Petition for Writ of Certiorari — Indian Harbor Insurance Company, et al., Petitioners v. Town of Vinton, Louisiana, et al.

Supreme Court briefJun 11, 2026

Ask Donna

What actually matters in this document.

Text

APPENDIX

TABLE OF CONTENTS

Appendix A

Court of appeals opinion,

December 8, 2025 .................... 1a

Appendix B

Memorandum ruling denying

motion to dismiss (22-cv-5280),

November 4, 2024 .................. 12a

Appendix C

Memorandum order denying

motion to compel arbitration

and stay proceedings

(22-cv-5283),

November 4, 2024 .................. 17a

Appendix D

Memorandum ruling denying

motion to dismiss (22-cv-5286),

November 4, 2024 .................. 27a

Appendix E

Memorandum order denying

motion to compel arbitration

and stay proceedings

(22-cv-5287),

November 4, 2024 .................. 32a

Appendix F

Memorandum ruling denying

motion to dismiss (22-cv-5345),

November 4, 2024 .................. 42a

Appendix G

Memorandum order denying

motion to compel arbitration

and stay proceedings

(22-cv-5348),

November 4, 2024 .................. 47a

Appendix H

Memorandum order denying

motion to compel arbitration

and stay proceedings

(23-cv-240),

December 14, 2023 ................ 57a

Appendix I

Court of appeals order denying

petition for rehearing en banc,

January 12, 2026 ................... 78a

Appendix J

Chapter 2, Federal Arbitration

Act, 9 U.S.C. §§ 201–208 ....... 83a

Appendix K

The Convention on the

Recognition and Enforcement of

Foreign Arbitral Awards

(New York Convention),

Articles II(1)-(2), XI(a)........... 86a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-30035

TOWN OF VINTON,

Plaintiff—Appellee,

versus

INDIAN HARBOR INSURANCE COMPANY; LEXINGTON

INSURANCE COMPANY; QBE SPECIALTY INSURANCE

COMPANY; STEADFAST INSURANCE COMPANY; UNITED

SPECIALTY INSURANCE COMPANY; GENERAL SECURITY

INDEMNITY COMPANY OF ARIZONA; OLD REPUBLIC

UNION INSURANCE COMPANY; SAFETY SPECIALTY

INSURANCE COMPANY,

Defendants—Appellants,

CONSOLIDATED WITH

No. 24-30748

POLICE JURY OF CAMERON PARISH,

Plaintiff—Appellee,

versus

INDIAN HARBOR INSURANCE COMPANY; QBE

SPECIALTY INSURANCE COMPANY; STEADFAST

INSURANCE COMPANY; GENERAL SECURITY INDEMNITY

COMPANY OF ARIZONA; UNITED SPECIALTY INSURANCE

COMPANY; LEXINGTON INSURANCE COMPANY; SAFETY

SPECIALTY INSURANCE COMPANY; OLD REPUBLIC

UNION INSURANCE COMPANY,

Defendants—Appellants,

CONSOLIDATED WITH

No. 24-30749

CAMERON PARISH RECREATION #6,

Plaintiff—Appellee,

versus

INDIAN HARBOR INSURANCE COMPANY; QBE

SPECIALTY INSURANCE COMPANY; GENERAL SECURITY

INDEMNITY COMPANY OF ARIZONA; UNITED SPECIALTY

INSURANCE COMPANY; LEXINGTON INSURANCE

COMPANY; SAFETY SPECIALTY INSURANCE COMPANY;

OLD REPUBLIC UNION INSURANCE COMPANY

Defendants—Appellants,

CONSOLIDATED WITH

No. 24-30750

CERTAIN UNDERWRITERS AT LLOYDS LONDON,

SUBSCRIBING TO POLICY NO AMR-60898-02; INDIAN

HARBOR INSURANCE COMPANY; QBE SPECIALTY

INSURANCE COMPANY; GENERAL SECURITY INDEMNITY

COMPANY OF ARIZONA; UNITED SPECIALTY INSURANCE

COMPANY; LEXINGTON INSURANCE COMPANY; SAFETY

SPECIALTY INSURANCE COMPANY; HDI GLOBAL

SPECIALTY SE; OLD REPUBLIC UNION INSURANCE

COMPANY,

Plaintiffs—Appellants,

versus

CAMERON PARISH RECREATION #6,

Defendant—Appellee,

CONSOLIDATED WITH

No. 24-30751

CERTAIN UNDERWRITERS AT LLOYDS LONDON,

SUBSCRIBING TO POLICY NO AMR-42386-05; INDIAN

HARBOR INSURANCE COMPANY; QBE SPECIALTY

INSURANCE COMPANY; STEADFAST INSURANCE

COMPANY; GENERAL SECURITY INDEMNITY COMPANY

OF ARIZONA; UNITED SPECIALTY INSURANCE COMPANY;

LEXINGTON INSURANCE COMPANY; SAFETY SPECIALTY

INSURANCE COMPANY; HDI GLOBAL SPECIALTY SE;

OLD REPUBLIC UNION INSURANCE COMPANY,

Plaintiffs—Appellants,

versus

POLICE JURY OF CAMERON PARISH,

Defendant—Appellee,

CONSOLIDATED WITH

No. 24-30756

SCHOOL BOARD OF CAMERON PARISH,

Plaintiff—Appellee,

versus

INDIAN HARBOR INSURANCE COMPANY; QBE

SPECIALTY INSURANCE COMPANY; STEADFAST

INSURANCE COMPANY; GENERAL SECURITY INDEMNITY

COMPANY OF ARIZONA; UNITED SPECIALTY INSURANCE

COMPANY; LEXINGTON INSURANCE COMPANY; SAFETY

SPECIALTY INSURANCE COMPANY; OLD REPUBLIC

UNION INSURANCE COMPANY,

Defendants—Appellants,

CONSOLIDATED WITH

No. 24-30757

CERTAIN UNDERWRITERS AT LLOYDS LONDON,

SUBSCRIBING TO POLICY NO AMR-41923-05; INDIAN

HARBOR INSURANCE COMPANY; QBE SPECIALTY

INSURANCE COMPANY; STEADFAST INSURANCE

COMPANY; GENERAL SECURITY INDEMNITY COMPANY

OF ARIZONA; UNITED SPECIALTY INSURANCE COMPANY;

LEXINGTON INSURANCE COMPANY; SAFETY SPECIALTY

INSURANCE COMPANY; HDI GLOBAL SPECIALTY SE;

OLD REPUBLIC UNION INSURANCE COMPANY,

Plaintiffs—Appellants,

versus

SCHOOL BOARD OF CAMERON PARISH

Defendant—Appellee.

Appeals from the United States District Court

for the Western District of Louisiana

USDC Nos. 2:23-CV-240, 2:22-CV-5348,

2:22-CV-5287, 2:22-CV-5286,

2:22-CV-5345, 2:22-CV-5283,

2:22-CV-5280

Before HAYNES, HO, and OLDHAM, Circuit Judges.

JAMES C. HO, Circuit Judge:

A group of insurance companies seek to compel a

Louisiana town to arbitrate a dispute, even though

Louisiana law expressly prohibits arbitration

agreements for insurance contracts covering property

located in the state.

Vinton, a town in Calcasieu Parish, entered into

an insurance policy with a group of foreign and

American insurers. After initially suing the entire

group of insurers in Louisiana state court for breach

of contract, Vinton dismissed the foreign insurers

with prejudice. The court granted that motion.

The remaining American insurers then removed

the case to the Western District of Louisiana and filed

a motion to compel arbitration pursuant to the

arbitration agreement in the contract. The district

court denied the American insurers’ motion to compel

arbitration based on Louisiana law.

The American insurers argue that the court was

required to compel arbitration by the Convention on

the Recognition and Enforcement of Foreign Arbitral

Awards. But the Convention applies only when a

foreign citizen is a party to the arbitration agreement.

There is no foreign party to any arbitration agreement

at issue in this case. An endorsement in the insurance

contract here states that the insurance policy is to be

treated as a “separate contract” between the insured

and each of the insurers.

Numerous courts have concluded in similar

contexts that such terms are sufficient to create

separate agreements to arbitrate from one arbitration

clause. We agree. Because the foreign insurers are no

longer parties, there is no foreign party to any

agreement to arbitrate in this case. Accordingly, the

district court was correct to apply Louisiana law

instead of the Convention. We affirm.

Vinton, a town in Calcasieu Parish, purchased a

surplus line insurance policy—insurance for unique

risks. That policy brought in numerous foreign and

domestic insurance companies. The Declaration Page

notes that “[the] Policy consists of . . . coverage parts”

which each have their own policy numbers and

premiums. But they combine to form one overarching

policy.

This policy contains an arbitration agreement

with a delegation clause. It requires that “[a]ll

matters in difference between the Insured and the

Companies . . . in relation to this insurance, including

its formation and validity, and whether arising during

or after the period of this insurance, shall be referred

to an Arbitration Tribunal in the manner hereinafter

set out.” There are also overriding endorsements that

modify the contract. Of particular note here, the

Contract Allocation Endorsement states that each

“contract shall be constructed as a separate contract

between the Insured and each of the Underwriters.”

Vinton sued the foreign and domestic insurers in

Louisiana state court for breach of contract. Vinton

then dismissed the foreign insurers with prejudice.

The American insurers removed the case to the

Western District of Louisiana. There, they moved to

compel arbitration and stay the district court

proceedings under the Convention and the Federal

Arbitration Act (FAA).

The district court denied their motion. The court

determined that the agreement consisted of separate

contracts between each insurer and Vinton. Because

the two foreign insurers were dismissed with

prejudice, the lack of foreign parties meant that the

Convention did not apply. Additionally, the court held

that the Convention did not compel arbitration under

a theory of equitable estoppel.

The American insurers appealed. Meanwhile, the

same district court in a different insurance arbitration

case certified several questions to the Louisiana

Supreme Court. A panel of this court held the case in

abeyance while the Louisiana Supreme Court

answered the certified questions. The Louisiana

Supreme Court concluded state law prohibits

arbitration clauses in insurance agreements and

applies to municipalities, and it held equitable

estoppel did not apply. See Police Jury of Calcasieu

Par. V. Indian Harbor Ins. Co., 2024-00449, p. 5–17

(La. 10/25/24), 395 So. 3d 717, 722–30.

We review motions to compel arbitration de novo.

Bufkin Enter. V. Indian Harbor Ins. Co., 96 F.4th 726,

729 (5th Cir. 2024).

II.

The American insurers advance three arguments

on appeal. First, they argue that the district court

erred by failing to compel arbitration under the

Convention. Second, they argue that even if the

Convention does not apply facially, it should instead

be applied through equitable estoppel. Third, they

argue that the delegation clause in the arbitration

agreement directs the court to compel arbitration. We

address each in turn.

The Convention requires courts to compel

arbitration at the request of a party if the parties have

made an arbitration agreement that falls within the

Convention’s scope. 21 U.S.T. 2517 art. II(3). The

Convention is implemented through Chapter 2 of the

Federal Arbitration Act. The Act states that an “action

or proceeding falling under the Convention shall be

deemed to arise under the laws and treaties of the

United States.” 9 U.S.C. § 203.

We will apply the Convention where (1) there is

an agreement in writing to arbitrate the dispute,

(2) the agreement provides for arbitration in the

territory of a convention signatory, (3) the agreement

arises out of a commercial legal relationship, and (4) a

party to the agreement is not an American citizen.

Francisco v. Stolt Achievement MT, 293 F.3d 270, 273

(5th Cir. 2002) (cleaned up).

The only issue here is whether any party to the

agreement is not an American citizen. Ten insurers

signed the overarching contract, including two foreign

insurers. Vinton initially sued all ten, but later

dismissed the two foreign insurers with prejudice. So,

the question on appeal is whether the arbitration

agreement is governs Vinton and all ten insurers

collectively, or between Vinton and each insurer

separately.

