                   Revised April 25, 2000

               UNITED STATES COURT OF APPEALS

                   FOR THE FIFTH CIRCUIT

           _____________________________________

                        No. 99-30301
           _____________________________________

           In Re: In the Matter of the Complaint
    of John E. Graham & Sons As Owner of M/V Sean G for
        Exoneration From or Limitation of Liability

                   JOHN E. GRAHAM & SONS,

                                             Plaintiff,

                           VERSUS

                   HORACE BREWER, ET AL.,

                                             Defendants,

                  ENRON OIL & GAS COMPANY,

                                             Defendant-Third
                                             Party Plaintiff
                                                  Appellee

                           VERSUS

            DYNAMIC OFFSHORE CONTRACTORS, INC.,

                                             Third Party Defendant
                                             Appellant.


____________________________________________________________

        Appeal from the United States District Court
 For the Western District of Louisiana, Lafayette Division
____________________________________________________________

                       April 18, 2000



                             1
Before HIGGINBOTHAM and PARKER, Circuit Judges, and WARD,* District
Judge:

T. JOHN WARD, District Judge:

      An offshore contractor appeals a decision casting it in

judgment to an owner on an indemnity claim.      Although it is a close

question, we believe that the Texas Oilfield Anti-Indemnity Act

bars enforcement of the indemnity agreement.           Accordingly, we

REVERSE.

                                   I.

                 BACKGROUND AND PROCEDURAL POSTURE

      In 1994, Enron Oil & Gas Company (“Enron”) owned several

offshore platforms in the Matagorda Island Area off the coast of

the State of Texas.    A bridge connected two of the platforms, and

together they formed Enron’s A-B complex. The A platform supported

eight gas wells, and the B platform held the production facilities.

The production side of the complex included gas separators, testing

equipment,   meters,   quarters,   and   other   devices   used   in   the

production of natural gas.1   In general terms, the gas flowed from

the wellheads located on the A platform through pipes to a manifold

and then through a series of pipes to separators and testing



  *
     District Judge of the Eastern District of Texas, sitting by
designation.
  1
     Raw natural gas contains both gas and liquid hydrocarbons.
Separators remove the liquid hydrocarbons from the gas. Howard
R. Williams et al., Manual of Oil and Gas Terms 983 (10th ed.
1997)(defining “separation”).

                                   2
equipment on the B side of the complex.                          After the initial

separation of the liquid hydrocarbons from the gas, the gas flowed

through a sales meter and into a pipeline.

          In addition to the two structures forming the A-B complex,

Enron also operated a nearby satellite platform.                        The satellite

platform supported three gas wells which Enron had completed in

1993 and 1994.              However, the satellite platform lacked its own

separators and testing facilities, so Enron needed to move the flow

of       gas   from   the    wellheads    on       the   satellite    platform   to   the

equipment on the A-B complex.                  Enron could not produce the new

wells until it connected the satellite platform to the A-B complex.

          Enron contracted with Offshore Pipeline, Inc. (“OPI”) to lay

a pair of pipelines between the satellite platform and the A-B

complex.           Enron’ agreement with OPI also required OPI to install

risers at the ends of the pipelines to facilitate the connection of

the new wells on the satellite platform to the new pipelines, and,

in turn, the new pipelines to the existing manifold located on the

A-B complex.2

          After the installation of the pipelines, Enron                     needed to

connect the wells on the satellite platform to the risers installed

by OPI.        Enron also needed to attach the risers running up the leg

of       the   A   platform    to   the   existing        manifold.     Moreover,     the


     2
     A riser is a vertical extension of the horizontal pipeline
at the bottom of the platform which allows the pipeline to run
vertically up the platform.

                                               3
inclusion of the production from the three new wells required

modifications to the safety system located on the A-B complex.

