CHOICE OF LAW APPEAL | Texas Supreme Court Remands for Application of Louisiana law
Sonat Exploration Co. v. Cudd Pressure Control, Inc. No. 06-0979 (Tex. Nov. 21,
2008) (Brister)(choice of law when contract not express, enforceability of Rule 11 agreement, indemnity law
and public policy of forum state vs. foreign state)
SONAT EXPLORATION COMPANY v. CUDD PRESSURE CONTROL, INC.; from Harrison County; 6th district
(06-03-00077-CV, 202 SW3d 901, 09-26-06) 2 petitions
The Court affirms the court of appeals' judgment [on other grounds]
Justice Brister delivered the opinion of the Court.
Related mandamus case: In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718 (Tex. 2006)(intervention of
nonparty)
Sonat Exploration Co. v. Cudd Pressure Control, Inc.
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Sonat Exploration Co. v. Cudd Pressure Control, Inc, 271 S.W.3d 228 (Tex. 2008)
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Argued February 6, 2008
Justice Brister delivered the opinion of the Court.
This case returns to us after we ordered that an insurer be allowed to argue on appeal a choice-of-
law issue that its insured had waived.[1] The court of appeals sustained the insurer’s point, finding
that Louisiana law applied because it was the place the contract was performed and was impliedly
chosen by the parties. While we disagree with those reasons, we agree with the court’s ultimate
conclusion that Louisiana law applies and that remand is required. Accordingly, we affirm.
I. Background
Sonat Exploration Company and Cudd Pressure Control, Inc. signed a Master Service Agreement in
May 1998 to govern oilfield services Cudd was to perform for Sonat. The agreement contemplated
operations in at least four places, and specified the law for three of them. It required each company
to indemnify the other for claims brought by their respective employees. It also required on jobs in
Louisiana that Cudd name Sonat as an additional insured on its insurance policies.
In October 1998, an explosion at one of Sonat’s Louisiana wells killed seven workers, including four
Cudd employees. When the survivors of those four sued Cudd and Sonat in Texas, Sonat demanded
indemnity but Cudd refused it. Sonat also demanded coverage as an additional insured from Cudd’s
insurer, Lumbermens Mutual Casualty Company, and again was refused. Sonat filed an indemnity
claim against Cudd in the survivors’ suit, and a separate lawsuit asserting claims against
Lumbermens as an additional insured and alternatively against Cudd for failing to name Sonat as an
additional insured.
Sonat and Cudd jointly settled with one of the four Cudd employees, but could not agree on
settlement amounts for the other three. Eventually Sonat alone paid about $28 million to settle those
claims, for which it seeks indemnity from Cudd.
The trial court found the parties’ indemnity agreement enforceable under Texas law, and after a jury
found a reasonable settlement would have been $20,719,166.74, the trial court entered judgment in
that amount for Sonat and against Cudd. Cudd filed a notice of appeal, and Lumbermens as its
insurer posted $29 million as security.
II. The Choice-of-Law Appeals
Before filing its appellate brief, Cudd signed a Rule 11 agreement with Sonat waiving its argument
that Louisiana law applied, in return for which Sonat agreed to nonsuit its separate contract suit.
When the court of appeals refused to allow Lumbermens to intervene to assert Louisiana law, we
granted mandamus relief, noting that otherwise the Rule 11 agreement might allow Cudd to “foist[]
liability for uninsured claims onto its insurer.”[2]
On remand, the court of appeals agreed with Lumbermens’ arguments and reversed the trial court’s
application of Texas law, and then remanded for unspecified further proceedings.[3] From that
judgment, Sonat appeals claiming its indemnity was valid under Texas law; Lumbermens responds
that it was invalid under Louisiana law; and Cudd conditionally appeals claiming it was invalid even
under Texas law.