We start and end with the text of the contract. The

Contract Allocation Endorsement states that “[t]his

contract shall be constructed as a separate contract

between the Insured and each of the Underwriters.”

Numerous courts have concluded that similar

“separate contracts” language creates separate

agreements to arbitrate from one arbitration clause.

See Stonelake Condo. Ass’n v. Certain Underwriters at

Lloyd’s, 726 F.Supp.3d 639, 647 (M.D. La. 2024)

(collecting cases). We see no basis for departing from

that consensus.

The American insurers argue that the text of the

arbitration clause suggests that the overall policy is

still one arbitration agreement. They note that the

agreement refers to the “companies” collectively, and

claim that this suggests that the arbitration clause is

part of a single overall contract.

But even if we were to agree that the text of the

arbitration clause conflicts with the text of the

Contract Allocation Endorsement, the result is the

same. We have held that “if a conflict between [an]

endorsement and the policy exist, the endorsement

prevails.” Bennett v. Hartford Ins. Co. of Midwest, 890

F.3d 597, 605 (5th Cir. 2018). This result is further

reinforced by the canon of contra proferentem—any

textual ambiguity in a contract is generally construed

against the drafter. See Weir v. Fed. Asset Disposition

Ass’n, 123 F.3d 281, 286 (5th Cir. 1997).

Because there are no foreign parties to the

arbitration agreement in this case, the Convention

does not apply.

The American insurers argue in the alternative

that arbitration should be compelled under the

Convention through equitable estoppel. State contract

law determines whether a contract can be enforced by

or against nonparties using equitable estoppel. Arthur

Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009).

The American insurers rely on Bufkin

Enterprises, L.L.C. v. Indian Harbor Insurance

10a

Company, 96 F.4th 726, 729–33 (5th Cir. 2024), to

argue that this court should compel arbitration

through equitable estoppel. Bufkin held that

equitable estoppel is appropriate under Louisiana law

to compel arbitration under the Convention even if the

policy was several separate contracts. Id. at 730–32.

Where

signatory

alleges

substantially

“interdependent and concerted conduct by both [a]

non-signatory and one or more of the signatories” to a

contract with an arbitration clause, the non-signatory

may compel arbitration with a signatory. Id. at 730

(citing Pontchartrain Nat. Gas Sys. V. Tex. Brine Co.,

2018-1249 p. 36–39 (La. App. 1 Cir. 12/30/20), 317

So. 3d 715, 743–45).

The American insurers argue that the present

case mirrors Bufkin because Vinton has alleged

substantially interdependent and concerted conduct

by the domestic and foreign insurers. Thus, according

to the American insurers, as non-signatories they can

compel arbitration through estoppel under Vinton’s

arbitration agreement with the foreign insurers.

But the Louisiana Supreme Court has now held

that Bufkin’s “conclusion [is] flawed and not

supported by Louisiana law.” Police Jury, 395 So. 3d

at 729.

Police Jury explained that La. R.S. 22:868 applies

and “prohibits the use of arbitration clauses in

Louisiana-issued insurance policies.” Id. And because

equitable estoppel cannot contravene Louisiana

positive law, La. R.S. 22:868 precludes the use of

estoppel to compel arbitration here. Id.

The American insurers theorize that Police Jury

is irrelevant because Bufkin is based on federal law,

and does not turn on state law principles of equitable

11a

estoppel. But that badly misreads Bufkin, which

expressly relies on Louisiana courts and federal courts

applying Louisiana law. See Bufkin Enter. V. Indian

Harbor Ins. Co., 96 F.4th 726, 730 (5th Cir. 2024)

(citing Pontchartrain Nat. Gas Sys. V. Tex. Brine Co.,

2018-1249 p. 36–39 (La. App. 1 Cir. 12/30/20), 317 So.

3d 715, 743–45).

Finally, the American insurers argue that the

arbitration agreement’s delegation clause requires

the court to refer the claim to arbitration to allow the

arbitrator to decide whether the arbitration

agreement is enforceable. This puts the cart before the

horse. Before applying a delegation clause, we first

determine whether the parties have a valid

arbitration agreement. See Kubala v. Supreme Prod.

Servs., Inc., 830 F.3d 199, 202 (5th Cir. 2016). So

“[w]hen a statute prevents the valid formation of an

arbitration agreement . . . we cannot compel

arbitration, even on threshold questions of

arbitrability.” S.K.A.V. v. Indep. Specialty Ins. Co.,

103 F.4th 1121, 1125 (5th Cir. 2024). State law

prevents the valid formation of an arbitration

agreement here. See Police Jury, 395 So. 3d at 728.

* * *

We affirm.

12a

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

CERTAIN UNDERWRITERS AT

LLOYDS LONDON

ET AL

CASE NO. 2:22-CV05280

VERSUS

JUDGE JAMES D.

CAIN, JR.

SCHOOL BOARD OF

CAMERON PARISH

MAGISTRATE JUDGE

LEBLANC

MEMORANDUM RULING

Before the court is a Motion to Dismiss [doc. 11]

filed by defendant School Board of Cameron Parish

(“SBCP”) under Federal Rule of Civil Procedure

12(b)(5). Plaintiffs Certain Underwriters at Lloyds

London Subscribing to Policy No AMR-42386-05, General Security Indemnity Company of Arizona, H D I

Global Specialty S E, Indian Harbor Insurance Company, Lexington Insurance Company, Old Republic

Union Insurance Company, Q B E Specialty Insurance Company, Safety Specialty Insurance Company,

Steadfast Insurance Company, and United Specialty

Insurance Company oppose the motion. Doc. 13.

BACKGROUND

This suit arises from damage to SBCP’s property

in Hurricane Laura. At all relevant times the property

was insured under a surplus lines policy issued by the

13a

plaintiff insurers in this matter. SBCP filed suit in

state court in a related case against only the domestic

insurers, in an attempt to evade enforceability of the

policy’s arbitration clause under the Convention on

the Recognition and Enforcement of Foreign Arbitral

Awards (“Convention”).1 The matter was removed to

this court on September 19, 2022. See Sch. Bd. of

Cameron Par. V. Indian Harbor Ins. Co., No. 2:22-cv5283 (W.D. La.). On the same day both the domestic

and foreign insurers subscribing to the policy filed a

complaint to compel arbitration and stay litigation

against SBCP. Doc. 1.

In the related case, the insurers filed a motion to

compel arbitration and stay proceedings. Sch. Bd. of

Cameron Par., No. 2:22-cv-5283 (W.D. La.), at doc. 7.

SBCP requested an extension of briefing deadlines

and leave to conduct discovery, which the court

granted but ultimately limited to a deadline of April

14, 2023. Id. at doc. 35. The insurers appealed and the

Fifth Circuit determined that no discovery was

needed. Id. at doc. 42. Accordingly, the matter was remanded to the undersigned to rule on the pending

motions. Id. The undersigned has denied that motion,

finding based on a recent ruling of the Louisiana Supreme Court that the domestic insurers may not use

the doctrine of equitable estoppel to enforce the arbitration agreements in their contracts under the

Convention. As part of the briefing on that motion,

1 If the policy is only enforceable through the Federal Arbitration

Act, it is reverse-preempted by Louisiana Revised Statutes

22:868(A)(2), which bars arbitration clauses in insurance policies. S.K.A.V., LLC v. Indep. Specialty Ins. Co., 103 F.4th 1121

(5th Cir. 2024). If the Convention applies, however, then state

law has no impact. McDonnel Grp., LLC v. Great Lakes Ins. SE,

UK Branch, 923 F.3d 427, 430–32 (5th Cir. 2019).

14a

SBCP asserted—and the insurers did not dispute—

that it had released its claims against the foreign insurers.

Meanwhile, in this matter, a summons was issued

on September 20, 2022. Doc. 2. The clerk issued a notice of intent to dismiss for failure to effect service on

May 4, 2023, but the same was withdrawn as “Issued

in Error”. Docs. 6, 7. The clerk again issued a Notice

of Intent to Dismiss on July 19, 2024. Doc. 9. The insurers then filed their return of service on July 25,

2024. Doc. 10. On August 13, 2024, SBCP filed the instant motion to dismiss under Federal Rule of Civil

Procedure 12(b)(5). Doc. 11. The insurers oppose the

motion, arguing that good cause exists to excuse their

late service. Doc. 13.

II.

LAW & APPLICATION

A. Legal Standards

Federal Rule of Civil Procedure 4 provides the

proper means of service for actions filed in federal

court, and Rule 4(m) specifies that a complaint must

be served on the opposing party within 90 days of its

filing. Absent valid service of process, “proceedings

against a party are void.” Aetna Bus. Credit, Inc. v.

Universal Décor & Interior Design, 635 F.2d 434, 435

(5th Cir. 1981). Accordingly, Rule 12(b)(5) allows for

dismissal of an action based on insufficient service of

process. Luv N’ Care, Ltd. v. Groupo Rimar, 2014 WL

6982499, at *3 (W.D. La. Dec. 9, 2014) (citing 5B

CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 1353

(3d ed. 2013)). On such a motion, the serving party

bears the burden of proof. Aetna Bus. Credit, 635 F.3d

at 435.

15a

The district court has broad discretion in determining whether to dismiss an action for insufficient

service under Rule 12(b)(5). George v. U.S. Dep’t of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986). If the motion

relates to plaintiff’s failure to effect service within

Rule 4(m)’s time limit, the court must extend the time

to effect service for good cause shown. Pugh v. Bank of

America, 2017 WL 1427015, at *1 (E.D. La. Apr. 21,

2017) (citing Fed. R. Civ. P. 4(m)). If there is no good

cause shown, the court may at its discretion either dismiss the action without prejudice or grant an

extension. Id. (citing Thompson v. Brown, 91 F.3d 20,

21 (5th Cir. 1996)). In exercising this discretion courts

have also considered the potential prejudice, or lack

thereof, to defendant. See Tucker v. Unitech Training

Academy, Inc., 2016 WL 5678562, at *3 (E.D. La. Oct.

3, 2016) (collecting cases).

B. Application

The ninety-day period under Rule 4(m) expired

long ago. But this suit is effectively a nullity now,

given the undersigned’s ruling in the related case. The

insurers also argue that they surmised this matter

was effectively stayed by their appeal to the Fifth Circuit in the related case, until that court issued its

mandate in March 2024. The undersigned finds no

fault with this assumption, even though there was no

stay order. Based on the good cause shown and the

lack of prejudice to SBCP, the time to effect service

should be retroactively extended to July 25, 2024. Because the court has found in the related matter that

the domestic insurers may not avail themselves of equitable estoppel and because SBCP has released its

claims against the foreign insurers, this suit will be

dismissed.

16a

III.

CONCLUSION

For the reasons stated above, the Motion to Dismiss [doc. 11] will be DENIED. Judgment will be

entered for the defendant based on the court’s ruling

in the related case.

THUS DONE AND SIGNED in Chambers on the

4th day of November, 2024.

17a

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

SCHOOL BOARD OF

CAMERON PARISH

CASE NO. 2:22-CV05283

VERSUS

JUDGE JAMES D.

CAIN, JR.

INDIAN HARBOR INSURANCE CO ET AL

MAGISTRATE JUDGE

LEBLANC

MEMORANDUM ORDER

Before the court is a Motion to Compel Arbitration

and Stay Proceedings [doc. 7] filed by defendants General Security Indemnity Company of Arizona, Indian

Harbor Insurance Company, Lexington Insurance

Company, Old Republic Union Insurance Company,

QBE Specialty Insurance Company, Safety Specialty

Insurance Company, Steadfast Insurance Company,

and United Specialty Insurance Company (collectively, “domestic insurers” or “defendants”). Plaintiff

Cameron Parish School Board opposes the motion.

Doc. 44. The parties have also submitted supplemental briefs at the court’s request. Docs. 50, 51.