Enron hired Dynamic Offshore Contractors (“Dynamic”) to perform

these portions of the job.       Enron and Dynamic had previously

entered into a master service contract which contained a provision

requiring Dynamic to indemnify Enron for damages caused by Enron’s

negligence.3   Pursuant   to   the       master   service   contract,   Enron

solicited and accepted Dynamic’s bid to complete the tie-in of the

satellite platform.    The work order between Enron and Dynamic

called for Dynamic to perform several tasks on both the satellite

platform and the A-B complex.    On the satellite platform, Dynamic

fabricated and installed a manifold, connected flowlines from the

three individual Christmas trees to the new manifold, and installed




  3
     The master service contract, entered in 1991, provided in
part that:

      [Dynamic] agrees to protect, defend, indemnify and hold
      [Enron] harmless from and against all damage, loss,
      liability, claims, demands and causes of action of
      every kind and character, without limit and without
      regard to the cause or causes thereof, including but
      not limited to strict liability or the unseaworthiness
      or unairworthiness of any vessel or craft, or the
      negligence of any party, including but not limited to
      the sole or concurrent negligence of [Enron], arising
      in connection herewith in favor of [Dynamic’s] agents,
      invitees and employees, and [Dynamic’s] subcontractors
      and their agents, invitees and employees, on account of
      damage to their property or on account of bodily injury
      or death. . . .

                                     4
a pneumatic safety system.4        On the A-B complex, Dynamic installed

piping from the risers installed by OPI to the existing manifold,

modified    the    safety     shutdown       system    on     the   A   platform      to

incorporate the two new incoming pipelines, and installed shut down

valves and check valves.        These modifications allowed the operator

to segregate the product from each individual well for testing and

enabled the operator to shut in any particular well in case of an

emergency.

       During the project, Daniel Koonce (“Koonce”) and Horace Brewer

(“Brewer”), two Dynamic employees, were injured while being lowered

in a personnel basket from the satellite platform onto the deck of

a boat owned by John E. Graham & Sons (“Graham”).                          OCS, Inc.

(“OCS”) employed the crane operator.             At the time of the accident,

Brewer and Koonce were installing connecting spools in a riser

attached to the satellite platform.             This case arose in admiralty

when   Graham     filed   a   petition    seeking       exoneration       from   or   a

limitation of liability in response to the personal injury claims

made by Brewer and Koonce.          When Brewer and Koonce filed cross-

claims   against    Enron,     Enron   demanded        that    Dynamic    honor    the

indemnity    covenant     contained      in   the     master    service    contract.

Dynamic refused, prompting Enron to file a third party action



  4
     The Christmas tree is the uppermost assembly of valves on a
gas well. Williams, supra, at 157. This assembly is shaped
somewhat like and referred to in the industry as a Christmas
tree.

                                         5
against Dynamic for breaching the indemnity provision.

      The parties settled the personal injury claims for $550,000.

Thereafter, the district court held a bench trial to apportion

fault among OCS, Enron and Graham.5    The court found that OCS bore

the majority of responsibility, at 75%.    The court found Enron 20%

at fault, and Graham, 5%.   The only remaining question was whether

the indemnity provision between Dynamic and Enron was enforceable

under the Texas Oilfield Anti-Indemnity Act (“TOAIA”).     The court

originally invalidated the provision but, on rehearing, revisited

the issue and enforced it.     Having concluded that Dynamic owed

Enron an indemnity obligation, the district court awarded Enron

$110,000   against   Dynamic   (representing   20%   of   the   total

settlement), plus an additional $56,200 in attorney’s fees and

costs. Dynamic appeals, asserting that the indemnity provision of

the master service contract is unenforceable under the Texas

Oilfield Anti-Indemnity Act (“TOAIA”).

                                 II.

             A.   APPLICABLE LAW AND STANDARD OF REVIEW



  5
     Enron stipulated that it owed an indemnity obligation to OCS
and Graham. And, at trial, Enron took the position that it,
rather than OCS or Graham, bore the bulk of responsibility for
the accident. Apparently, the purpose behind this strategy was
to try to reduce the responsibility of OCS and Graham,
concomitantly lowering the amount Enron would owe because of its
indemnity arrangement with those parties. At the same time, if
the court found that Enron had been primarily at fault, Enron
could attempt to pass its liability through to Dynamic under the
terms of the master service contract.

                                  6
       The parties have agreed that Texas law governs this dispute.

Because the facts in this case are undisputed, we turn to the

question whether the indemnity provision is enforceable under Texas

law.    We review the district court’s determination of Texas law de

novo.    Salve Regina College v. Russell, 499 U.S. 225, 231, 111

S.Ct. 1217, 1220-21, 113 L.Ed.2d 190 (1991).    We apply the law of

Texas as announced by that state’s highest court, or, in absence of

such a decision, we must predict what the highest court would

decide if it confronted the same issue.     Transcontinental Gas v.