We need not decide which state’s laws apply unless those laws conflict.[4] Under Texas law, oilfield
indemnity clauses are valid if they are mutual and supported by liability insurance.[5] Under Louisiana
law, such clauses are invalid if the party seeking indemnity was negligent or strictly liable.[6] The
parties all agree, as do we, that these laws conflict.
Choosing the applicable law is obviously a question of law, but the contacts to be considered may
raise a question of fact.[7] As the trial court made its decision here by summary judgment, we
construe all fact questions against the movant (Sonat),[8] and then review the trial court’s legal
decision de novo.[9]
Under Texas choice-of-law rules governing contracts (including oilfield indemnity clauses), we look to
the Restatement (Second) of Conflict of Laws — specifically section 187 for contracts that contain an
express choice of law, and section 188 for those that do not.[10] Accordingly, we begin our analysis
with those sections.
III. Did the Parties Choose Louisiana Law?
The parties’ Master Service Agreement contains a detailed choice-of-law provision, but none of it
applies to this case. The provision states that the governing law will be: (1) maritime law for
operations on navigable waters, and (2) Texas law for operations on land in Texas and New Mexico.
[11] As the drilling site here was on land in Louisiana, neither circumstance applies.
Lumbermens argues the parties impliedly chose Louisiana law by two other provisions in the
agreement that refer to work done in Louisiana: (1) a paragraph designating Sonat as a “statutory
employer” of Cudd’s employees for Louisiana workers compensation coverage;[12] and (2) an
attachment requiring Cudd to name Sonat as an additional insured for such work. The court of
appeals held that because the latter provision is the “only effective way to obtain indemnity” in
Louisiana, it should be treated as a choice by the parties to apply Louisiana law.[13] We disagree.
The Restatement recognizes that even if there is no explicit choice of law, use of legal terms or
doctrines peculiar to one state “may provide persuasive evidence that the parties wished to have this
law applied.”[14] If this case concerned workers compensation, the specific reference to Louisiana’s
compensation law would undoubtedly require that law to apply.[15]
But the indemnity provisions at issue here make no reference to Louisiana law. To the contrary, they
are printed in all capital letters, which appears to refer to Texas law (as it requires conspicuous notice
[16]), rather than Louisiana law (as it voids indemnities whether conspicuous or not).
Nor can we surmise from references to Louisiana operations in two paragraphs that the parties
intended Louisiana law to apply to all the rest. The Master Service Agreement is 21 pages long with
92 separately denominated paragraphs; had the parties intended to choose Louisiana law for all
paragraphs rather than just one or two, it is odd they did not say so in some more general way.
Finally, if the additional-insured provision was an attempt to avoid the effect of Louisiana’s indemnity
law, that is no evidence the parties affirmatively chose to apply it. Provisions to avoid the effects of
one state’s laws may tell us something about the parties’ expectations (a matter addressed below),
but it can hardly be treated as an affirmative election of that law.
The objectives behind choice-of-law rules generally and the Restatement rules in particular “may best
be attained in multistate transactions by letting the parties choose the law to govern the validity of the
contract and the rights created thereby.”[17] But the parties must make that choice themselves. As
the parties here failed to choose one law for all purposes in Louisiana, we must determine the
applicable law on other grounds.
IV. What Law Applies in Multistate Contracts?
Restatement section 188 provides that “an issue in contract [is] determined by the local law of the
state which, with respect to that issue, has the most significant relationship to the transaction and the
parties.”[18] In making that decision, we take into account the contacts listed in section 188 and the
principles listed in section 6.[19]
A. The Section 188 Contacts
Section 188 lists five contacts to be taken account: (a) the place of contracting, (b) the place of
negotiation, (c) the place of performance, (d) the location of the subject matter, and (e) the domicile,
place of incorporation, and place of business of the parties.[20] As will often be the case with
multistate contracts, in this case those contacts point in few (or perhaps too many) directions.