BACKGROUND

The suit arises from damage to property owned by

plaintiff in Hurricane Laura. At all relevant times the

property was insured under a surplus lines policy issued by the domestic insurers named above as well as

18a

foreign insurers Certain Underwriters at Lloyd’s,

London subscribing to Policy No. AMR-41923-05 (“Underwriters”) and HDI Global Specialty SE (“HDI

Global”) (collectively, “foreign insurers”). The policy

includes an arbitration clause requiring that “[a]ll

matters in difference . . . in relation to this insurance”

be submitted to arbitration in New York. Doc. 7, att.

3, p. 39. The policy also contains several service of suit

endorsements designating addresses for service and

providing that, in the event an insurer fails to pay any

amount claimed due under the policy, it “will submit

to the jurisdiction of a Court of competent jurisdiction

within the United States.” Id. at 63, 74, 81–84, 88.

Plaintiff filed suit against the domestic insurers

only in the 38th Judicial District Court, Cameron Parish, Louisiana, alleging that they failed to timely or

adequately pay for its covered losses. Doc. 1, att. 4.

Plaintiff asserts—and defendants do not dispute—

that it has released its claims against the foreign insurers. Doc. 44. Defendants removed the suit to this

court. Doc. 1. They maintain that the foreign insurers

cannot be omitted from this suit and that the arbitration agreement must be enforced pursuant to the

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (“Convention”). Accordingly,

they move the court to compel arbitration and stay

these proceedings. Doc. 7. Plaintiff opposes the motion, arguing that (1) the domestic insurers cannot

enforce the arbitration clause through the Convention

and the clause is unenforceable through the Federal

Arbitration Act (“FAA”) because it is “reversepreempted” under state law; (2) the clause is unenforceable because it was not signed by plaintiff; and

(3) the policy’s service-of-suit endorsements nullify

the arbitration agreement. Doc. 44. In its

19a

supplemental memorandum it maintains that the arbitration clause cannot be enforced through equitable

estoppel because it is contrary to Louisiana law. Doc.

50.

II.

LAW & APPLICATION

The Convention “is an international treaty that

provides citizens of signatory countries the right to enforce arbitration agreements.” Bufkin Enterps., LLC

v. Indian Harbor Ins. Co., 96 F.4th 726 (5th Cir. 2024).

Its purpose is “to encourage the recognition and enforcement of commercial arbitration agreements in

international contracts and to unify the standards by

which agreements to arbitrate are observed and arbitral awards are enforced by signatory countries.”

Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15

(1974). Under the Convention, a court must compel

arbitration if (1) there is a written agreement to arbitrate the matter; (2) the agreement provides for

arbitration in a signatory nation; (3) the agreement

arises out of a commercial legal relationship; and (4)

a party to the agreement is not an American citizen.

Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d

327, 339 (5th Cir. 2004). The present case is distinguished from the others, however. In this case there

are no foreign defendants, foreign insurers, or foreign

signatories who could ever be held liable to plaintiff to

pay any amount on any contract under this policy. The

contractual agreements with the domestic insurers

are expressly declared to be separate contracts. Because the agreements at issue in this matter are

“entirely between citizens of the United States,” they

“shall be deemed not to fall under the Convention.” 9

U.S.C. § 202.

20a

The Fifth Circuit recently held that domestic insurers may enforce an arbitration agreement in such

a policy under the doctrine of equitable estoppel if

they can show that the claims arise from “substantially interdependent and concerted conduct” by both

the domestic and foreign insurers. Bufkin Enterps.,

LLC, 96 F.4th at 731. However, the United States Supreme Court has recognized that courts must apply

ordinary state law principles in determining whether

parties agreed to arbitrate. First Options of Chicago,

Inc. v. Kaplan, 514 U.S. 938, 944 (1995); see also Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630

(2009) (recognizing that “background principles of

state contract law” govern who is bound by an arbitration agreement). The Fifth Circuit has followed suit,

applying state law in determining equitable estoppel

under Grigson v. Creative Artists Agency, LLC, 210

F.3d 524 (5th Cir. 2000). See Newman v. Plains All

American Pipeline, LP, 23 F.4th 393, 404–05 (5th Cir.

2022). In Bufkin, the Fifth Circuit made an Erie guess

referencing a Louisiana appellate court decision and

various Eastern District of Louisiana opinions that

equitable estoppel would apply under state law. Since

that time, however, the Louisiana Supreme Court has

rejected that guess. Police Jury of Calcasieu Par. V.

Indian Harbor Ins. Co., No. 2024-CQ-00449, slip op.

at 6–10 (La. Oct. 25, 2024).

Defendants next argue that the matter is governed by the Convention without reference to

estoppel, and that estoppel is irrelevant at any rate

because Louisiana law does not prohibit arbitration

clauses in surplus lines policies. Doc. 51. Both arguments are refuted by recent case law. In Bufkin, the

Fifth Circuit did not reach the insurers’ argument

that they had “one overarching policy agreement to

21a

which all the insurers were parties” and instead focused on the dispositive issue of whether equitable

estoppel applied, assuming arguendo that the policies

were separate. 96 F.4th at 729–30. There was good

reason for the assumption. As this court noted in the

ruling on appeal, the Declarations Page listed individual policy numbers and provided under the Contract

Allocation Endorsement:

This contract shall be constructed as a separate contract between the Insured and each of

the Underwriters. This evidence of coverage

consists of separate sections of a composite insurance for all Underwriter’s at Lloyd’s

combined and separate policies issued by the

insurance company(ies), all as identified below. This evidence of coverage does not

constitute in any manner or form a joint certificate of coverage by Underwriter’s at

Lloyd’s with any other insurance company(ies).

Bufkin Enterps. LLC v. Indian Harbor Ins. Co., 2023

WL 2393700, at *2 (W.D. La. Mar. 7, 2023). The same

endorsement also provided:

The liability of each Underwriter on this contract with the Insured is limited to the

participation amount shown in the schedule

below. The liability of each separate contract

listed and for each Underwriter represented

thereby for any loss or losses or amounts payable is several as to each and shall not exceed

its participation percentage shown below and

there is no joint liability of any Underwriters

pursuant to this contract. An Underwriter

shall not have its liability hereunder

22a

increased or decreased by reason of failure or

delay of another Underwriter, its successors,

assigns, or legal representatives. Any loss otherwise payable under the provisions of the

attached policy that exceeds the allocation of

“Risk” as defined herein shall be bourne proportionately by the contracts as to their limit

of liability at the time and place of the loss

bears to the total allocated limits herein.

Id. Examining identical terms, Judge Lemmon of the

Eastern District of Louisiana concluded that even

though there was only one policy document, the Contract Allocation Endorsement created a separate

contract between plaintiff and each insurer. Port

Cargo Service, LLC v. Certain Underwriters at Lloyd’s

London, 2018 WL 4042874, at *3 (E.D. La. Aug. 24,

2018). As Judge Lemmon noted, insurance policies are

contracts that must “be interpreted in accordance

with the intent of the parties as written” and “[t]he

policy language, which is the law between the parties,

specifies that the plaintiffs have separate insurance

contracts with each of the insurers.” Id. She therefore

held that the Convention only applied to the domestic

insurers through the doctrine of equitable estoppel.

Id. This court followed suit but determined that equitable estoppel did not apply, a finding reversed by the

Fifth Circuit in Bufkin, supra. Nothing, however, has

disturbed the district court reasoning as to the separate nature of the contracts.

As to whether the applicability of the Convention

makes a difference, the Fifth Circuit recently made its

Erie guess and affirmed this court’s holding that La.

R.S. 22:868 voids an arbitration provision in a surplus

lines policy. S.K.A.V., LLC v. Indep. Specialty Ins. Co.,

23a

103 F.4th 1121 (5th Cir. 2024). That statute provides,

in relevant part:

A. No insurance contract delivered or issued

for delivery in this state and covering subjects

located, resident, or to be performed in this

state, or any group health and accident policy

insuring a resident of this state regardless of

where made or delivered, shall contain any

condition, stipulation, or agreement either ...

(2) Depriving the courts of this state of the jurisdiction or venue of action against the

insurer....

D. The provisions of Subsection A of this Section shall not prohibit a forum or venue

selection clause in a policy form that is not

subject to approval by the Department of Insurance.

La. Rev. Stat. 22:868. As the Fifth Circuit observed,

“Louisiana caselaw still regard[s] arbitration clauses

as a qualitatively different type of forum-selection

clause, at least for the purposes of § 22:868, because

they [have] jurisdictional import and thus still [fall]

under the prohibition of (A)(2).” S.K.A.V., LLC, 103

F.4th at 1124. Accordingly, it held that subsection

(D)’s exemption for “forum or venue selection

clause[s]” in surplus line policies did not apply to arbitration clauses and that arbitration clauses were

prohibited even within such policies under Louisiana

law. Thereafter, the Louisiana Supreme Court removed any doubt and endorsed this view in response

24a

to the undersigned’s certified question.1 Police Jury of

Calcasieu Par., supra, slip op. at 6–10.

Under the McCarran-Ferguson Act, state laws

regulating insurance are shielded from the preemptive effect of federal law. 15 U.S.C. §§ 1011, 1012.

McCarran-Ferguson thus allows state laws like Louisiana Revised Statutes 22:868(A)(2) to “reversepreempt” the Federal Arbitration Act’s provisions on

the enforceability of insurance agreements. See, e.g.,

Am. Bankers Ins. Co. of Fla. V. Inman, 436 F.3d 490

(5th Cir. 2006). However, this reverse preemption applies only to “Acts of Congress,” which do not

encompass treaties. Safety Nat’l Cas. Corp. v. Certain

Underwriters at Lloyd’s, London, 587 F.3d 714, 731–

32 (5th Cir. 2009). In other words, if the Convention

applies then state law (including Louisiana Revised

Statutes 22:868) has no impact. Id. If, on the other

hand, the court finds that equitable estoppel does not

apply and that the domestic insurers can only enforce

the arbitration clause through the Federal Arbitration

Act, then § 22:868(A)(2) reverse-preempts federal law

and invalidates the arbitration clause.

In response to the court’s supplemental briefing

order, plaintiff argues that equitable estoppel cannot

be applied because (1) the arbitration clause is contrary to explicit prohibitory state laws and (2)

defendants do not meet the heightened standard

1 The United States Supreme Court has recognized that certifi-

cation of unsettled questions to a state’s highest court is

preferable because the “federal court may save ‘time, energy, and

resources and help build a cooperative judicial federalism.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997)

(quoting Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974))

(cleaned up).

25a

required to invoke equitable estoppel against a governmental entity under Louisiana law.2 See Showboat

Star P’ship v. Slaughter, 789 So.2d 554, 561–62 (La.

2001). Defendants maintain that the only proper consideration for equitable estoppel is whether they “may

avail themselves of the arbitration provision because

they are accused of engaging in substantially interdependent and concerted conduct with a signatory” the

intertwined claims test used in Bufkin. But in response to the undersigned’s certified question, the

Louisiana Supreme Court also determined that a domestic insurer could not use equitable estoppel to

enforce arbitration via a foreign insurer’s policy because it conflicted with the state’s positive written law

barring arbitration clauses in insurance policies under La. R.S. 22:868. Police Jury of Calcasieu Par.,

supra, slip op. at 16. As the court emphasized, “there

is no place in Louisiana law for a common law doctrine

addressing subjects of existing positive law of the Civil

Code.” Id. The court criticized the Fifth Circuit’s use

of equitable estoppel to provide the protections of the

Convention to domestic insurers in Bufkin, noting

that domestic insurers do not fall under that treaty’s

rules and that the panel had failed to grapple with

Plaintiff also raises arguments based on Louisiana Revised

Statutes 9:2778, which prohibits clauses requiring “a suit or arbitration proceeding to be brought in a forum or jurisdiction

outside of this state” or “interpretation of the agreement according to the laws of another state” in “public contracts.” This court

has held that the statute applies to and invalidates such clauses

in surplus lines insurance policies issued to political subdivisions

of the state. Mancuso v. Starr Surplus Lines Ins. Co., 701

F.Supp.3d 474 (W.D. La. 2023). The Louisiana Supreme Court

recently endorsed this interpretation, but the court need not

reach the argument here. Police Jury of Calcasieu Par., slip op.

at 11–14.

