                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                            No. 00-50141


             DIVERSE-RIMCO, a Texas General Partnership

                                                 Plaintiff-Appellant,


                               VERSUS


       PHILLIPS PETROLEUM, COMPANY, a Delaware Corporation

                                                  Defendant-Appellee.




            Appeal from the United States District Court
                  For the Western District of Texas
                          (A-98-CV-782-JN)
                            June 25, 2001
Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

      Plaintiff, Diverse-RIMCO (“Diverse”), appeals the district

court’s order granting summary judgment to Defendant, Phillips

Petroleum   Company   (“Phillips”),   denying   summary   judgment   to

Diverse, and dismissing the case.     After reviewing the record and

the briefs, we AFFIRM the judgment of the district court.


  *
   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opinion should not be published and is not precedent except under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.

                                  1
                     FACTS AND PROCEDURAL HISTORY

     Phillips   is   a     nonoperating     working-interest      owner    in   an

offshore oil and gas production unit known as Ship Shoal 113.

Diverse, an investment partnership that was formed in 1991 to

purchase a package of nonoperating oil and gas interests, purchased

a net-profits interest from Continental Oil Company (“Conoco”) that

burdens Phillips’s working interest.              Diverse’s interest is a

percentage of the profit, if any, from the production of oil and

gas from Ship Shoal 113, after expenses.           The net-profits interest

that Diverse owns is governed by a 1960 Agreement (the “1960

Agreement”) entered into by Conoco and three other oil companies.

The 1960 Agreement provides that losses covered by insurance are

not to be charged to the net-profits account and that the costs of

insurance to protect against such loss or damage are properly

charged as expenses to the net-profits account.

     To   protect    its    nonoperating      working    interest,     Phillips

obtained property insurance with the OIL Limited Insurance Company

(“OIL”), a consortium of approximately forty-five oil companies

that provides property insurance to its shareholders.                  In 1992,

Phillips also decided to purchase property insurance with Sooner,

its wholly owned and captive insurance company.               Phillips, as a

shareholder   in    OIL,    was   allowed    to   name   Sooner   as   a   joint

policyholder under its OIL policy.            Phillips used Sooner as the



                                      2
principal cash-flow and accounting vehicle for all losses incurred

by Phillips-owned assets.     In other words, Sooner facilitated

Phillips’s corporate insurance and risk management programs and

handled the payments of Phillips’s premiums to OIL.

      Under the OIL policy, Phillips is assessed a retrospective

premium or penalty when a claim is made against the insurance.2

Phillips funds the payment of the penalty (as with its other

premiums to OIL) through Sooner.    Sooner is then reimbursed by

assessing the cost of the penalty to the business division that

suffered the property loss.    According to Phillips, one of the

purposes of this penalty is to encourage the managers of Phillips

to undertake aggressive loss-prevention measures.     The amount of

the penalty is determined by the cost of the claim actually paid

spread over five years.

      On August 25, 1992, Ship Shoal 113 suffered damage from

Hurricane Andrew.   OIL made payments on Phillips’s claim, and

Sooner began to pay the retrospective premium.      On January 15,

1993, Phillips entered into a Premium Agreement (the “Premium

Agreement”) with Sooner to apply its reimbursement policy to the

Hurricane Andrew situation.   According to Phillips, its original

plan was not to charge Ship Shoal 113 the costs of repairs and not

  2
    According to the deposition given by John Giavarini, Senior
Vice President of OIL, only 40% of the losses that Phillips
incurred are recovered by the retrospective premium method. The
other 60% were funded through a different method whereby individual
members are charged a rate equal to the ratio of losses accumulated
over a five-year period and then divided by assets at a fixed time.

                                3
to credit the insurance proceeds to the net-profits account.            At

Diverse’s request, however, Phillips charged the cost of the

insurance to the net-profits account so that Diverse could receive

the benefits of the insurance proceeds.       Accordingly, Sooner paid

the penalty and charged the loss to the North America E & P

Strategic Business Unit, the division that owns Ship Shoal 113.

When Phillips received proceeds from OIL, they were credited as

revenues to the net-profits account.

     In 1998, Diverse filed this suit claiming that Phillips

breached the 1960 Agreement by charging the retrospective premium

to the net-profits account.      Cross-motions for summary judgment

were filed.      On January 25, 2000, the district court granted

Phillips’s motion for summary judgment and denied Diverse’s cross-

motion.    The    district   court   then   entered   a   final   judgment

dismissing Diverse’s claims with prejudice. Diverse timely appeals

to this court.



                         STANDARD OF REVIEW

     “We review de novo the district court’s grant or denial of a

motion for summary judgment, viewing the facts and all reasonable

inferences therefrom in the light most favorable to the non-moving

party.”   St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d

326, 338-39 (5th Cir. 1996) (citing Cavallini v. State Farm Mut.