Transportation Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992). In this

case, there is an absence of authority from the Texas Supreme Court

on the dispositive issue.   Therefore, we must anticipate what that

court would do under these facts.

       Under Texas law governing statutory construction, the primary

objective of a court is to give effect to the Legislature’s intent.

Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997).

In ascertaining legislative intent, Texas courts would consider the

object to attain, the circumstances of the statute’s enactment,

legislative history, former statutory and common law, and the

consequences of a particular construction.       Tex. Gov’t Code §

311.023; Mitchell Energy, 943 S.W.2d at 438.      The Texas Supreme

Court would attempt to give the statute the meaning the Legislature

intended, keeping in mind the old law, the evil, and the remedy.

Id.


                                  7
     In this case, Dynamic asserts that its agreement with Enron

contemplated well or mine service, implicating the protections of

the TOAIA.    Therefore, according to Dynamic, the district court

erred when it enforced the indemnity agreement contained in the

master service contract.       Enron asserts that Dynamic’s work fell

within an exclusion, rendering enforceable Dynamic’s indemnity

obligation.      Our study of the TOAIA informs us that Dynamic’s

agreement with Enron sufficiently contemplated well or mine service

to render the indemnity agreement unenforceable.

              B.   THE TEXAS OILFIELD ANTI-INDEMNITY ACT

                          1. HISTORY AND PURPOSE

     The TOAIA invalidates certain indemnity provisions contained

in agreements pertaining to wells for oil, gas, or water, or to

mines for minerals.6         In 1973, on the heels of New Mexico’s

     6
           The current version of the TOAIA provides in part:

     (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:

           (i)     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

           (ii) arises from:

                   (A)   personal injury or death;

                   (B)   property injury; or


                                     8
adoption of a similar statute, the Texas Legislature created an

interim committee to study the effects of hold harmless agreements

extracted from service contractors in the petroleum industry.

House Interim Study Committee on Hold Harmless Agreements, Report,

63rd Leg. i (1973).            The Legislature noted that the expense of

contracting for the negligence of a third party often put the small

contractor in a precarious financial position.              Id.     The committee

considered the arguments for and against the adoption of the TOAIA

and, noting inequities between large oil companies and small

contractors, ultimately recommended that the Legislature adopt the

TOAIA.          Id.    at     3-8.      After   receiving     the    committee’s

recommendation, the Legislature enacted the TOAIA to curb the

perceived inequity.           In general, the TOAIA provides that certain

agreements      which       provide   for   indemnification   of     a   negligent

indemnitee are void as against public policy. Tex. Rev. Civ. Stat.

art. 2212b (now codified at Tex. Civ. Prac. & Rem. Code § 127.001-

007).

           2.    THE SCOPE OF THE TOAIA AND ITS DEFINITION OF

                             “WELL OR MINE SERVICE”

     The    TOAIA      invalidates      indemnity   provisions      contained   in



                      (C)    any other loss, damage, or expense that
                             arises from personal injury, death, or
                             property injury.

Tex. Civ. Prac. & Rem. Code § 127.003.


                                            9
agreements pertaining to wells for oil, gas or water or to mines

for minerals.    Under the TOAIA, an agreement pertains to a well if

it requires the contractor to render “well or mine services” or

“to perform a part of those services or an act collateral to those

services    . . . .”   Tex. Civ. Prac. & Rem. Code § 127.001(1)(A)(i)-

(ii).      In turn, the TOAIA defines “well or mine service” to

encompass a broad range of activities, including:

     (i)    drilling, deepening, reworking, repairing, improving,
            testing, treating, perforating, acidizing, logging,
            conditioning,   purchasing,  gathering,   storing,   or
            transporting oil, brine water, fresh water, produced
            water, condensate, petroleum products, or other liquid
            commodities,   or  otherwise   rendering  services   in
            connection with a well drilled to produce or dispose of
            oil, gas, other minerals or water; and

     (ii) designing, excavating, constructing, improving, or
          otherwise rendering services in connection with a mine
          shaft, drift, or other structure intended for use in
          exploring for or producing a mineral . . . .