26a

conflicting state law applicable to those insurers. Id.

at 17.

Plaintiff has released its claims against the foreign insurers, forfeiting its right to a corresponding

amount of recovery. The remaining claims are against

domestic insurers, with whom (per the terms of the

policy) plaintiff had individual contracts. Based on the

latest interpretation from the Louisiana Supreme

Court, the court finds no basis on which the defendant

insurers can invoke the Convention’s protections to

upset Louisiana law in these domestic insurance contracts. Accordingly, the arbitration clause is

invalidated by La. R.S. 22:868 and the court need not

consider plaintiff’s other arguments against its enforcement.

III.

CONCLUSION

For the foregoing reasons, the court hereby ORDERS that the Motion to Compel Arbitration and

Stay Proceedings [doc. 7] and Motion to Stay [id.] be

DENIED.

THUS DONE AND SIGNED in Chambers on the

4th day of November, 2024.

27a

APPENDIX D

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

CERTAIN UNDERWRITERS AT

LLOYDS LONDON

ET AL

CASE NO. 2:22-CV05286

VERSUS

JUDGE JAMES D.

CAIN, JR.

CAMERON PARISH

RECREATION #6

MAGISTRATE JUDGE

LEBLANC

MEMORANDUM RULING

Before the court is a Motion to Dismiss [doc. 8]

filed by defendant Cameron Parish Recreation # 6

(“CPR”) under Federal Rule of Civil Procedure

12(b)(5). Plaintiffs Certain Underwriters at Lloyds

London Subscribing to Policy No AMR-42386-05, General Security Indemnity Company of Arizona, H D I

Global Specialty S E, Indian Harbor Insurance Company, Lexington Insurance Company, Old Republic

Union Insurance Company, Q B E Specialty Insurance Company, Safety Specialty Insurance Company,

Steadfast Insurance Company, and United Specialty

Insurance Company oppose the motion. Doc. 11.

BACKGROUND

This suit arises from damage to CPR’s property in

Hurricane Laura. At all relevant times the property

was insured under a surplus lines policy issued by the

28a

plaintiff insurers in this matter. CPR filed suit in

state court in a related case against only the domestic

insurers, in an attempt to evade enforceability of the

policy’s arbitration clause under the Convention on

the Recognition and Enforcement of Foreign Arbitral

Awards (“Convention”).1 The matter was removed to

this court on September 19, 2022. See Cameron Par.

Recreation #6 v. Indian Harbor Ins. Co., No. 2:22-cv5287 (W.D. La.). On the same day both the domestic

and foreign insurers subscribing to the policy filed a

complaint to compel arbitration and stay litigation

against CPR. Doc. 1.

In the related case, the insurers filed a motion to

compel arbitration and stay proceedings. Cameron

Par. Recreation #6., No. 2:22-cv-5287 (W.D. La.), at

doc. 8. CPR requested an extension of briefing deadlines and leave to conduct discovery, which the court

granted but ultimately limited to a deadline of April

14, 2023. Id. at doc. 21. The insurers appealed and the

Fifth Circuit determined that no discovery was

needed. Id. at doc. 38. Accordingly, the matter was remanded to the undersigned to rule on the pending

motions. Id. The undersigned has denied that motion,

finding based on a recent ruling of the Louisiana Supreme Court that the domestic insurers may not use

the doctrine of equitable estoppel to enforce the arbitration agreements in their contracts under the

Convention. As part of the briefing on that motion,

1 If the policy is only enforceable through the Federal Arbitration

Act, it is reverse-preempted by Louisiana Revised Statutes

22:868(A)(2), which bars arbitration clauses in insurance policies. S.K.A.V., LLC v. Indep. Specialty Ins. Co., 103 F.4th 1121

(5th Cir. 2024). If the Convention applies, however, then state

law has no impact. McDonnel Grp., LLC v. Great Lakes Ins. SE,

UK Branch, 923 F.3d 427, 430–32 (5th Cir. 2019).

29a

SBCP asserted—and the insurers did not dispute—

that it had released its claims against the foreign insurers.

Meanwhile, in this matter, a summons was issued

on October 7, 2022. Doc. 2. The clerk issued a notice of

intent to dismiss for failure to effect service on July

19, 2024. Doc. 6. The insurers then filed its return of

service on July 25, 2024. Doc. 7. On August 13, 2024,

CPR filed the instant motion to dismiss under Federal

Rule of Civil Procedure 12(b)(5). Doc. 8. The insurers

oppose the motion, arguing that good cause exists to

excuse their late service. Doc. 11.

II.

LAW & APPLICATION

A) Legal Standards

Federal Rule of Civil Procedure 4 provides the

proper means of service for actions filed in federal

court, and Rule 4(m) specifies that a complaint must

be served on the opposing party within 90 days of its

filing. Absent valid service of process, “proceedings

against a party are void.” Aetna Bus. Credit, Inc. v.

Universal Décor & Interior Design, 635 F.2d 434, 435

(5th Cir. 1981). Accordingly, Rule 12(b)(5) allows for

dismissal of an action based on insufficient service of

process. Luv N’ Care, Ltd. v. Groupo Rimar, 2014 WL

6982499, at *3 (W.D. La. Dec. 9, 2014) (citing 5B

CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 1353

(3d ed. 2013)). On such a motion, the serving party

bears the burden of proof. Aetna Bus. Credit, 635 F.3d

at 435.

The district court has broad discretion in determining whether to dismiss an action for insufficient

service under Rule 12(b)(5). George v. U.S. Dep’t of

30a

Labor, 788 F.2d 1115, 1116 (5th Cir. 1986). If the motion relates to plaintiff’s failure to effect service within

Rule 4(m)’s time limit, the court must extend the time

to effect service for good cause shown. Pugh v. Bank of

America, 2017 WL 1427015, at *1 (E.D. La. Apr. 21,

2017) (citing Fed. R. Civ. P. 4(m)). If there is no good

cause shown, the court may at its discretion either dismiss the action without prejudice or grant an

extension. Id. (citing Thompson v. Brown, 91 F.3d 20,

21 (5th Cir. 1996)). In exercising this discretion courts

have also considered the potential prejudice, or lack

thereof, to defendant. See Tucker v. Unitech Training

Academy, Inc., 2016 WL 5678562, at *3 (E.D. La. Oct.

3, 2016) (collecting cases).

B) Application

The ninety-day period under Rule 4(m) expired

long ago. But this suit is effectively a nullity now,

given the undersigned’s ruling in the related case. The

insurers also argue that they surmised this matter

was effectively stayed by their appeal to the Fifth Circuit in the related case, until that court issued its

mandate in March 2024. The undersigned finds no

fault with this assumption, even though there was no

stay order. Based on the good cause shown and the

lack of prejudice to CPR, the time to effect service

should be retroactively extended to July 25, 2024. Because the court has found in the related matter that

the domestic insurers may not avail themselves of equitable estoppel and because CPR has released its

claims against the foreign insurers, this suit will be

dismissed.

31a

III.

CONCLUSION

For the reasons stated above, the Motion to Dismiss [doc. 8] will be DENIED and judgment will be

entered for the defendant based on the court’s ruling

in the related case.

THUS DONE AND SIGNED in Chambers on the

4th day of November, 2024.

32a

APPENDIX E

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

CAMERON PARISH

RECREATION #6

CASE NO. 2:22-CV05287

VERSUS

JUDGE JAMES D.

CAIN, JR.

INDIAN HARBOR INSURANCE CO ET AL

MAGISTRATE JUDGE

LEBLANC

MEMORANDUM ORDER

Before the court is a Motion to Compel Arbitration

and Stay Proceedings [doc. 8] filed by defendants

General Security Indemnity Company of Arizona,

Indian Harbor Insurance Company, Lexington

Insurance Company, Old Republic Union Insurance

Company, QBE Specialty Insurance Company, Safety

Specialty Insurance Company, and United Specialty

Insurance Company (collectively, “domestic insurers”

or “defendants”). Plaintiff Cameron Parish Recreation

No. 6 opposes the motion. Doc. 40. The parties have

also submitted supplemental briefs at the court’s

request. Docs. 46, 47.

BACKGROUND

The suit arises from damage to property owned by

plaintiff in Hurricane Laura. At all relevant times the

property was insured under a surplus lines policy

issued by the domestic insurers named above as well

33a

as foreign insurers Certain Underwriters at Lloyd’s,

London subscribing to Policy No. AMR-60898-02

(“Underwriters”) and HDI Global Specialty SE (“HDI

Global”) (collectively, “foreign insurers”). The policy

includes an arbitration clause requiring that “[a]ll

matters in difference . . . in relation to this insurance”

be submitted to arbitration in New York. Doc. 8, att.

3, p. 37. The policy also contains several service of suit

endorsements designating addresses for service and

providing that, in the event an insurer fails to pay any

amount claimed due under the policy, it “will submit

to the jurisdiction of a Court of competent jurisdiction

within the United States.” Id. at 68, 69–89.

Plaintiff filed suit against the domestic insurers

only in the 38th Judicial District Court, Cameron

Parish, Louisiana, alleging that they failed to timely

or adequately pay for its covered losses. Doc. 1, att. 4.

Plaintiff asserts (and defendants do not dispute) that

it has released its claims against the foreign insurers.

Doc. 40. Defendants removed the suit to this court.

They maintain that the foreign insurers cannot be

omitted from this suit and that the arbitration

agreement must be enforced pursuant to the

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (“Convention”). Accordingly,

they move the court to compel arbitration and stay

these proceedings. Doc. 8. Plaintiff opposes the

motion, arguing that (1) the domestic insurers cannot

enforce the arbitration clause through the Convention

and the clause is unenforceable through the Federal

Arbitration Act (“FAA”) because it is “reversepreempted” under state law; (2) the clause is

unenforceable because it was not signed by plaintiff;

and (3) the policy’s service-of-suit endorsements

nullify the arbitration agreement. Doc. 40. In its

34a

supplemental memorandum it maintains that the

arbitration clause cannot be enforced through

equitable estoppel because it is contrary to Louisiana

law. Doc. 46.

II.

LAW & APPLICATION

The Convention “is an international treaty that

provides citizens of signatory countries the right to

enforce arbitration agreements.” Bufkin Enterps.,

LLC v. Indian Harbor Ins. Co., 96 F.4th 726 (5th Cir.

2024). Its purpose is “to encourage the recognition and

enforcement of commercial arbitration agreements in

international contracts and to unify the standards by

which agreements to arbitrate are observed and

arbitral awards are enforced by signatory countries.”

Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15

(1974). Under the Convention, a court must compel

arbitration if (1) there is a written agreement to

arbitrate the matter; (2) the agreement provides for

arbitration in a signatory nation; (3) the agreement

arises out of a commercial legal relationship; and (4)

a party to the agreement is not an American citizen.

Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d

327, 339 (5th Cir. 2004). The present case is

distinguished from the others, however. In this case

there are no foreign defendants, foreign insurers, or

foreign signatories who could ever be held liable to

plaintiff to pay any amount on any contract under this

policy. The contractual agreements with the domestic

insurers are expressly declared to be separate

contracts. Because the agreements at issue in this

matter are “entirely between citizens of the United

States,” they “shall be deemed not to fall under the

Convention.” 9 U.S.C. § 202.