The place of contracting is technically Texas, as the last signature was added there.[21] But neither
the place of contracting nor the place of negotiation is significant when (as occurred here) the parties
conduct both from offices in different states.[22] Nor is the location of the subject matter significant
when the parties contemplate services in several different states.[23] Nor is the place of
incorporation significant, as nothing suggests these two Delaware corporations ever contemplated
oilfield work there.[24]
Cudd’s place of business is arguably significant because oilfield indemnity statutes are intended to
protect contractors from unfair bargaining.[25] But that place is itself unclear. The Master
Service Agreement lists an Oklahoma address for Cudd. Cudd filed a February 2000 affidavit by its
president swearing that its principal place of business was in Louisiana. Sonat found and filed a
June 1999 affidavit from the same officer in a different lawsuit swearing that “nearly all of the higher
level management decisions” are made in Georgia, that “the company generally advertises within the
industry that its main office is located in Houston,” and that “[m]ost of the department heads are
located either in Houston (engineering) or Houma, Louisiana (accounting, payroll and risk
management).” Suffice it to say that Cudd’s place of business appears to be flexible.
This leaves only the place of performance. The court of appeals found this contact dispositive,[26]
relying on our opinion in Maxus Exploration Co. v. Moran Bros., Inc.[27] In Maxus, we held that
section 196 of the Restatement makes the place of performance of “paramount importance” with
respect to service contracts.[28] We reserved in Maxus the question whether the place of
performance is where the drilling or the suing takes place.[29]
But section 196 applies only to service contracts involving a single state; it does not apply to
contracts like this one contemplating services in many states:
The rule [of section 196] applies if the major portion of the services called for by the contract is to be
rendered in a single state and it is possible to identify this state at the time the contract is made. It is
necessary that the contract should state where the major portion of the services is to be rendered or
that this place can be inferred either from the contract’s terms or from the nature of the services
involved or from other circumstances. For this reason, the rule of this Section is unlikely to aid in the
determination of the law . . . when the work called for by the contract can be done in any one of two or
more states.[30]
As no single state would have “loomed large” in the parties’ minds when signing this agreement,[31]
the contacts analysis suggests only that the law of several states might apply.
B. The Section 6 Principles
The Restatement lists seven non-exclusive factors to be considered in determining the applicable
law.[32] But it deems one of them most significant in contract cases: “Protection of the justified
expectations of the parties is the basic policy underlying the field of contracts.”[33] Enforcing
contracts according to their own terms satisfies the relevant policies of the forum,[34] enhances
certainty, predictability, and uniformity of result, and facilitates commerce and relations with other
states and nations.[35] Accordingly, the parties’ expectations as stated in their contract should not be
frustrated by applying a state law that would invalidate the contract, at least not unless those
expectations are substantially outweighed by the interests of the state with the invalidating rule.[36]
As already noted, for work in Louisiana the parties expressly provided that Sonat would be covered
(at its own expense) as an additional insured under Cudd’s insurance policies. Why insert this
special provision applicable only to Louisiana jobs? Additional-insured agreements are common
and enforceable in other places too.[37] The only explanation is that the parties expected their cross-
indemnities might not be enforceable there.
Sonat argues that the additional-insured provision was inserted simply to make sure indemnity
occurred — that it was merely a belt-and-suspenders provision. But both belt and suspenders are
unnecessary unless a person expects trouble with one of them. While we agree the parties expected
Sonat to be indemnified one way or the other, including this provision solely for Louisiana jobs
suggests they also expected trouble enforcing their indemnities in such cases.
Sonat points out that the Restatement urges courts to avoid applying a law that would invalidate the
parties’ contract, even if the parties had specifically picked it,[38] and argues that Louisiana law
would invalidate the cross-indemnities here. But that is not entirely true; Louisana law would
invalidate Sonat’s indemnity only if Sonat was negligent or strictly liable,[39] an issue that has never
been decided. Similarly, Texas law would partially invalidate these unlimited indemnities by limiting
them to the agreed amount of insurance coverage.[40] Thus, we can avoid all invalidating rules only
by avoiding both Texas and Louisiana law. No party suggests we go that far.