Auto Ins. Co., 44 F.3d 256, 266 (5th Cir. 1995)).         Summary judgment


                                     4
is   appropriate   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 judgment as

a matter of law.”       Fed. R. Civ. P. 56(c).        “When reviewing the

pleadings, depositions, admissions, answers to interrogatories, and

affidavits, the court must draw all reasonable inferences in favor

of the non-moving party.”       Russ v. Int’l Paper Co., 943 F.2d 589,

590 (5th Cir. 1989) (per curiam) (citing Randolph v. Laeisz, 896

F.2d 964, 969 (5th Cir. 1990)).



                                 ANALYSIS

     In challenging the district court’s order granting summary

judgment to Phillips and denying summary judgment to Diverse,

Diverse raises three main arguments: (1) that Phillips breached the

1960 Agreement by charging the retrospective premium to the net-

profits account, (2) that Phillips breached the implied duty of

good faith and fair dealing under the 1960 Agreement, and (3) that

the Premium Agreement was void for lack of consideration.

     First, Diverse argues that although Phillips was authorized

under the 1960 Agreement to deduct from production revenues “the

cost of any insurance premiums paid to insure against . . . damage

or loss,” the penalty provision is not such an “insurance premium.”

Diverse argues that the retrospective premium was a penalty charged



                                     5
to Sooner by OIL and that Phillips’s decision to reimburse Sooner

was a voluntary assumption of Sooner’s liability that could not be

properly assessed to the net-profits account.                     Diverse contends

that Phillips could charge only the cost of issuance of the Sooner

policy to the net-profits account.

       The 1960 Agreement unambiguously allows Phillips to charge the

cost of insurance to the net-profits account.                    Both paragraphs X

and XIV make this clear:

       The cost of the insurance which Odeco[3] and Burmah[4] are

       obligated to carry hereunder, the cost of such other

       insurance as said parties may carry, the deductibles of

       such insurance, losses suffered or not recovered because

       of   insufficiency,       inadequacy      or       failure   of     such

       insurance, shall be a proper charge . . . in determining

       net profits as hereinafter provided.

Paragraph X (emphasis added).

       There shall be no net profits . . . until Odeco and

       Burmah   shall     have   been    fully       reimbursed     from    the

       production from the applicable premises for all of their

       operating    and    development       costs    of    every   kind   and

       character    properly     chargeable          to    the   development,

       operation,    and    production       from     the    applicable

  3
       Odeco was the predecessor-in-interest to Murphy Oil U.S.A.,
Inc.
  4
       Burmah was the predecessor-in-interest to Phillips.

                                         6
      premises. . . .       The applicable premises may be charged

      with all costs . . . not limited to, the following:

            ....

            4. Damages or losses . . . of Odeco and Burmah . . .

            including . . . the cost of any insurance premiums paid

            to insure against damage or loss.

Paragraph XIV (emphasis added).

      Diverse does not dispute that the OIL policy requires the

charging of penalties or retrospective premiums for the issuance of

insurance.    Diverse’s main contention is that because OIL charged

the penalty to Sooner, Phillips cannot transfer the liability from

its   decision     to   voluntarily    repay       Sooner     to   the   net-profits

account.    Under the OIL policy, however, only shareholders of OIL

can obtain insurance from OIL.             The OIL policy clearly shows that

Phillips, not Sooner, was the named insured responsible for the

payment of premiums to OIL.                Thus, Phillips, not Sooner, was

legally obligated to pay the retrospective premium under the OIL

policy.     Sooner was only a joint beneficiary of the policy.

Phillips’s decision to make Sooner a joint policyholder and to

channel its payments under the OIL policy through Sooner was merely

an internal risk-management procedure and not relevant to the OIL

policy.    Endorsement 2 to the OIL policy states:

      If   such    a    subsidiary    or       subsidiaries    is   [sic]    so

      designated as a joint policyholder, the coverage and

      insurance limits available under the policy shall be only

                                           7
      those which would have been available had the shareholder

      been the named policyholder disregarding the naming of

      any   such    subsidiary     or       subsidiaries   as    a   joint

      policyholder. The premium to be paid shall be guaranteed

      by the shareholder and shall be computed as if the

      shareholder alone were the named policyholder.

Endorsement 2 to OIL Insurance Limited Policy (emphasis added).