35a

The Fifth Circuit recently held that domestic

insurers may enforce an arbitration agreement in

such a policy under the doctrine of equitable estoppel

if they can show that the claims arise from

“substantially interdependent and concerted conduct”

by both the domestic and foreign insurers. Bufkin

Enterps., LLC, 96 F.4th at 731. However, the United

States Supreme Court has recognized that courts

must apply ordinary state law principles in

determining whether parties agreed to arbitrate. First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944

(1995); see also Arthur Andersen LLP v. Carlisle, 556

U.S. 624, 630 (2009) (recognizing that “background

principles of state contract law” govern who is bound

by an arbitration agreement). The Fifth Circuit has

followed suit, applying state law in determining

equitable estoppel under Grigson v. Creative Artists

Agency, LLC, 210 F.3d 524 (5th Cir. 2000). See

Newman v. Plains All American Pipeline, LP, 23 F.4th

393, 404– 05 (5th Cir. 2022). In Bufkin, the Fifth

Circuit made an Erie guess referencing a Louisiana

appellate court decision and various Eastern District

of Louisiana opinions that equitable estoppel would

apply under state law. Since that time, however, the

Louisiana Supreme Court has rejected that guess.

Police Jury of Calcasieu Par. V. Indian Harbor Ins.

Co., No. 2024-CQ-00449, slip op. at 6–10 (La. Oct. 25,

2024).

Defendants next argue that the matter is

governed by the Convention without reference to

estoppel, and that estoppel is irrelevant at any rate

because Louisiana law does not prohibit arbitration

clauses in surplus lines policies. Doc. 51. Both

arguments are refuted by recent case law. In Bufkin,

the Fifth Circuit did not reach the insurers’ argument

36a

that they had “one overarching policy agreement to

which all the insurers were parties” and instead

focused on the dispositive issue of whether equitable

estoppel applied, assuming arguendo that the policies

were separate. 96 F.4th at 729–30. There was good

reason for the assumption. As this court noted in the

ruling on appeal, the Declarations Page listed

individual policy numbers and provided under the

Contract Allocation Endorsement:

This contract shall be constructed as a

separate contract between the Insured and

each of the Underwriters. This evidence of

coverage consists of separate sections of a

composite insurance for all Underwriter’s at

Lloyd’s combined and separate policies issued

by the insurance company(ies), all as

identified below. This evidence of coverage

does not constitute in any manner or form a

joint certificate of coverage by Underwriter’s

at Lloyd’s with any other insurance

company(ies).

Bufkin Enterps. LLC v. Indian Harbor Ins. Co., 2023

WL 2393700, at *2 (W.D. La. Mar. 7, 2023). The same

endorsement also provided:

The liability of each Underwriter on this

contract with the Insured is limited to the

participation amount shown in the schedule

below. The liability of each separate contract

listed and for each Underwriter represented

thereby for any loss or losses or amounts

payable is several as to each and shall not

exceed its participation percentage shown

below and there is no joint liability of any

Underwriters pursuant to this contract. An

37a

Underwriter shall not have its liability

hereunder increased or decreased by reason of

failure or delay of another Underwriter, its

successors, assigns, or legal representatives.

Any loss otherwise payable under the

provisions of the attached policy that exceeds

the allocation of “Risk” as defined herein shall

be bourne proportionately by the contracts as

to their limit of liability at the time and place

of the loss bears to the total allocated limits

herein.

Id. Examining identical terms, Judge Lemmon of the

Eastern District of Louisiana concluded that even

though there was only one policy document, the

Contract Allocation Endorsement created a separate

contract between plaintiff and each insurer. Port

Cargo Service, LLC v. Certain Underwriters at Lloyd’s

London, 2018 WL 4042874, at *3 (E.D. La. Aug. 24,

2018). As Judge Lemmon noted, insurance policies are

contracts that must “be interpreted in accordance

with the intent of the parties as written” and “[t]he

policy language, which is the law between the parties,

specifies that the plaintiffs have separate insurance

contracts with each of the insurers.” Id. She therefore

held that the Convention only applied to the domestic

insurers through the doctrine of equitable estoppel.

Id. This court followed suit but determined that

equitable estoppel did not apply, a finding reversed by

the Fifth Circuit in Bufkin, supra. Nothing, however,

has disturbed the district court reasoning as to the

separate nature of the contracts.

As to whether the applicability of the Convention

makes a difference, the Fifth Circuit recently made its

Erie guess and affirmed this court’s holding that La.

38a

R.S. 22:868 voids an arbitration provision in a surplus

lines policy. S.K.A.V., LLC v. Indep. Specialty Ins. Co.,

103 F.4th 1121 (5th Cir. 2024). That statute provides,

in relevant part:

A. No insurance contract delivered or issued

for delivery in this state and covering subjects

located, resident, or to be performed in this

state, or any group health and accident policy

insuring a resident of this state regardless of

where made or delivered, shall contain any

condition, stipulation, or agreement either ...

(2) Depriving the courts of this state of the

jurisdiction or venue of action against the

insurer....

D. The provisions of Subsection A of this

Section shall not prohibit a forum or venue

selection clause in a policy form that is not

subject to approval by the Department of

Insurance.

La. Rev. Stat. 22:868. As the Fifth Circuit observed,

“Louisiana caselaw still regard[s] arbitration clauses

as a qualitatively different type of forum-selection

clause, at least for the purposes of § 22:868, because

they [have] jurisdictional import and thus still [fall]

under the prohibition of (A)(2).” S.K.A.V., LLC, 103

F.4th at 1124. Accordingly, it held that subsection

(D)’s exemption for “forum or venue selection

clause[s]” in surplus line policies did not apply to

arbitration clauses and that arbitration clauses were

prohibited even within such policies under Louisiana

law. Thereafter, the Louisiana Supreme Court

removed any doubt and endorsed this view in

39a

response to the undersigned’s certified question.1

Police Jury of Calcasieu Par., supra, slip op. at 6–10.

Under the McCarran-Ferguson Act, state laws

regulating insurance are shielded from the

preemptive effect of federal law. 15 U.S.C. §§ 1011,

1012. McCarran-Ferguson thus allows state laws like

Louisiana Revised Statutes 22:868(A)(2) to “reversepreempt” the Federal Arbitration Act’s provisions on

the enforceability of insurance agreements. See, e.g.,

Am. Bankers Ins. Co. of Fla. V. Inman, 436 F.3d 490

(5th Cir. 2006). However, this reverse preemption

applies only to “Acts of Congress,” which do not

encompass treaties. Safety Nat’l Cas. Corp. v. Certain

Underwriters at Lloyd’s, London, 587 F.3d 714, 731–

32 (5th Cir. 2009). In other words, if the Convention

applies then state law (including Louisiana Revised

Statutes 22:868) has no impact. Id. If, on the other

hand, the court finds that equitable estoppel does not

apply and that the domestic insurers can only enforce

the arbitration clause through the Federal Arbitration

Act, then § 22:868(A)(2) reverse-preempts federal law

and invalidates the arbitration clause.

In response to the court’s supplemental briefing

order, plaintiff argues that equitable estoppel cannot

be applied because (1) the arbitration clause is

contrary to explicit prohibitory state laws and (2)

defendants do not meet the heightened standard

1 The United States Supreme Court has recognized that certifi-

cation of unsettled questions to a state’s highest court is

preferable because the “federal court may save ‘time, energy, and

resources and help build a cooperative judicial federalism.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997)

(quoting Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974))

(cleaned up).

40a

required to invoke equitable estoppel against a

governmental entity under Louisiana law.2 See

Showboat Star P’ship v. Slaughter, 789 So.2d 554,

561–62 (La. 2001). Defendants maintain that the only

proper consideration for equitable estoppel is whether

they “may avail themselves of the arbitration

provision because they are accused of engaging in

substantially interdependent and concerted conduct

with a signatory” the intertwined claims test used in

Bufkin. But in response to the undersigned’s certified

question, the Louisiana Supreme Court also

determined that a domestic insurer could not use

equitable estoppel to enforce arbitration via a foreign

insurer’s policy because it conflicted with the state’s

positive written law barring arbitration clauses in

insurance policies under La. R.S. 22:868. Police Jury

of Calcasieu Par., supra, slip op. at 16. As the court

emphasized, “there is no place in Louisiana law for a

common law doctrine addressing subjects of existing

positive law of the Civil Code.” Id. The court criticized

the Fifth Circuit’s use of equitable estoppel to provide

the protections of the Convention to domestic insurers

in Bufkin, noting that domestic insurers do not fall

under that treaty’s rules and that the panel had failed

Plaintiff also raises arguments based on Louisiana Revised

Statutes 9:2778, which prohibits clauses requiring “a suit or arbitration proceeding to be brought in a forum or jurisdiction

outside of this state” or “interpretation of the agreement according to the laws of another state” in “public contracts.” This court

has held that the statute applies to and invalidates such clauses

in surplus lines insurance policies issued to political subdivisions

of the state. Mancuso v. Starr Surplus Lines Ins. Co., 701

F.Supp.3d 474 (W.D. La. 2023). The Louisiana Supreme Court

recently endorsed this interpretation, but the court need not

reach the argument here. Police Jury of Calcasieu Par., slip op.

at 11–14.

41a

to grapple with conflicting state law applicable to

those insurers. Id. at 17.

Plaintiff has released its claims against the

foreign insurers, forfeiting its right to a corresponding

amount of recovery. The remaining claims are against

domestic insurers, with whom (per the terms of the

policy) plaintiff had individual contracts. Based on the

latest interpretation from the Louisiana Supreme

Court, the court finds no basis on which the defendant

insurers can invoke the Convention’s protections to

upset Louisiana law in these domestic insurance

contracts. Accordingly, the arbitration clause is

invalidated by La. R.S. 22:868 and the court need not

consider plaintiff’s other arguments against its

enforcement.

III.

CONCLUSION

For the foregoing reasons, the court hereby

ORDERS that the Motion to Compel Arbitration and

Stay Proceedings [doc. 8] be DENIED.

THUS DONE AND SIGNED in Chambers on the

4th day of November, 2024.

42a

APPENDIX F

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

CERTAIN UNDERWRITERS AT

LLOYDS LONDON

SUBSC ET AL

CASE NO. 2:22-CV05345

VERSUS

JUDGE JAMES D.

CAIN, JR.

POLICE JURY OF

CAMERON PARISH

MAGISTRATE JUDGE

LEBLANC

MEMORANDUM RULING

Before the court is a Motion to Dismiss [doc. 11]

filed by defendant Cameron Parish Police Jury

(“CPPJ”) under Federal Rule of Civil Procedure

12(b)(5). Plaintiffs Certain Underwriters at Lloyds

London Subscribing to Policy No AMR-42386-05, General Security Indemnity Company of Arizona, H D I

Global Specialty S E, Indian Harbor Insurance Company, Lexington Insurance Company, Old Republic

Union Insurance Company, Q B E Specialty Insurance Company, Safety Specialty Insurance Company,

Steadfast Insurance Company, and United Specialty

Insurance Company oppose the motion. Doc. 13.

BACKGROUND

This suit arises from damage to CPPJ’s property

in Hurricane Laura. At all relevant times the property

was insured under a surplus lines policy issued by the

43a

plaintiff insurers in this matter. CPPJ filed suit in

state court in a related case against only the domestic

insurers, in an attempt to evade enforceability of the

policy’s arbitration clause under the Convention on

the Recognition and Enforcement of Foreign Arbitral

Awards (“Convention”).1 The matter was removed to

this court on September 26, 2022. See Cameron Par.

Police Jury v. Indian Harbor Ins. Co., No. 2:22-cv5348 (W.D. La.). On the same day both the domestic

and foreign insurers subscribing to the policy filed a

complaint to compel arbitration and stay litigation

against CPPJ. Doc. 1.

In the related case, the insurers filed a motion to

compel arbitration and stay proceedings. Cameron

Par. Police Jury, No. 2:22-cv-5348 (W.D. La.), at doc.