We do not hold today that Louisiana law should cover all indemnity disputes stemming from oilfield
accidents there. When a contract involves oilfield work in many states, sophisticated parties should
generally be free to designate the law that will govern their relationship and have that choice
respected.[41] But the parties here chose no law for Louisiana jobs, and included an additional-
insured provision that would have been superfluous had they expected their indemnities to be
enforceable in such cases. Because contracts should be governed by the law the parties had in mind
when the contract was made,[42] we hold in these circumstances that Louisiana law applies.
V. Did Cudd Waive Application of Louisiana Law?
Sonat argues that even if Louisiana law applies, Cudd should not benefit from such a holding
because, in accordance with their Rule 11 agreement, Cudd never asserted that issue on appeal. In
the unique circumstances here, we disagree.
It is of course true that an appellate court cannot reverse on a ground an appellant has never raised.
[43] But while Cudd did not raise the choice-of-law issue, Lumbermens did so on its behalf.
Lumbermens does not appear here on its own behalf, as it has neither sued nor been sued by
anyone; instead, it stands in the shoes of its insured. As we noted in the earlier original proceeding,
under the doctrine of virtual representation Lumbermens is not technically intervening as a separate
party, but “is already deemed to be a party.”[44] While insurer and insured are asserting different
legal theories regarding choice of law, both still share the identity of interest created by their
insurance contract.[45]
Moreover, we believe the result would be the same even if we treated Cudd and Lumbermens as
separate parties on appeal. Generally, reversal in favor of a party that appealed does not require
reversal in favor of another who did not.[46] But an exception applies when the rights of appealing
and nonappealing parties “are so interwoven or dependent on each other as to require a reversal of
the entire judgment.”[47] For example, when only one government agency successfully appealed an
expunction decision, we held the reversal must also apply to other agencies that failed to appeal,
because leaving a criminal record at some agencies but not others would provide neither party “full
and effective relief.”[48]
The same is true here: if Cudd is still bound to the trial court judgment, so is Lumbermens as its
liability insurer.[49] Sonat has not asserted a direct action in this case against Lumbermens;[50] but
it can recover against Lumbermens if it can recover against Cudd.[51] The $29 million Lumbermens
pledged to secure the trial court judgment during this appeal is payable to Sonat unless
Lumbermens’ successful appeal applies not just to itself but also to its insured.[52] The exception
extending reversals to nonappealing parties has most often been applied when indemnity claims or
other dependent claims are involved,[53] which is precisely the case here.
We understand Sonat’s complaint that it is unfair to let Cudd escape the burden of its Rule 11
agreement while Sonat cannot. But as recognized before, Sonat and Cudd intended this agreement
to shift all potential liability to Cudd’s insurer.[54] In some circumstances, such agreements are
against public policy and unenforceable.[55] While we have no occasion to question that agreement
here, we think Sonat’s complaint of unfairness is outweighed by the requirements that an insurer
must act in good faith on behalf of its insured.
VI. Should We Remand or Render?
Finally, Cudd complains that the court of appeals should have rendered judgment against Sonat’s
indemnity claim rather than remanding for further proceedings. But as already noted, neither the trial
court nor the jury found Sonat negligent or strictly liable, and without such a finding the plain terms of
Louisiana’s law do not appear to apply:
Any provision contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or
water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, is void and
unenforceable to the extent that it purports to or does provide for defense or indemnity, or either, to
the indemnitee against loss or 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.[56]
We recognize that in 1988 the Fifth Circuit made an Erie-guess that a settlement (like Sonat’s)
precluded indemnity claims under Louisiana’s oilfield indemnity law.[57] Since then, at least two
Louisiana intermediate appellate courts have held otherwise.[58] The Fifth Circuit has stuck to its
position under an internal rule that it must follow its own precedent until the state’s highest court has
ruled on the matter.[59] As we are not bound by that rule, we apply what appears to be the plain
meaning of the statute and the rulings of Louisiana’s own courts.
