such indemnification is not required.
Nor can it be said that Shell’s contractual duty to indemnify
Diamond M. is the kind of liability which the parties to the
Purchase Order intended to include within the scope of Sladco’s
duty to indemnify. Apart from any contractual undertaking to the
contrary, Sladco’s exposure to liability for injuries sustained by its
own employees would be limited by the relevant workers’

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compensation scheme. . . . In the absence of such explicit language,
it is unreasonable to assume that Sladco intended to undertake such
an unusual and surprising obligation.
....
The contract need not contain any special words to evince an
intention to create a right of indemnity for independent contractual
liabilities. We hold only that it must clearly express such a purpose.
In this case, there is nothing in the contractual language itself or in
the realities of the situation in which the parties executed the
Purchase Order which reflects any such intention.
Id. at 333-34.

Era and Rowan liken the language of the indemnity provision in the
Era/Unocal Agreement to the language of the provision at issue in Corbitt.
There exists, however, a significant distinction between the facts of this case and
those in Corbitt. In Corbitt, Sladco was being called upon to indemnify an
undisclosed third party, while in this case, HES is undisputedly an indemnitee
in the ERA/Unocal Agreement. Therefore, Era and Rowan had express notice
of its indemnity obligation to HES for “all liability” arising out of those claims.
Further, the Era/Unocal Agreement refers to “each and every case, irrespective”
of whether the indemnitee was “negligent . . . or otherwise legally liable.” Era
and Rowan’s argument that the language does not clearly require Era to
indemnify HES with respect to its contractual indemnity obligations is not
supported by either the unambiguous language of the Era/Unocal Agreement or
caselaw. We therefore affirm the judgment on this issue.

III. Rowan/HES Agreement Does Not Supersede Era/Unocal Agreement

Era and Rowan argue that the Rowan/HES Agreement should supersede
the Era/Unocal Agreement because the Rowan/HES Agreement was executed
later in time and contains provisions that deal with the same subject matter as
provisions contained in the Era/Unocal Agreement. HES contends that the

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Rowan/HES Agreement does not supersede the Era/Unocal Agreement because
the parties to and the subject matter of the two contracts are different.

Era and Rowan cite one unpublished case to support their argument that
a third party beneficiary waives any rights it has as a third party beneficiary by
executing a subsequent contract. See McLaughlin, Inc. v. City of Sandusky, No.
E-93-83, 1994 WL 700156 (Ohio Ct. App. Dec. 16, 1994) (unpublished).
McLaughlin applied Ohio law. The other cases cited by Era and Rowan support
the well-established contract principle that “[a] contract containing a term
inconsistent with a term of an earlier contract between the same parties is
interpreted as including an agreement to rescind the inconsistent term in the
earlier contract.” 29 W ILLISTON ON C ONTRACTS § 73:17 (4th ed. 2003) (emphasis
added).

In this case, Era and Unocal are the parties to the Era/Unocal Agreement
and Rowan and HES are parties to the Rowan/HES Agreement. HES was not
a party to the Era/Unocal Agreement, and therefore, there is no sound basis to
conclude that the Rowan/HES agreement supersedes the Era/Unocal Agreement.
We also affirm the district court’s judgment on this issue.

IV. Indemnity Under Rowan/HES Agreement

HES contends that the types of liability actually addressed in the
Rowan/HES Agreement make clear that liability for specialized aviation services
was never intended as a subject of the Rowan/HES Agreement. Further, HES
contends that the term “Company” in the Rowan/HES Agreement applies only
to Rowan, and to include subsidiary and affiliated companies in the definition
of “Company” would lead to superfluous text in the agreement. HES adds that
because the Rowan/HES Agreement would apply only if HES and Rowan—not
Era—were both working for the same customer on the same job-site, the
Rowan/HES Agreement is inapplicable to the facts of this case.

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The Rowan/HES Agreement provides that Rowan, “for and on behalf of
itself and its subsidiary and affiliated companies,” is referred to as “Company”
in the agreement. Paragraph 2(b) expressly states that “an indemnifying party’s
obligations contained in this agreement shall extend to the indemnified party,
its parent, subsidiary, and affiliated companies.” Therefore, Era, as a subsidiary
of Rowan, is also entitled to any protections of the agreement.

The introductory paragraphs indicate that the parties knew that each
party was in the business of supplying goods or services, and as to Rowan and
Era, it provides that “Company is engaged in the business of supplying goods
and services to such customers utilizing equipment and property owned by or
under the management of Company or its subsidiary or affiliated companies.”
The parties, therefore, clearly anticipated that a broad range of goods and
services provided by Rowan and Era would be within the scope of the agreement.
We affirm the judgment on this issue.

V. Additional Insured Status 5

Era and Rowan argue that even if the court finds the indemnity provision
in the Rowan/HES Agreement to be unenforceable, Era and Rowan are
nonetheless entitled to additional insured status with respect to the claims of the
HES employees because the Rowan/HES Agreement provides that the indemnity
obligations and the insurance obligations “are separate and distinct duties” and
the insurance obligation is enforceable “even if one or more of the indemnity
provisions are held by a court to be unenforceable.”