7. CPPJ requested an extension of briefing deadlines

and leave to conduct discovery, which the court

granted but ultimately limited to a deadline of April

14, 2023. Id. at doc. 12. The insurers appealed and the

Fifth Circuit determined that no discovery was

needed. Id. at doc. 31. Accordingly, the matter was

remanded to the undersigned to rule on the pending

motions. Id. The undersigned has denied that motion,

finding based on a recent ruling of the Louisiana

Supreme Court that the domestic insurers may not

use the doctrine of equitable estoppel to enforce the

arbitration agreements in their contracts under the

Convention. As part of the briefing on that motion,

1 If the policy is only enforceable through the Federal Arbitration

Act, it is reverse-preempted by Louisiana Revised Statutes

22:868(A)(2), which bars arbitration clauses in insurance policies. S.K.A.V., LLC v. Indep. Specialty Ins. Co., 103 F.4th 1121

(5th Cir. 2024). If the Convention applies, however, then state

law has no impact. McDonnel Grp., LLC v. Great Lakes Ins. SE,

UK Branch, 923 F.3d 427, 430–32 (5th Cir. 2019).

44a

CPPJ asserted—and the insurers did not dispute—

that it had released its claims against the foreign

insurers.

Meanwhile, in this matter, a summons was issued

on October 6, 2022. Doc. 2. The clerk issued a notice of

intent to dismiss for failure to effect service on

January 11, 2023. Doc. 5. The insurers requested an

extension and were granted until March 3, 2023, to

effect service. Doc. 7. No return of service was ever

filed and the clerk again issued a Notice of Intent to

Dismiss on July 19, 2024. Doc. 9. The insurers then

filed their return of service on July 25, 2024. Doc. 10.

On August 13, 2024, CPPJ filed the instant motion to

dismiss under Federal Rule of Civil Procedure

12(b)(5). Doc. 11. The insurers oppose the motion,

arguing that good cause exists to excuse their late

service. Doc. 13.

II.

LAW & APPLICATION

A) Legal Standards

Federal Rule of Civil Procedure 4 provides the

proper means of service for actions filed in federal

court, and Rule 4(m) specifies that a complaint must

be served on the opposing party within 90 days of its

filing. Absent valid service of process, “proceedings

against a party are void.” Aetna Bus. Credit, Inc. v.

Universal Décor & Interior Design, 635 F.2d 434, 435

(5th Cir. 1981). Accordingly, Rule 12(b)(5) allows for

dismissal of an action based on insufficient service of

process. Luv N’ Care, Ltd. v. Groupo Rimar, 2014 WL

6982499, at *3 (W.D. La. Dec. 9, 2014) (citing 5B

CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 1353

(3d ed. 2013)). On such a motion, the serving party

45a

bears the burden of proof. Aetna Bus. Credit, 635 F.3d

at 435.

The district court has broad discretion in

determining whether to dismiss an action for

insufficient service under Rule 12(b)(5). George v. U.S.

Dep’t of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986). If

the motion relates to plaintiff’s failure to effect service

within Rule 4(m)’s time limit, the court must extend

the time to effect service for good cause shown. Pugh

v. Bank of America, 2017 WL 1427015, at *1 (E.D. La.

Apr. 21, 2017) (citing Fed. R. Civ. P. 4(m)). If there is

no good cause shown, the court may at its discretion

either dismiss the action without prejudice or grant

an extension. Id. (citing Thompson v. Brown, 91 F.3d

20, 21 (5th Cir. 1996)). In exercising this discretion

courts have also considered the potential prejudice, or

lack thereof, to defendant. See Tucker v. Unitech

Training Academy, Inc., 2016 WL 5678562, at *3 (E.D.

La. Oct. 3, 2016) (collecting cases).

B) Application

The ninety-day period under Rule 4(m) expired

long ago. But this suit is effectively a nullity now,

given the undersigned’s ruling in the related case. The

insurers also argue that they surmised this matter

was effectively stayed by their appeal to the Fifth

Circuit in the related case, until that court issued its

mandate in March 2024. The undersigned finds no

fault with this assumption, even though there was no

stay order. Based on the good cause shown and the

lack of prejudice to CPPJ, the time to effect service

should be retroactively extended to July 25, 2024.

Because the court has found in the related matter that

the domestic insurers may not avail themselves of

equitable estoppel and because CPPJ has released its

46a

claims against the foreign insurers, this suit will be

dismissed.

III.

CONCLUSION

For the reasons stated above, the Motion to

Dismiss [doc. 11] will be DENIED and judgment will

be entered for the defendant based on the court’s

ruling in the related case.

THUS DONE AND SIGNED in Chambers on the

4th day of November, 2024.

47a

APPENDIX G

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

CAMERON POLICE

JURY

CASE NO. 2:22-CV05348

VERSUS

JUDGE JAMES D.

CAIN, JR.

INDIAN HARBOR INSURANCE CO ET AL

MAGISTRATE JUDGE

LEBLANC

MEMORANDUM ORDER

Before the court is a Motion to Compel Arbitration

and Stay Proceedings [doc. 7] filed by defendants

General Security Indemnity Company of Arizona,

Indian Harbor Insurance Company, Lexington

Insurance Company, Old Republic Union Insurance

Company, QBE Specialty Insurance Company, Safety

Specialty Insurance Company, Steadfast Insurance

Company, and United Specialty Insurance Company

(collectively, “domestic insurers” or “defendants”).

Plaintiff Cameron Parish Police Jury opposes the

motion. Doc. 33. The parties have also submitted

supplemental briefs at the court’s request. Docs. 39,

40.

BACKGROUND

The suit arises from damage to property owned by

plaintiff in Hurricane Laura. At all relevant times the

property was insured under a surplus lines policy

48a

issued by the domestic insurers named above as well

as foreign insurers Certain Underwriters at Lloyd’s,

London subscribing to Policy No. AMR-60898-02

(“Underwriters”) and HDI Global Specialty SE (“HDI

Global”) (collectively, “foreign insurers”). The policy

includes an arbitration clause requiring that “[a]ll

matters in difference . . . in relation to this insurance”

be arbitrated in New York. Doc. 7, att. 3, p. 37. The

policy also contains several service of suit

endorsements designating addresses for service and

providing that, in the event an insurer fails to pay any

amount claimed due under the policy, it “will submit

to the jurisdiction of a Court of competent jurisdiction

within the United States.” Id. at 68–89.

Plaintiff filed suit against the domestic insurers

only in the 38th Judicial District Court, Cameron

Parish, Louisiana, alleging that they failed to timely

or adequately pay for its covered losses. Doc. 1, att. 4.

Plaintiff asserts (and defendants do not dispute) that

it has released its claims against the foreign insurers.

Doc. 33. Defendants removed the suit to this court.

They maintain that the foreign insurers cannot be

omitted from this suit and that the arbitration

agreement must be enforced pursuant to the

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (“Convention”). Accordingly,

they move the court to compel arbitration and stay

these proceedings. Doc. 7. Plaintiff opposes the

motion, arguing that (1) the domestic insurers cannot

enforce the arbitration clause through the Convention

and the clause is unenforceable through the Federal

Arbitration Act (“FAA”) because it is “reversepreempted” under state law; (2) the clause is

unenforceable because it was not signed by plaintiff;

and (3) the policy’s service-of-suit endorsements

49a

nullify the arbitration agreement. Doc. 33. In its

supplemental memorandum it maintains that the

arbitration clause cannot be enforced through

equitable estoppel because it is contrary to Louisiana

law. Doc. 39.

II.

LAW & APPLICATION

The Convention “is an international treaty that

provides citizens of signatory countries the right to

enforce arbitration agreements.” Bufkin Enterps.,

LLC v. Indian Harbor Ins. Co., 96 F.4th 726 (5th Cir.

2024). Its purpose is “to encourage the recognition and

enforcement of commercial arbitration agreements in

international contracts and to unify the standards by

which agreements to arbitrate are observed and

arbitral awards are enforced by signatory countries.”

Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15

(1974). Under the Convention, a court must compel

arbitration if (1) there is a written agreement to

arbitrate the matter; (2) the agreement provides for

arbitration in a signatory nation; (3) the agreement

arises out of a commercial legal relationship; and (4)

a party to the agreement is not an American citizen.

Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d

327, 339 (5th Cir. 2004). The present case is

distinguished from the others, however. In this case

there are no foreign defendants, foreign insurers, or

foreign signatories who could ever be held liable to

plaintiff to pay any amount on any contract under this

policy. The contractual agreements with the domestic

insurers are expressly declared to be separate

contracts. Because the agreements at issue in this

matter are “entirely between citizens of the United

50a

States,” they “shall be deemed not to fall under the

Convention.” 9 U.S.C. § 202.

The Fifth Circuit recently held that domestic

insurers may enforce an arbitration agreement in

such a policy under the doctrine of equitable estoppel

if they can show that the claims arise from

“substantially interdependent and concerted conduct”

by both the domestic and foreign insurers. Bufkin

Enterps., LLC, 96 F.4th at 731. However, the United

States Supreme Court has recognized that courts

must apply ordinary state law principles in

determining whether parties agreed to arbitrate. First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944

(1995); see also Arthur Andersen LLP v. Carlisle, 556

U.S. 624, 630 (2009) (recognizing that “background

principles of state contract law” govern who is bound

by an arbitration agreement). The Fifth Circuit has

followed suit, applying state law in determining

equitable estoppel under Grigson v. Creative Artists

Agency, LLC, 210 F.3d 524 (5th Cir. 2000). See

Newman v. Plains All American Pipeline, LP, 23 F.4th

393, 404– 05 (5th Cir. 2022). In Bufkin, the Fifth

Circuit made an Erie guess referencing a Louisiana

appellate court decision and various Eastern District

of Louisiana opinions that equitable estoppel would

apply under state law. Since that time, however, the

Louisiana Supreme Court has rejected that guess.

Police Jury of Calcasieu Par. V. Indian Harbor Ins.

Co., No. 2024-CQ-00449, slip op. at 6–10 (La. Oct. 25,

2024).

Defendants next argue that the matter is

governed by the Convention without reference to

estoppel, and that estoppel is irrelevant at any rate

because Louisiana law does not prohibit arbitration

51a

clauses in surplus lines policies. Doc. 51. Both

arguments are refuted by recent case law. In Bufkin,

the Fifth Circuit did not reach the insurers’ argument

that they had “one overarching policy agreement to

which all the insurers were parties” and instead

focused on the dispositive issue of whether equitable

estoppel applied, assuming arguendo that the policies

were separate. 96 F.4th at 729–30. There was good

reason for the assumption. As this court noted in the

ruling on appeal, the Declarations Page listed

individual policy numbers and provided under the

Contract Allocation Endorsement:

This contract shall be constructed as a

separate contract between the Insured and

each of the Underwriters. This evidence of

coverage consists of separate sections of a

composite insurance for all Underwriter’s at

Lloyd’s combined and separate policies issued

by the insurance company(ies), all as

identified below. This evidence of coverage

does not constitute in any manner or form a

joint certificate of coverage by Underwriter’s

at Lloyd’s with any other insurance

company(ies).

Bufkin Enterps. LLC v. Indian Harbor Ins. Co., 2023

WL 2393700, at *2 (W.D. La. Mar. 7, 2023). The same

endorsement also provided:

The liability of each Underwriter on this

contract with the Insured is limited to the

participation amount shown in the schedule

below. The liability of each separate contract

listed and for each Underwriter represented

thereby for any loss or losses or amounts

payable is several as to each and shall not

52a

exceed its participation percentage shown

below and there is no joint liability of any

Underwriters pursuant to this contract. An

Underwriter shall not have its liability

hereunder increased or decreased by reason of

failure or delay of another Underwriter, its

successors, assigns, or legal representatives.

Any loss otherwise payable under the

provisions of the attached policy that exceeds

the allocation of “Risk” as defined herein shall

be bourne proportionately by the contracts as

to their limit of liability at the time and place

of the loss bears to the total allocated limits

herein.