In the course of arguing that Texas law should apply, Sonat has argued that Louisiana law would void
its indemnity. But it has never conceded negligence; to the contrary, its settlement documents
specifically denied any liability. As we have rejected Sonat’s conclusion that Louisiana law would
inevitably void its indemnity, we decline to use that argument against it and hold that it waived any
dispute regarding negligence.
Accordingly, although we disagree with the court of appeals’ reasoning, we affirm its judgment
reversing the application of Texas law and remanding to the trial court for further proceedings
applying Louisiana law.
_______________________
Scott Brister
Justice
OPINION DELIVERED: November 21, 2008
[1] See In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718 (Tex. 2006).
[2] Id. at 728.
[3] 202 S.W.3d 901.
[4] Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 672 (Tex. 2004).
[5] Tex. Civ. Prac. & Rem. Code § 127.005; Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344,
346 (Tex. 2000).
[6] See La. Rev. Stat. § 9:2780.
[7] Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 204 (Tex. 2000).
[8] Id. at 205.
[9] See Texas Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184, 192 (Tex. 2008) (applying de novo
review to summary judgment); Texas Dept. of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (“We
review legal questions de novo.”).
[10] Maxus Exploration Co. v. Moran Bros., Inc., 817 S.W.2d 50, 53 (Tex. 1991); Restatement (Second) of
Conflict of Laws § 173 cmt. b (1971).
[11] Paragraph 24.7 of the Master Service Agreement states:
This Agreement and the legal relations among the parties hereto shall be governed and construed in
accordance with the general maritime law of the United States whenever any performance is contemplated in,
on, or above navigable waters, whether onshore or offshore. As respects particular Work involving non-
maritime operations in the State of New Mexico, the State of Texas or offshore of the State of Texas, the
internal laws of the State of Texas, without regard to principles of conflicts of law, shall apply in the even that
maritime law is held inapplicable.
[12] Louisiana law shields a “statutory employer” from tort liability. See La. Rev. Stat. § 23:1061.
[13] 202 S.W.3d 901, 909–10.
[14] Restatement (Second) of Conflict of Laws § 187 cmt. a (1971).
[15] See Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000).
[16] Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (stating that fair notice
requirements applicable to indemnities include a conspicuousness requirement “that something must appear
on the face of the [contract] to attract the attention of a reasonable person when he looks at it”) (quoting Ling
& Co. v. Trinity Sav. & Loan Ass’n, 482 S.W.2d 841, 843 (Tex. 1972)).
[17] Restatement (Second) of Conflict of Laws § 187 cmt. e (1971).
[18] Id. § 188(1).
[19] Id. § 188(1)–(2); see Maxus Exploration Co. v. Moran Bros., Inc., 817 S.W.2d 50, 53 (Tex. 1991).
[20] Restatement (Second) of Conflict of Laws § 188(2) (1971).
[21] Id. § 188 cmt. e (“[T]he place of contracting is the place where occurred the last act necessary, under the
forum’s rules of offer and acceptance, to give the contract binding effect . . . .”).
[22] Id. (“Standing alone, the place of contracting is a relatively insignificant contact.”); id. (“The place where
the parties negotiate . . . is of less importance when there is no one single place of negotiation and
agreement, as, for example, when the parties do not meet but rather conduct their negotiations from separate
states by mail or telephone.”).
[23] Id. (“When the contract deals with a specific physical thing, such as land or a chattel, or affords protection
against a localized risk, such as the dishonesty of an employee in a fixed place of employment, the location of
the thing or of the risk is significant.”) (citation omitted).
[24] Id. (“At least with respect to most issues, a corporation’s principal place of business is a more important
contact than the place of incorporation, and this is particularly true in situations where the corporation does
little, or no, business in the latter state.”).