Consequently,      we   conclude   that       because   the     charging   of   a

retrospective premium was required under Phillips’s OIL policy, the

retrospective premium properly constitutes a cost of insurance

authorized under the 1960 Agreement.            Thus, Phillips’s conduct in

charging the penalty to the net-profits account did not breach the

1960 Agreement.5

      Second, Diverse claims that Phillips breached the duty of good

faith and fair dealing in both the Louisiana Mineral Code6 and the

  5
     Diverse also contends that the penalty provision cannot be
considered a premium because, under the Louisiana Insurance Code,
a premium is defined as a “sum charged, received or deposited as
consideration for the purchase or continuance of insurance.” La.
Rev. Stat. Ann. § 22:5(7) (West 1995). Because, Diverse contends,
the penalty provision was not charged for the “purchase and
continuance of insurance,” the Louisiana Insurance Code excludes
such a penalty from consideration as a premium.
   We find this attempted reliance on the definition of “premium”
in the Louisiana Insurance Code to be mistaken. The 1960 Agreement
does not limit the types of allowable charges to the net-profits
account to insurance “premiums.” Instead, it specifically allows
the charging of “cost[s]” and “all other operating and development
costs of every kind and character.”
  6
    “[A] mineral lessee is not under a fiduciary obligation to his
lessor, but he is bound to perform the contract in good faith.”
La. Rev. Stat. Ann. § 31:122 (West 2000).

                                        8
Louisiana   Civil   Code.7    Diverse   contends    that    Phillips,   the

working-interest owner, violated its duty of good faith to Diverse,

the net-profits interest holder, by agreeing to repay Sooner the

penalty charged to it by OIL.

      Assuming, without deciding, that Louisiana law applies,8 we

reject Diverse’s argument. This court has previously held that “to

prove a breach of the implied covenant of good faith and fair

dealing under current Louisiana law, a plaintiff must show an

‘intentionally malicious failure to perform.’”          America’s Favorite

Chicken v. Cajun Enters., 130 F.3d 180, 182 (5th Cir. 1997) (per

curiam) (citing Am. Bank & Trust of Coushatta v. F.D.I.C., 49 F.3d

1064, 1068 (5th Cir. 1995)).       As stated above, the actions of

Phillips    were    clearly   authorized     by   the    1960   Agreement.

Consequently, no failure to perform occurred.           Moreover, Diverse

has failed to show any evidence of conscious or intentionally

malicious wrongdoing by Phillips.          Thus, “[b]ecause the actions

appellants complain of are authorized by the . . . agreements, and

because appellants have failed to produce any evidence of bad faith

or ill motive,” we reject Diverse’s contention that Phillips


  7
    “Contracts must be performed in good faith.”            La. Civ. Code
art. 1983 (West 1987).
  8
    At the summary judgment phase, the parties disputed whether
Texas or Louisiana law applied. The district court concluded that
“[u]nder either state’s law, an implied duty cannot override or
contract the express terms of the contract.” On appeal, Diverse
again argues that Louisiana law applies.    Because the district
court did not decide this issue, we decline to rule on it.

                                   9
breached the implied duty of good faith and fair dealing.                    Clark v.

America’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997).

      Third, Diverse contends that Phillips’s agreement to reimburse

Sooner    for   the    penalty       paid    to   OIL   was    void    for   lack   of

consideration. The Premium Agreement, by its terms, is governed by

Oklahoma    law,9     which,   by     statute,     requires     the    existence    of

“sufficient cause or consideration” for the existence of a valid

contract.    Okl. St. Ann. tit. 15, § 2 (West 1996).                  Diverse argues

that the Premium Agreement is void for want of consideration

because it was merely a promise by Phillips to pay the debt of

another, Sooner, for which there was neither a benefit to the

promisor nor a detriment to the promissee.

      We reject Diverse’s argument.               Because Phillips, not Sooner,

was legally obligated to pay the retrospective premium under the

OIL agreement, Diverse’s contention that Phillips assumed Sooner’s

liability by reimbursing it under the Premium Agreement is without

merit. Moreover, under Oklahoma law, the written agreement between

Phillips and Sooner is presumptive evidence of consideration. Okl.

Stat. Ann. tit. 15, § 114 (West 1996) (“A written instrument is

presumptive evidence of consideration.”).                The Premium Agreement,

itself,    bolsters     such     a    presumption       by    explicitly     reciting

consideration: “NOW, THEREFORE, in consideration of the covenants,


  9
      The Premium Agreement states, “This Agreement shall be
governed by and construed in accordance with the substantive laws
of the State of Oklahoma.”

                                            10
assumptions, the payment, other consideration, and the release set

forth herein, the receipt and sufficiency of which is hereby

acknowledged, the parties agree as follows. . . .”



                            CONCLUSION

     Based on the foregoing, we AFFIRM the district court’s grant

of summary judgment to Phillips, its denial and summary judgment to

Diverse, and its dismissal of the case.




                                11