Tex. Civ. Prac. & Rem. Code § 127.001(4)(A)(i)-(ii) (Vernon 1997).

If an agreement calls for well or mine services, for a part of

those services, or for an act collateral to those services, it is

within the scope of the TOAIA.

     The Texas Supreme Court has counseled that the TOAIA is to be

strictly construed to permit parties to contract freely with regard

to agreements not covered by the statutory language.     Getty Oil Co.

v. Insurance Co. of N. America, 845 S.W.2d 794, 805 (Tex. 1992),

cert. denied sub nom., Youll & Companies v. Getty Oil Co., 114

S.Ct. 16 (1993).       In Getty Oil, the Court addressed whether an


                                   10
“additional insured” provision in a purchase order was invalidated

by the TOAIA.   Getty Oil, 845 S.W.2d at 805.       The court strictly

construed the terms of the TOAIA and rejected the argument that

sanctioning   the   insurance    shifting   provision   would   have   the

practical effect of relieving the oil company of responsibility for

its sole negligence.    Id.     The Court held that the TOAIA applied

exclusively to indemnity agreements and did not prohibit insurance

shifting arrangements not expressly covered by the statute.            Id.

Although the present case does not involve the same type of

contractual provision addressed by Getty Oil, we believe that the

Texas Supreme Court would strictly construe the TOAIA in assessing

whether an agreement comes within its scope.

     Although the Texas Supreme Court has not considered the

definition of well or mine service, intermediate Texas courts have

required a close nexus between production activities and the

agreement at issue.    For instance, in Transworld Drilling Co. v.

Levingston Shipbuilding Co., 693 S.W.2d 19, 23 (Tex. App.–Beaumont

1985), the court held that the TOAIA did not apply to an agreement

to repair an offshore drilling rig when the contractor performed

the repairs in a shipyard.       The contractor asserted that it was

rendering services in connection with a structure intended for use

in the exploration for or production of a mineral.      Transworld, 693

S.W.2d at 23.   The court rejected this argument and reasoned that

the Legislature did not intend to cover an on-shore repair contract


                                    11
when the record revealed no connection with the drilling of an

actual well.   Id.

     Likewise, in Singleton v. Crown Cent. Petroleum Corp., 713

S.W.2d 115, 121 (Tex. App.–Houston [1st Dist.] 1985), rev’d on other

grounds, 729 S.W.2d 690 (Tex. 1987), the court summarily held that

a contract between a petroleum company and its contractor requiring

work to be performed inside the company’s plant was not covered by

the TOAIA. Consistent with Transworld, the court characterized the

TOAIA as a statute prohibiting certain agreements pertaining to a

well site for oil, gas, or water, or to a mine for a mineral.

Singleton, 713 S.W.2d at 121.      Because the agreement involved in

Singleton was a construction contract for work to be performed at

a plant, the TOAIA did not apply.

     Finally, in Coastal Transport Co. v. Crown Central Petroleum

Corp., 2000 WL 33062 (Tex. App.–Houston [14th Dist.] 2000, n.w.h.),

the court held that the TOAIA did not invalidate an indemnity

provision contained in a terminal loading agreement between a

trucking company and a petroleum refiner.       The case arose when an

employee of    Coastal,   the   trucking   company,   was   injured   in a

gasoline fire at Crown Central’s loading terminal.          Coastal argued

that the agreement concerned “well or mine services” because

transporting gasoline was an act collateral to well services.          The

court rejected this argument, reasoning that the TOAIA only applies

to contracts for “services involved in the drilling or servicing of


                                    12
wells.”     Coastal Transport, 2000 WL 330062 at *7.                  Because Crown

was in the business of refining, supplying, and transporting

petroleum    products,      the     TOAIA    did     not     apply.       Transworld,

Singleton, and Coastal Transport all stand for the proposition

that, for an agreement to fall within the TOAIA, it must bear a

close nexus to a well drilled for oil, gas, or water, or to a mine

for a mineral.

                       3.      THE PIPELINE EXCLUSION

      The Legislature has also limited the definition of well or

mine service. In 1991, the Legislature amended the TOAIA to exempt

from the definition of well or mine service certain activities

related to pipelines. Under the TOAIA, “well or mine service” does

not include:

      (i)   purchasing, selling, gathering, storing, or transporting
            gas or natural gas liquids by pipeline or fixed
            associated facilities; or

      (ii) construction, maintenance, or repair of oil, natural gas
           liquids, or gas pipelines or fixed associated facilities.