Id. Examining identical terms, Judge Lemmon of the

Eastern District of Louisiana concluded that even

though there was only one policy document, the

Contract Allocation Endorsement created a separate

contract between plaintiff and each insurer. Port

Cargo Service, LLC v. Certain Underwriters at Lloyd’s

London, 2018 WL 4042874, at *3 (E.D. La. Aug. 24,

2018). As Judge Lemmon noted, insurance policies are

contracts that must “be interpreted in accordance

with the intent of the parties as written” and “[t]he

policy language, which is the law between the parties,

specifies that the plaintiffs have separate insurance

contracts with each of the insurers.” Id. She therefore

held that the Convention only applied to the domestic

insurers through the doctrine of equitable estoppel.

Id. This court followed suit but determined that

equitable estoppel did not apply, a finding reversed by

the Fifth Circuit in Bufkin, supra. Nothing, however,

has disturbed the district court reasoning as to the

separate nature of the contracts.

53a

As to whether the applicability of the Convention

makes a difference, the Fifth Circuit recently made its

Erie guess and affirmed this court’s holding that La.

R.S. 22:868 voids an arbitration provision in a surplus

lines policy. S.K.A.V., LLC v. Indep. Specialty Ins. Co.,

103 F.4th 1121 (5th Cir. 2024). That statute provides,

in relevant part:

A. No insurance contract delivered or issued

for delivery in this state and covering subjects

located, resident, or to be performed in this

state, or any group health and accident policy

insuring a resident of this state regardless of

where made or delivered, shall contain any

condition, stipulation, or agreement either ...

(2) Depriving the courts of this state of the

jurisdiction or venue of action against the

insurer....

D. The provisions of Subsection A of this

Section shall not prohibit a forum or venue

selection clause in a policy form that is not

subject to approval by the Department of

Insurance.

La. Rev. Stat. 22:868. As the Fifth Circuit observed,

“Louisiana caselaw still regard[s] arbitration clauses

as a qualitatively different type of forum-selection

clause, at least for the purposes of § 22:868, because

they [have] jurisdictional import and thus still [fall]

under the prohibition of (A)(2).” S.K.A.V., LLC, 103

F.4th at 1124. Accordingly, it held that subsection

(D)’s exemption for “forum or venue selection

clause[s]” in surplus line policies did not apply to

arbitration clauses and that arbitration clauses were

prohibited even within such policies under Louisiana

law. Thereafter, the Louisiana Supreme Court

54a

removed any doubt and endorsed this view in

response to the undersigned’s certified question.1

Police Jury of Calcasieu Par., supra, slip op. at 6–10.

Under the McCarran-Ferguson Act, state laws

regulating insurance are shielded from the

preemptive effect of federal law. 15 U.S.C. §§ 1011,

1012. McCarran-Ferguson thus allows state laws like

Louisiana Revised Statutes 22:868(A)(2) to “reversepreempt” the Federal Arbitration Act’s provisions on

the enforceability of insurance agreements. See, e.g.,

Am. Bankers Ins. Co. of Fla. V. Inman, 436 F.3d 490

(5th Cir. 2006). However, this reverse preemption

applies only to “Acts of Congress,” which do not

encompass treaties. Safety Nat’l Cas. Corp. v. Certain

Underwriters at Lloyd’s, London, 587 F.3d 714, 731–

32 (5th Cir. 2009). In other words, if the Convention

applies then state law (including Louisiana Revised

Statutes 22:868) has no impact. Id. If, on the other

hand, the court finds that equitable estoppel does not

apply and that the domestic insurers can only enforce

the arbitration clause through the Federal Arbitration

Act, then § 22:868(A)(2) reverse-preempts federal law

and invalidates the arbitration clause.

In response to the court’s supplemental briefing

order, plaintiff argues that equitable estoppel cannot

be applied because (1) the arbitration clause is

contrary to explicit prohibitory state laws and (2)

1 The United States Supreme Court has recognized that certifi-

cation of unsettled questions to a state’s highest court is

preferable because the “federal court may save ‘time, energy, and

resources and help build a cooperative judicial federalism.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997)

(quoting Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974))

(cleaned up).

55a

defendants do not meet the heightened standard

required to invoke equitable estoppel against a

governmental entity under Louisiana law.2 See

Showboat Star P’ship v. Slaughter, 789 So.2d 554,

561–62 (La. 2001). Defendants maintain that the only

proper consideration for equitable estoppel is whether

they “may avail themselves of the arbitration

provision because they are accused of engaging in

substantially interdependent and concerted conduct

with a signatory” the intertwined claims test used in

Bufkin. But in response to the undersigned’s certified

question, the Louisiana Supreme Court also

determined that a domestic insurer could not use

equitable estoppel to enforce arbitration via a foreign

insurer’s policy because it conflicted with the state’s

positive written law barring arbitration clauses in

insurance policies under La. R.S. 22:868. Police Jury

of Calcasieu Par., supra, slip op. at 16. As the court

emphasized, “there is no place in Louisiana law for a

common law doctrine addressing subjects of existing

positive law of the Civil Code.” Id. The court criticized

the Fifth Circuit’s use of equitable estoppel to provide

the protections of the Convention to domestic insurers

in Bufkin, noting that domestic insurers do not fall

Plaintiff also raises arguments based on Louisiana Revised

Statutes 9:2778, which prohibits clauses requiring “a suit or arbitration proceeding to be brought in a forum or jurisdiction

outside of this state” or “interpretation of the agreement according to the laws of another state” in “public contracts.” This court

has held that the statute applies to and invalidates such clauses

in surplus lines insurance policies issued to political subdivisions

of the state. Mancuso v. Starr Surplus Lines Ins. Co., 701

F.Supp.3d 474 (W.D. La. 2023). The Louisiana Supreme Court

recently endorsed this interpretation, but the court need not

reach the argument here. Police Jury of Calcasieu Par., slip op.

at 11–14.

56a

under that treaty’s rules and that the panel had failed

to grapple with conflicting state law applicable to

those insurers. Id. at 17.

Plaintiff has released its claims against the

foreign insurers, forfeiting its right to a corresponding

amount of recovery. The remaining claims are against

domestic insurers, with whom (per the terms of the

policy) plaintiff had individual contracts. Based on the

latest interpretation from the Louisiana Supreme

Court, the court finds no basis on which the defendant

insurers can invoke the Convention’s protections to

upset Louisiana law in these domestic insurance

contracts. Accordingly, the arbitration clause is

invalidated by La. R.S. 22:868 and the court need not

consider plaintiff’s other arguments against its

enforcement.

III.

CONCLUSION

For the foregoing reasons, the court hereby

ORDERS that the Motion to Compel Arbitration and

Stay Proceedings [doc. 7] and Motion to Stay [id.] be

DENIED.

THUS DONE AND SIGNED in Chambers on the

4th day of November, 2024.

57a

APPENDIX H

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

TOWN OF VINTON

CASE NO. 2:23-CV00240

VERSUS

CERTAIN UNDERWRITERS AT

LLOYDS LONDON

ET AL

JUDGE JAMES D.

CAIN, JR.

MAGISTRATE JUDGE

KAY

MEMORANDUM ORDER

Before the Court is “Defendant’s Motion to

Compel Arbitration and Stay the Proceedings” (Doc.

6) filed by Indian Harbor Insurance Company, QBE

Specialty Insurance Company, Steadfast Insurance

Company, General Security Indemnity Company of

Arizona, United Specialty Insurance Company,

Lexington Insurance Company, Safety Specialty

Insurance Company, and Old Republic Union

Insurance Company (collectively referred to as

“Defendants” or “Insurers”). Also, before the Court is

a “Motion for Oral Arguments” (Doc. 11) filed by

counsel for the Town of Vinton (“Vinton”).

INTRODUCTION

This lawsuit involves damage caused by

Hurricanes Laura and Delta that made landfall near

Lake Charles, Louisiana on August 27, 2020, and

October 9, 2020, respectively. During the relevant

time period, Defendants/Insurers insured Vinton’s

58a

many properties with a commercial insurance policy

that included a syndicate of insurers identified above.

Vinton is a political subdivision of the State of

Louisiana.

Vinton alleges that the Insurer failed to properly

and timely adjust its claims and asserts claims for

breach of contract, bad faith penalties, and attorney

fees pursuant to Louisiana Revised Statutes 22:1973

and 22:1892.

The lawsuit was originally filed in state court and

removed to this Court. Prior to removal, Vinton

dismissed with prejudice the only two foreign

insurers, Certain Underwriters at Lloyd’s, London

and HDI Global Specialty SE.1

LAW AND ANALYSIS

Louisiana law prohibits arbitration agreements in

insurance policies covering property within the state.

La. R.S. § 22:868(A)(2). Under the McCarranFerguson Act, state laws regulating insurance are

shielded from the preemptive effect of federal law. 15

U.S.C. §§ 1011, 1012. Accordingly, McCarranFerguson allows state laws like Louisiana Revised

Statute section 22:868(A)(2) to “reverse-preempt” the

Federal Arbitration Act’s provisions on the

enforceability of insurance agreements. See, e.g., Am.

Bankers Ins. Co. of Fla. V. Inman, 436 F.3d 490 (5th

Cir. 2006). However, this “reverse preemption”

applies only to “Acts of Congress” and not to treaties.

Safety Nat’l Cas. Corp. v. Certain Underwriters at

Lloyd’s, London, 587 F.3d 714, 723 (5th Cir. 2009).

The Convention on the Recognition and Enforcement

of Foreign Arbitral Awards (the “Convention”) is one

1 Plaintiff’s exhibit 1.

59a

such treaty and requires signatory nations to

“‘recognize an agreement in writing under which the

parties undertake to submit to arbitration’ their

dispute ‘concerning a subject matter capable of

settlement by arbitration.’” Id. at 719 (quoting

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards art. II(1), June 10, 1958, 21

U.S.T. 2517, 330 U.N.T.S. 3)). State insurance law

thus has no impact on arbitration agreements arising

under the Convention. Id. at 723–24; see also

McDonnel Group, LLC v. Great Lakes Ins. Branch SE,

UK Branch, 923 F.3d 427 (5th Cir. 2019).

Insurers remark that the subject policy includes

an arbitration provision that provides that “[a]ll

matters in difference” between the Insured and the

Insurers “in relation to this insurance” are to be

submitted

arbitration

(the

“Arbitration

Agreement”). Defendants invoked the Arbitration

Agreement and demanded that Vinton arbitrate all

matters. Counsel for Vinton rejected Defendants’

arbitration demand.

Insurers maintain pursuant to 9 U.S.C. § 202,

that the Arbitration Agreement falls under the

Convention and the Federal Arbitration Act (the

“FAA”). The Insurers seek an order from the Court

referring the entirety of Vinton’s claims against

Defendants to arbitration and to stay all litigation

pending the conclusion of the arbitration.

Insurers argue that the Arbitration Agreement

falls under the Convention because it arises out of a

commercial relationship, it is not entirely between

citizens of the United States, involves performance

abroad, and has a reasonable relationship with

foreign states. Insurers also argue the Arbitration

60a

Agreement is exempt from Louisiana’s antiarbitration law under Paragraph D of Louisiana

Revised Statute 22:868. Alternatively, Defendants

maintain that the Arbitration Agreement is

enforceable under the FAA because the Policy is a

contract evidencing a transaction involving commerce

to settle by arbitration a controversy arising out of

such contract. Specifically, Insurers argue that by

filing suit, Vinton violated the Arbitration Agreement.

Insurers also argue that equitable estoppel applies to

require arbitration if the contract and statutory law

does not require it.