[25] Id. § 188 cmt. c (“So the state where a party to the contract is domiciled has an obvious interest in the
application of its contract rule designed to protect that party against the unfair use of superior bargaining
power.”); see also Roberts v. Energy Dev. Corp., 235 F.3d 935, 943 (5th Cir. 2000) (disregarding parties’
choice of Texas law and applying Louisiana law to void indemnity as that was place of business of oilfield
contractor); Chesapeake Operating, Inc. v. Nabors Drilling USA, Inc., 94 S.W.3d 163, 177–78 (Tex. App.—
Houston [14th Dist.] 2002, no pet.); cf. Maxus Exploration Co. v. Moran Bros., Inc., 817 S.W.2d 50, 57 (Tex.
1991) (“One can argue that the Texas Legislature’s purpose in enacting chapter 127 is to protect Texas
contractors who work on mineral wells and mines wherever they may be situated, but we think it more
plausible that it had the more limited objective of protecting contractors who drill wells in Texas.”) (emphasis
omitted).
[26] 202 S.W.3d 901, 906, 909.
[27] 817 S.W.2d 50, 53 (Tex. 1991).
[28] Id.; see Restatement (Second) of Conflict of Laws § 196 cmt. c (1971).
[29] 817 S.W.2d at 54; see Chesapeake, 94 S.W.3d at 171-72 (“Nabors’ claim in both cases is for liability and
legal services incurred in Texas, not for drilling services performed in Louisiana. Considering only the
particular issue in dispute, the place of performance of that obligation was in Texas.”); Restatement (Second)
of Conflict of Laws § 188(1) (1971) (“The rights and duties of the parties with respect to an issue in contract
are determined by the local law of the state which, with respect to that issue, has the most significant
relationship to the transaction and the parties . . . .”) (emphasis added).
[30] Restatement (Second) of Conflict of Laws § 196 cmt. a (1971) (emphasis added).
[31] Id. § 196 cmt. c (“Several factors serve to explain the importance attributed by the rule to the place where
the contract requires that the services, or a major portion of the services, be rendered. The rendition of the
services is the principal objective of the contract, and the place where the services, or a major portion of the
services, are to be rendered will naturally loom large in the minds of the parties.”).
[32] Id. § 6(2) (“[T]he factors relevant to the choice of the applicable rule of law include (a) the needs of the
interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other
interested states and the relative interests of those states in the determination of the particular issue, (d) the
protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty,
predictability and uniformity of result, and (g) ease in the determination and application of the law to be
applied.”).
[33] Id. § 188 cmt. b; see id. § 6(2)(d)–(e).
[34] Id. § 188 cmt. b; see id. § 6(2)(e); see also Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d
653, 664 (Tex. 2008) (noting state’s “paramount” public policy that “contracts when entered into freely and
voluntarily shall be held sacred and shall be enforced by [c]ourts of justice”).
[35] See Restatement (Second) of Conflict of Laws § 6(2)(a), (f) (1971); Chesapeake, 94 S.W.3d at 177.
[36] Restatement (Second) of Conflict of Laws § 188 cmt. b (1971); see DeSantis v. Wackenhut Corp., 793 S.
W.2d 670, 677 (Tex. 1990).
[37] See, e.g., Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 670 (Tex. 2008).
[38] See Restatement (Second) of Conflict of Laws § 187 cmt. e (1971) (“On occasion, the parties may
choose a law that would declare the contract invalid. In such situations, the chosen law will not be applied by
reason of the parties’ choice. To do so would defeat the expectations of the parties which it is the purpose of
the present rule to protect . . . . If the parties have chosen a law that would invalidate the contract, it can be
assumed that they did so by mistake.”); id. § 188 cmt. b (“Parties entering a contract will expect at the very
least, subject perhaps to rare exceptions, that the provisions of the contract will be binding upon them.”).
[39] See La. Rev. Stat. § 9:2780.
[40] Tex. Civ. Prac. & Rem. Code § 127.005(b).