Tex. Civ. Prac. & Rem. Code § 127.001(4)(B)(i)-(ii).7

      Our   research     has      revealed    only     one     decision    that   has

considered the pipeline exclusion.             In Phillips Petroleum Co. v.



  7
     The 1991 amendment also deleted the word “gas” from
subsection (4)(A)(i) immediately following the terms “gathering,
storing, or transporting oil.” The amendment did not remove the
word “gas” from the later provision of the same definition which
provides that well or mine service includes “otherwise rendering
services in connection with a well drilled to produce or dispose
of oil, gas, other minerals or water.”

                                        13
Brad & Sons Const. Inc., 841 F.Supp. 791 (S.D. Tex. 1993), the

court held that the TOAIA did not apply to a contract to repair a

leak in a pipeline located in a gathering field 800 feet from the

nearest well.      Id. at 796.      The court noted that the Legislature

intended the 1991 amendments to the TOAIA to clarify the already

existing definition of well or mine service.              Id.   In reaching this

conclusion,      the    court   relied   heavily     on   the   fact     that   the

Legislature had expressly given the 1991 amendments retroactive

effect.    Id.     The court held that the contract did not call for

work within the definition of well or mine service existing before

or after the amendments.        In other words, the agreement in Phillips

called    for    work   lacking   the    necessary    proximity     to    a   well.

Phillips, like the decisions announced by the intermediate Texas

courts, reinforces the requirement that a close nexus must exist

between the agreement and an actual well drilled to produce oil,

gas, or water.

      C. THE LOUISIANA OILFIELD ANTI-INDEMNITY ACT–SIMILARITIES
                           AND DIFFERENCES

       Although this court has only scarcely considered the scope of

the    TOAIA, it has addressed on several occasions the breadth of

the Louisiana Oilfield Anti-Indemnity Act (“LOAIA”).8                    While we

  8
     This court has never considered the definition of well or
mine service under the TOAIA. This court’s decisions under the
TOAIA address other provisions of the act, such as the provision
permitting certain cross-indemnity arrangements when they are
supported by insurance. See, e.g., Greene’s Pressure Testing &
Rentals v. Flournoy Drilling Co., 113 F.3d 47, 51 (5th

                                         14
find some guidance in this court’s decisions under the LOAIA, we

note differences in the structure of that act and the TOAIA.

Accordingly, while we refer to this court’s LOAIA decisions for

guidance, we do so only to the extent that the particular holdings

are supported by similar language set forth in the TOAIA.

     We first note the similarities in the two laws.                  Under the

LOAIA, this court has stressed that when the LOAIA speaks of

invalidating “agreements,” the relevant agreement is the particular

work order giving rise to the claim.                  See Roberts v. Energy

Development Corp., 104 F.3d 782, 784 n.3 (5th Cir. 1997)(applying

Louisiana’s version of the Act and focusing on oral work order);

Johnson   v.   Amoco   Production    Co.,     5   F.3d   949,   952   (5th   Cir.

1993)(same).    It is common practice for companies and contractors

to enter into master service agreements, the specific terms of

which govern future work performed by the contractor pursuant to

individual work orders or authorizations.                 Like its Louisiana

counterpart,    the    TOAIA    invalidates       “agreements,”   and   we   are

persuaded that the relevant agreement we must consider is the work

order between Dynamic and Enron giving rise to this claim.

     Furthermore, because offshore production differs from land-

based production, we have held that multiple wells directionally

drilled and situated on a single platform constitute one “well” for

purposes of the LOAIA.         Transcontinental, 953 F.2d at 995 n. 40.


Cir. 1997).

                                      15
Like many offshore platforms, the ones involved in this case

supported multiple wells.          On this point, we find the reasoning of

Transcontinental persuasive and hold that multiple wells supported

by a single platform constitute a single “well” for purposes of the

TOAIA.

          But this court’s decisions under the LOAIA provide less

support for deciding the question whether a particular agreement

contemplates “well or mine service” under the TOAIA.                     Under the

LOAIA, this court applies a two step approach to determine whether

an       agreement    falls   within    the   scope    of     that    legislation.