In ruling on this issue, the district court stated that “the agreement
expressly entitles Era to additional insured status on whichever policies [HES]

5
HES also sought additional insured status in the trial court, which held that HES
was not entitled to such status, as HES was not part of the group entitled to additional
insured status under the terms of the agreement. The parties raise the additional insured
status issue only as to Era and Rowan’s entitlement to additional insured status.

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obtained to insure its indemnity obligations under the Rowan/[HES]
Agreement.” The district court nonetheless ruled on equitable grounds that Era
should not receive indemnification via the additional insured provisions. The
district court stated that “the indemnity obligations of the parties have been
rendered nugatory by Era’s execution of two potentially conflicting agreements.
It would be unfair to allow Era to receive indemnification via the additional
insured provisions when its obligations under a separate agreement preclude it
from receiving indemnification on the claims at issue.”

In Diamond Offshore, this court considered a party’s argument that an
insurance provision only created a contingent obligation designed to assure
performance of the reciprocal indemnity provision. Diamond Offshore Co. v.
A&B Builders, Inc., 302 F.3d 531, 550 (5th Cir. 2002). The court agreed with the
district court’s holding that “the insurance provision created an obligation
independent of the reciprocal indemnity provision.” Id. The insurance and
indemnity provisions, therefore, should have been applied independently.

In this case, the language of the Rowan/HES Agreement provides that the
insurance provisions and indemnity provisions are separate and distinct. We
must therefore consider whether the separate and distinct insurance and
indemnity provisions in the Rowan/HES Agreement provide additional insured
status to Era and Rowan for the liability arising out of the underlying claims.
Paragraph 3 6 in the Rowan/HES Agreement provides the following regarding
indemnity:

Contractor shall at all times be responsible for and hold harmless
and indemnify [Rowan] from and against all claims arising in
connection herewith in favor of contractor, its parent, subsidiary
and affiliated companies, . . . on account of illness, injury or death
of contractor’s group or damage to or loss of property owned, rented

6
This paragraph was in all-caps font, which we have omitted.

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or provided by contractor’s group. If it is judicially determined that
the monetary limits of insurance required under this agreement or
of the indemnities voluntarily assumed under this paragraph (which
contractor hereby agrees will be supported either by available
liability insurance, under which the insurer has no right of
subrogation against company, or voluntarily self-insured, in part or
in whole) exceed the maximum limits permitted under applicable
law, it is agreed that said insurance requirements or indemnities
shall automatically be amended to conform to the maximum
monetary limits permitted under such law.

Paragraph 6 in the same agreement requires each party to maintain four types
of insurance coverage. Paragraph 6(b)(2) requires the following endorsement to
be part of the four named insurance policies: “To the extent such party has
assumed liability hereunder, naming the other party and its parent, subsidiary
and affiliated companies as an additional insured, except as to statutory
workers’ compensation . . . .” Paragraph 6(d) makes clear that the indemnity
obligations and the insurance obligations are separate and distinct duties.

Notwithstanding any other provisions of this Agreement to the
contrary, the parties hereby acknowledge and agree that the
indemnity obligations and the insurance obligations set forth herein
are separate and distinct duties under this Agreement. The parties
further acknowledge and agree that the indemnity provisions of this
Agreement shall not limit, restrict or alter the insurance obligations
of this Agreement, even if one or more of the indemnity provisions
are held by a court to be unenforceable.

Importantly, Era and Rowan are not simply asking this court to determine
whether they are entitled to additional insured status under the four types of
named insurance required under Paragraph 6(a) of the Rowan/HES Agreement.
Rather, Era and Rowan seek additional protection as additional insureds to the
full extent of its indemnity protection in Paragraph 3 based on the language in
Paragraph 6(b)(2) which provides “[t]o the extent such party has assumed
liability hereunder, naming the other party and its parent, subsidiary and
affiliated companies as an additional insured . . . .” We find no such obligation.

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First, the indemnity provision in Paragraph 3 contains its own insurance
obligation, and there is no requirement that HES name Era and Rowan as
additional insureds on any insurance obtained pursuant to Paragraph 3 of the
agreement. Second, the preface to Paragraph 6(b) limited the requirement to
name Era or Rowan as additional insured to the four insurance policies named
in Paragraph 6(a). Paragraph 6(d) expressly provides that the indemnity and
insurance obligations are separate and distinct. It is, therefore, contrary to the
plain terms of the agreement to incorporate the additional insured obligation in
the insurance provision into the indemnity obligation.

The district court did not address what, if any, coverage might be available
to Era or Rowan as additional insureds under the policies HES was obligated to
provide under Paragraph 6(a). Accordingly, we remand that issue to the district
court for it to consider that question.

CONCLUSION

We REMAND the sole issue regarding what, if any, coverage might be
available to Era or Rowan as additional insureds under the policies HES was
obligated to provide under Paragraph 6(a) of the Rowan/HES Agreement. We
otherwise AFFIRM the district court’s judgment.

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