[41] DeSantis, 793 S.W.2d at 677; Chesapeake Operating, Inc. v. Nabors Drilling USA, Inc., 94 S.W.3d 163,
180 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“Because these sophisticated parties drafted a contract
to meet Texas law, and deemed it to apply, we believe they should have what they bargained for.”);
Restatement (Second) of Conflict of Laws § 187 (1971).
[42] DeSantis, 793 S.W.2d at 677 (“[I]n every forum, a contract is governed by the law with a view to which it
was made.”) (quoting Wayman v. Southard, 23 U.S. 1, 48 (1825)); see Restatement (Second) of Conflict of
Laws § 188 cmt. b (1971).
[43] Tex. R. App. P. 53.2(f) (“If the matter complained of originated in the trial court, it should have been
preserved for appellate review in the trial court and assigned as error in the court of appeals.”); see, e.g., Pat
Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.
1993).
[44] In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006).
[45] Id. at 724 (“That different legal theories may be asserted to defend those funds does not defeat the
identity of interest between Lumbermens and Cudd that the insuring contract creates and the virtual-
representation doctrine protects.”).
[46] Pat Baker Co., 971 S.W.2d at 450; Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 92 (Tex. 1973).
[47] Ex parte Elliot, 815 S.W.2d 251, 251 (Tex. 1991); Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.
W.2d 160, 166 (Tex. 1982).
[48] Ex parte Elliot, 815 S.W.2d at 252.
[49] In re Lumbermens, 184 S.W.3d at 723 (“Lumbermens contends the court of appeals abused its discretion
in rejecting Lumbermens’ intervention because, as Cudd’s insurer and the party that posted the appellate
security, Lumbermens is bound by the judgment in the case.”).
[50] See Tex. R. Civ. P. 38(c) (prohibiting direct actions in tort against insurer); Tex. R. Civ. P. 51(b) (same).
[51] Angus Chem. Co. v. IMC Fertilizer, Inc., 939 S.W.2d 138, 139 (Tex. 1997).
[52] In re Lumbermens, 184 S.W.3d at 725 (“Lumbermens has pledged $29 million to secure the judgment in
Sonat’s favor. Even if Lumbermens could eventually recoup the amount it has pledged through a potential
coverage suit against Cudd, its obligation to pay the underlying judgment to Sonat is immediate and binding in
the event Cudd’s appeal is unsuccessful.”).
[53] See Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); see, e.g., Plas-Tex, Inc. v. U.S.
Steel Corp., 772 S.W.2d 442, 447 (Tex. 1989) (holding indemnity claim between defendants had to be retried
as it depended on outcome of negligence case against indemnitor); Turner, Collie & Braden, Inc. v.
Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982) (same); see also Torrington Co. v. Stutzman, 46 S.W.3d
829, 844 (Tex. 2000) (holding defendant/indemnitor who would have to pay second defendant/indemnitee’s
judgment was entitled to appeal that judgment).
[54] In re Lumbermens, 184 S.W.3d at 728 (“[I]f Lumbermens is not permitted to intervene and the choice-of-
law issue is meritorious, Cudd will have essentially foisted liability for uninsured claims onto its insurer.”).
[55] See State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 713 (Tex. 1996) (invalidating assignment of
bad faith claims on public policy grounds when insured abandoned its natural position in order to take
advantage of insurer); see also GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 311
(Tex. 2006) (declining to adopt true-facts exception to eight-corners rule as record showed no evidence of
collusive pleading).
[56] La. Rev. Stat. § 9:2780(B) (emphasis added).
[57] Tanksley v. Gulf Oil Corp., 848 F.2d 515, 518 (5th Cir. 1988).
[58] Ridings v. Danos & Curole Marine Contractors, Inc., 723 So.2d 979, 983 (La. App. 4 Cir. 1998); Phillips
Petroleum Corp. v. Liberty Servs., Inc., 657 So.2d 405, 409 (La. App. 3 Cir. 1995).
[59] Roberts v. Energy Dev. Corp., 235 F.3d 935, 944 (5th Cir. 2000)