Transcontinental, 953 F.2d at 991.                 First, the court assesses

whether the agreement “pertains to a well.”                    Id. To determine

whether an agreement “pertains to a well,” this court has adopted

a        functional    approach.       Id.    at     994-95     (setting        forth

“Transcontinental         factors”).9          If,     after         applying    the


     9
          The Transcontinental factors include:

     (1) whether the structures or facilities to which the
contract applies or with which it is associated are part of an
in-field gas gathering system;
     (2) what is the geographic location of the facility or
system relative to the well or wells;
     (3) whether the structure in question is a pipeline or is
closely involved with a pipeline;
     (4) if so, whether that line picks up gas from a single well
or a single production platform or instead carries commingled gas
originating from different wells or production facilities;
     (5) whether the pipeline is a main transmission line or
trunk line;
     (6) what is the location of the facility or structure
relative to compressors, regulating stations, processing
facilities or the like;

                                         16
Transcontinental factors, the court concludes that an agreement

pertains to a well, the court then asks whether the agreement

involves   operations   related   to    the   exploration,   development,

production, or transportation of oil, gas, or water.         Id. at 991.

If it does, the LOAIA applies; otherwise, it does not.         Id.

     Dynamic relies on this court’s LOAIA cases to assert that its

agreement with Enron “pertained to a well.”        See, e.g., Lloyds of

London v. Transcontinental Gas Pipe Line Corp., 38 F.3d 193, 197

(5th Cir. 1994)(holding that work performed at or upstream from

metering point pertained to a well under the LOAIA); Copous v.

ODECO Oil & Gas Co., 835 F.2d 115, 116 (5th Cir. 1988)(contract for

the renovation of living quarters on a manned offshore platform

within the scope of the LOAIA). While we agree generally with

Dynamic’s reading of this court’s LOAIA cases, we disagree with

Dynamic’s conclusion that those cases are controlling because it

rests on the faulty assumption that the LOAIA and the TOAIA are

similarly structured.    The language of the LOAIA differs from the


     (7) what is the purpose or function of the facility or
structure in question;
     (8) what if any facilities or processes intervene between
the wellhead and the structure or facility in question, e.g.,
“heater treaters,” compressor facilities, separators, gauging
installations, treatment plants, etc.;
     (9) who owns and operates the facility or structure in
question, and who owns and operates the well or wells that
produce the gas in question;
     (10) and any number of other details affecting the
functional and geographic nexus between “a well” and the
structure or facility that is the object of the agreement under
scrutiny.

                                   17
TOAIA, and that difference renders suspect Dynamic’s analogy to our

decisions under the LOAIA.

     Primarily, the TOAIA contains a provision exempting certain

pipeline-related activities.       This court recently cautioned that

the Transcontinental approach is most relevant in a case where the

contract provides for work to be performed on a pipeline or other

part of the transmission system and where that work has little, if

any, connection to a well.        Roberts v. Energy Development Corp.,

104 F.3d 782, 785 (5th Cir. 1997).        The TOAIA’s pipeline exclusion,

absent   from   the   LOAIA,   generates    friction     with   this    court’s

Transcontinental      approach.    Roberts    and   the   TOAIA’s      pipeline

exclusion   counsel    against    Dynamic’s    attempt    to    apply,   carte

blanche, this court’s LOAIA decisions to cases arising under the

TOAIA.

     We further reject wholesale application of decisions under the

LOAIA to the cases arising under the TOAIA because the definitional

section of the LOAIA differs from the one provided by the TOAIA.

The relevant language of the LOAIA provides that “‘agreement’ as it

pertains to a well for oil, gas, or water . . . . means any

agreement or understanding . . . concerning any operations related

to the exploration, development, or production, or transportation

of oil, gas, or water . . . .”             La. Rev. Stat. Ann. § 9.2780

(emphasis added); see Transcontinental, 953 F.2d at 991. Under the

LOAIA, the phrase “as it pertains to a well” is not defined as part


                                     18
of the preceding term “agreement.”                 The undefined phrase “as it

pertains to a well” is, in part, language that led this court to

adopt a functional analysis to answer the question whether a given

agreement “pertains to a well.”            Transcontinental, 953 F.2d at 991

(noting    that   “[w]e     can     come   to     no   conclusion       but   that     the

legislature intended the Act to apply if (but only if) an agreement

pertains to a well”).         By contrast, the TOAIA defines the entire

phrase “[a]greement pertaining to a well for oil, gas, or water or

to   a mine   for    a    mineral.”        Tex.    Civ.    Prac.    &    Rem.    Code    §

127.001(1). Given that the TOAIA defines this entire phrase, while

the LOAIA leaves “as it pertains to a well,” undefined, this

court’s decisions applying the Transcontinental factors are not on

point.

      Accordingly, we derive our holding from the language and

purpose of the TOAIA, as opposed to borrowing from decisions

applying     Transcontinental.             We     begin    by   noting        that     the

Legislature listed no less than fifteen specific activities within

the definition of well or mine services.                  The definition includes

well services ranging from pre-completion tasks such as “drilling”

to post-completion work such as “deepening” and “reworking.”                           The

definition    also       includes    general       maintenance      tasks       such    as

“repairing” and “improving” together with services performed with

an eye toward regulatory requirements, i.e. “testing.”                          Finally,

the definition includes “treating,” a service necessary to prepare


                                           19
the ultimate product for transportation and sale.       Tex. Civ. Prac.

& Rem. Code § 127.001(4)(A)(i).

     In addition to the several activities specifically set forth

within the definition of well or mine service, the Legislature

included a catch-all provision.        Specifically, the definition of

well or mine services includes “otherwise rendering services in

connection with a well drilled to produce oil, gas, other minerals,

or water.” Tex. Civ. Prac. & Rem. Code § 127.001(A)(4)(i)(emphasis

added).     We believe that the Legislature’s use of the terms

“otherwise rendering services in connection with a well” indicates

an intent to expand the scope of activity constituting well or mine

service to other types of work falling within the same general

class or category as the activities specifically listed in the

definition. See, e.g., Dawkins v. Meyer, 835 S.W.2d 444, 447 (Tex.

1992)(discussing   statutory   construction     and   rule   of   ejusdem

generis).    The specifically listed activities are all typically

performed in close proximity to a well, but not all of them are

directed at the wellbore itself.         Moreover, as relates to gas

wells, the specifically listed activities are directed toward the

goal of obtaining or maintaining production from a well.          We hold

that a contractor is “otherwise rendering services in connection

with a well” if the services called for by the contract bear a

close nexus to a well and are directed toward the goal of obtaining

or maintaining production from a well.


                                  20
                       III.   ANALYSIS AND HOLDING

           A.   DYNAMIC’S AGREEMENT WITH ENRON CONTEMPLATED
                          WELL OR MINE SERVICES

       We hold that Dynamic’s agreement with Enron contemplated well

or mine services.      As we have noted, Texas law requires a close

nexus between the production activities and the agreement. We find

that    requirement    satisfied      in    this   case.   Particularly,   the

agreement called for Dynamic to fabricate and install a manifold on

the satellite platform and tie in flowlines to the actual wellheads

located on that platform.      Likewise, on the A-B complex, Dynamic’s

modification of the safety shutdown system to facilitate the

preservation of the production facilities and the employees manning

them in case of an emergency satisfies the requisite connection to

a well. Moreover, Dynamic’s services were performed to further the

goal of obtaining or maintaining production from Enron’s satellite

wells. Our treatment of the multiple wells on the platforms as one

“well” under the TOAIA reinforces our decision, because we view

these   platforms     as   integral    to    the   drilling   and   production

operations. Dynamic’s services, involving work on the platforms

themselves, are directly supportive of the wells.

B.   THE PIPELINE EXCLUSION DOES NOT EXEMPT THE AGREEMENT FROM THE
                 DEFINITION OF WELL OR MINE SERVICE

       Enron relies heavily on the TOAIA’s pipeline exclusion to urge



                                       21
that its agreement with Dynamic did not contemplate well or mine

service.    Although we credit the Legislature’s intent to restrict

the activity comprising well or mine service, we reject Enron’s

argument because Dynamic’s contract with Enron called for services

above and beyond simply installing piping associated with a well.

For this reason, Enron’s argument, though not without some force,

does not convince us that the exclusion validates the present

indemnity arrangement.

       Although the TOAIA contains a pipeline exclusion, it does not

define “pipeline.”      For the reasons discussed below, we need not

determine where the well “ends” and the “pipeline” begins to decide

this case.      However, Enron suggested at oral argument that, for

purposes of this and future cases involving the pipeline exclusion,

we should hold that the well “ends” and the pipeline “begins” at

the choke.10     In other words, Enron would have us hold that any

agreement calling for work to be performed downstream from the well

choke falls within the pipeline exclusion.                  We reject Enron’s

argument because it is inconsistent with at least three terms

contained in the definition of well or mine service.

       First,   the   definition   of    well   or   mine    service   includes

“testing.”      The undisputed facts of this case indicate that the

testing facilities for the three wells located on the satellite


  10
     The well choke is a valve located near the top of the
wellhead which controls the volume of gas flowing out of the
well.

                                        22
platform were actually located on the B side of the A-B complex.

The testing facility on the A-B complex was the location that the

flow from the individual wells could be segregated and directed

through a test separator for testing required by the Minerals

Management Service (“MMS”).         The Legislature’s use of the term

“testing” indicates its intent to include at least some types of

service work performed downstream from the wellbore.                   Enron’s

identification as the well choke as the point at which well service

stops and pipeline service starts would render meaningless the

Legislature’s inclusion of “testing” as a type of well or mine

service.

     Second, well or mine service includes “treating.”               Again, the

initial treatment of the natural gas produced from the satellite

platform occurred at the separation facilities located on the A-B

complex.      Until the raw gas passed through the separators, it

still contained both natural gas and liquid hydrocarbons. Although

we note that natural gas may go through various stages of treatment

throughout its transmission to the ultimate consumer, we must

strive   to   give   effect   to   the    Legislature’s   use   of    the   term

“treating,” as it relates to well service.            The use of the term

“treating,” at a minimum, indicates that the Legislature intended

to include at least initial treatment of product prior to its

transmission and sale.        Enron’s selection of the well choke, a

point upstream from the initial treatment point, fails to give



                                         23
effect to the Legislature’s intent.

     Finally, the definition of well or mine services includes

“otherwise rendering services in connection with a well . . . .”

(emphasis added).      The Legislature did not limit well services to

those performed in a well, but rather included work performed in

connection with a well.      The broader language “in connection with”

indicates a legislative intent to include services other than those

performed in the wellbore itself.            Enron’s suggested limitation of

well services to those performed in the wellbore fails to give

meaning to this phrase.

     Enron also asserts that Dynamic’s construction and fabrication

work is not well “service.” Enron seems to assert that fabrication

work or construction work performed at or in close proximity to a

well site can never constitute well “service.”                     We disagree.

Construction work is a type of service often provided by oil and

gas service contractors. In fact, the parties’ agreement is titled

a master service contract.        It characterizes Dynamic as a “service

contractor,” albeit one engaged in the construction and fabrication

business.     While   pipeline    construction          is   exempted   from    the

definition of well or mine service, Dynamic’s contract with Enron

contemplated work above and beyond simply installing pipes.                    Even

if we were to assume, arguendo, that connecting flowlines to the

risers   on    the    legs   of   the        platform    constituted    pipeline

construction within the meaning of the exemption, Dynamic also


                                        24
fabricated a manifold to be affixed to the satellite platform,

modified safety systems and tied flowlines into the Christmas trees

on the satellite platform. Although the pipeline exclusion exempts

pipeline construction from the definition of well or mine service,

we believe that the Legislature intended only to exempt those

agreements which, in their entirety, contemplate work within the

exclusion.   In this case, the agreement between Dynamic and Enron

was not limited solely to construction, repair or maintenance of a

pipeline, even if we assume that the piping installed by Dynamic

constituted a “pipeline” under the TOAIA.        Therefore, the TOAIA

applies to the indemnity covenant in the master service contract.

                          IV.   CONCLUSION

     In conclusion, we hold that Dynamic’s contract with Enron

contemplated “well or mine service” under the TOAIA.     We also hold

that the agreement was not limited to work falling under the

pipeline exclusion.   As a result, the TOAIA applies to invalidate

Dynamic’s indemnity obligation.        We REVERSE the judgment of the

district court and RENDER judgment that Enron take nothing by way

of its third party action.




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