Vinton contends that because there are no foreign

insurers involved, the contracts of insurance are

“entirely between citizens of the United States,” and

thus statutorily excluded from falling under the

Convention. 9 U.S.C. § 202. Vinton also contends that

even if the foreign insurers were involved, the

contracts of insurance do not contain an agreement to

arbitrate. Vinton asserts that the foreign insurers’

Amendatory Endorsements expressly change the

policy (nullifying the arbitration provision) and

require them to submit to the court in which the

insured chooses to file suit for payment of “any

amount claimed to be due” under the policy. As to

preemption by the FAA, Vinton argues that the

McCarran-Ferguson Act shields Louisiana’s antiarbitration law from preemption. Vinton argues that

because arbitration provisions “operate to deprive

Louisiana courts of jurisdiction of the action against

the insurer,” Paragraph D of Louisiana Revised

Statute 22:868 clarifies that “a forum or venue

selection clause” is allowed in surplus policies, and as

a political subdivision of the state, Vinton is protected

from the policy’s arbitration provision by Louisiana

61a

Revised Statute 9:2778. Finally, Vinton argues that

equitable estoppel does not apply to a public body.

Insurers argue that the Arbitration Clause must

be enforced under the Convention, i.e., the Convention

even applies to domestic insurers, because the

insurance relationship involves property located

abroad and envisages performance abroad; the

Arbitration Clause must be enforced under the FAA;

and Louisiana Revised Statutes section 22:868

provides no basis for reverse-preemption under

McCarran-Ferguson because it does not apply to

surplus lines policies.

Vinton counters that the Convention does not

apply because the defendants are wholly domestic

insurers; that Louisiana Revised Statute section

22:868(A) is an anti-arbitration provision applicable

to surplus lines policies; and, in the alternative, that

the foreign insurers’ Amendatory Endorsements

expressly change the Policy related to arbitration.

Facts

The Policy in effect during the relevant time

period states that each insurer in the syndicate has its

own separate contract with Vinton, each with a

separate policy number.2 Each insurer is separately

responsible and never jointly responsible with any

other insurer in the syndicate.3 The Policy further

states that each insurer’s several liability for loss

amounts to the insured shall not exceed its allocated

2 Doc. 6-3, pp. 2-5 (Contract Allocation Endorsement and Decla-

ration Page).

3 Id., pp. 47-48 (Section VII-Conditions, ¶ W).

62a

participation percentage.4 The Contract Allocation

Endorsement provides the following:

The liability of each Underwriter on this

contract with the Insured is limited to the

participation amount shown in the schedule

below.

The liability of each separate contract listed

and for each Underwriter represented thereby

for any loss or losses or amounts payable is

several as to each and shall not exceed its

participation percentage shown below and

there is no joint liability of any Underwriters

pursuant to this contract. An Underwriter

shall not have its liability hereunder

increased or decreased by reason of failure or

delay of another Underwriter, its successors,

assigns, or legal representatives. Any loss

otherwise payable under the provisions of the

attached policy that exceeds the allocation of

“Risk” as defined herein shall be bourne

proportionately by the contracts as to their

limit of liability at the time and place of the

loss bears to the total allocated limits herein.

This contract shall be constructed as a

separate contract between the Insured and

each of the Underwriters. This evidence of

coverage consists of separate sections of a

composite insurance for all Underwriter’s at

Lloyd’s combined and separate policies issued

by the insurance company(ies), all as

identified below. This evidence of coverage

does not constitute in any manner or form a

4 Id. pp. 2-4 (Contract Allocation Endorsement).

63a

joint certificate of coverage by Underwriter’s

at Lloyd’s with any other insurance

company(ies).5

The Policy also includes endorsements that state:

“THIS ENDORSEMENT CHANGES THE POLICY.

PLEASE READ IT CAREFULLY.”6 For example, the

Underwriters Service of Suit Endorsement states

that: In the even of failure of the Company to pay any

amount claimed to be due hereunder, the Company,

at the requist of the “Insured,” will submit to the

jurisdiction of a court of competent jurisdiction within

the United States.”7 There are similar endorsements

for other insurers.8

Whether the Convention applies

Insurers argue that the Arbitration Agreement is

enforceable under the Convention, despite no foreign

insurers are defending the lawsuit. In other words,

the Convention applies to domestic insurers.

Insurers rely on the 1983 Supreme Court case of

Moses H. Cone Memorial Hospital v. Mercury

Construction Corp. for the proposition that the United

States, as evidenced by the FAA, has a strong, liberal

policy favoring arbitration agreements. In 2022, the

Supreme Court clipped the wings of the oft quoted

“strong federal policy favoring arbitration” created by

the FAA, explaining that the FAA’s policy only makes

arbitration agreements as enforceable as other

contracts, but not more so, and does not permit federal

5 Id. p. 2.

6 Id. pp. 62, 63, 73, 80,

7 Id. p. 80.

8 Id. pp. 81, 82, 83.

64a

courts to devise novel rules to favor arbitration over

litigation. Morgan v. Sundance, Inc., 142 S. Ct. 1708,

1712–13 (2022) (“Nine circuits, including the Eighth,

have invoked “the strong federal policy favoring

arbitration” in support of an arbitration-specific

waiver rule demanding a showing of prejudice. Two

circuits have rejected that rule. We do too.”).

Accordingly, arbitration provisions within a contract

are on equal footing with other provisions and obtain

no talismanic effect from the FAA.

In the Fifth Circuit, “a court should compel

arbitration if (1) there is a written agreement to

arbitrate the matter; (2) the agreement provides for

arbitration in a Convention signatory nation; (3) the

agreement arises out of a commercial legal

relationship; and (4) a party to the agreement is not

an American citizen.” Freudensprung v. Offshore

Tech. Servs., Inc., 379 F.3d 327, 339 (5th Cir. 2004)

(collecting cases) (internal quotations omitted).

Here,

the

Policy’s

Contract

Allocation

Endorsement states that “[t]his contract shall be

construed as a separate contract between the Insured

and each of the Underwriters.”9

Insurers rely heavily on Port Cargo. Where the

policy at issue also contained a contract allocation

endorsement from which the district court determined

that the insureds could not be compelled by the

Convention to arbitrate their claims against the

domestic

insurers

because

they

failed

Freudensprung’s fourth prong. 2018 WL 4042874, at

*6 (E.D. La. Aug. 24, 2018) (“Although the insurance

contracts between plaintiffs and the domestic insurers

9 Doc. 6-3, p. 2.

65a

fit the first three criteria for compelling arbitration

under the Convention, the parties to those contracts

are all American citizens. Therefore, plaintiffs cannot

be compelled by the Convention to arbitrate their

claims against the domestic insurers.”).10 Similarly,

the policies in the instant matter are contracts

between Vinton and eight domestic insurers. Unlike

the defendants in Port Cargo, however, which also

included contracts with two foreign insurers, the

foreign insurers in this matter have been dismissed

with prejudice. Because each of the insurers here has

a separate contract with the insured and no party to

the agreement is not an American citizen, under

Freudensprung, Vinton cannot be compelled by the

eight domestic insurer Defendants to arbitrate under

the Convention. Additionally, Port Cargo came to this

conclusion notwithstanding two foreign insurer

defendants.

Equitable estoppel

Defendants raise the theory of equitable estoppel

and argue that it “applies with equal force here.” Port

Cargo, 2018 WL 4042874, at *6–7. This reasoning

relies on the Fifth Circuit’s holding in Grigson v.

Creative Artists Agency L.L.C, which adopted the

Eleventh Circuit’s intertwined-claims test allowing a

nonsignatory to compel arbitration under equitable

estoppel in situations. 210 F.3d 524, 527 (5th Cir.

2000). The first situation when equitable estoppel

applies is

when the signatory to a written agreement

containing an arbitration clause must rely on

10 The Port Cargo court ultimately ordered arbitration based on

equitable estoppel principles.

66a

the terms of the written agreement in

asserting its claims against the nonsignatory.

When each of a signatory’s claims against a

nonsignatory makes reference to or presumes

the existence of the written agreement, the

signatory’s claims arise out of and relate

directly to the written agreement, and

arbitration is appropriate.

Id. Here, much like the matter in Port Cargo, Vinton’s

claims against the domestic insurers do not rely on its

contracts with the foreign insurers because the

Contract Allocation Endorsement specifically states

that “[t]his contract shall be constructed as a separate

contract between the Insured and each of the

Underwriters.”11 Therefore, the Arbitration Clause

that could invoke the Convention with a foreign

insurer is separate and distinct from the Arbitration

Clause with domestic insurers that cannot. The first

Grigson situation does not apply. See Port Cargo, WL

4042874, at *7 (“[P]laintiffs do not directly rely on the

terms of the written agreements containing the

arbitration clause that arises under the Convention in

asserting their claims against the nonsignatories to

those contracts, i.e., the domestic insurers.”).

As to the second Grigson situation,

equitable estoppel is warranted when the

signatory to the contract containing an

arbitration clause raises allegations of

substantially interdependent and concerted

misconduct by both the nonsignatory and one

or more of the signatories to the contract.

Otherwise the arbitration proceedings

11 Doc. 7-3, p. 4.

67a

between the two signatories would be

rendered meaningless and the federal policy

in favor of arbitration effectively thwarted.

Grigson, 210 F.3d at 527. In Grigson, a non-insurance,

non-Convention case, the Fifth Circuit determined

that the plaintiffs’ claims in two actions “are

intertwined with, and dependent upon, the

distribution agreement, including, but not limited to,

Defendants (non-signatories) and TriStar (nondefendant

signatory)

being

charged

with

interdependent and concerted misconduct.” Id. at 531.

The Court pointed out that although the signatory12

was no longer a defendant, having been dismissed

without prejudice from an earlier action, the current

action and the earlier action “are the same. In essence,

[the signatory] is a defendant.” Id. at 530. Here,

however, the two foreign signatory defendants were

dismissed with prejudice. Doc. 10-1, p. 3.

Likewise, in Port Cargo, under the second Grigson

situation, the court compelled arbitration holding that

“[a]llowing plaintiffs to proceed in court against the

domestic insurers while simultaneously proceeding in

arbitration against the foreign insurers would render

meaningless the arbitration clause and thwart the

intentions of the Convention and the federal policy in

favor of arbitration.” Port Cargo, 2018 WL 4042874,

at *7. There the plaintiffs “allege[d] that the[] insurers

all breached the terms of the policy together through

the shared adjustor” and those insurer defendants

12 Here signatory refers to an arbitration clause in the contract

between the plaintiff and TriStar. By contrast, in the instant

matter and in Port Cargo, signatory refers to an agreement to

arbitrate under the Convention.

68a

included both nonsignatory domestic insurers and

signatory foreign insurers. 2018 WL 4042874, at *7.

Vinton remarks that estoppel does not apply

against government entities absent heightened

evidence. Show Boat Star Partnership v. Slaughter,

789 So.2d 554, 562 (al. 4/3/01). Government estoppel

would require four prongs of proof: “unequivocal

advice from an unusually authoritative source” that

the insurers reasonably relied on, causing “extreme

harm” and “gross injustice.” Vinton argues that none

of this is present or alleged by the Insurers. The Court

agrees that here equitable estoppel is not warranted.

Accordingly, the Convention does not apply, and

arbitration can only be compelled through the FAA.

Reverse-preemption under Louisiana Revised Statute

22:868

Louisiana Revised Statutes section 22:868 states:

A. No insurance contract delivered or issued

for delivery in this state and covering subjects

located, resident, or to be performed in this

state, or any group health and accident policy

insuring a resident of this state regardless of

where made or delivered, shall contain any

condition, stipulation, or agreement either:

(1) Requiring it to be construed according to

the laws of any other state or country except

as necessary to meet the requirements of the

motor vehicle financial responsibility laws of

such other state or country.

(2) Depriving the courts of this state of the

jurisdiction or venue of action against the

insurer.

69a

B. No insurance contract delivered or issued

for delivery in this state and covering subjects

located, resident, or to be performed in this

state, or any health and accident policy

insuring a resident of this state regardless of

where made or delivered, shall contain any

condition, stipulation, or agreement limiting

right of action against the insurer to a period

of less than twenty-four months next after the

inception of the loss when the claim is a firstparty claim, as defined in R.S. 22:1692, and

arises under any insurance classified and

defined in R.S. 22:47(6), (10), (11), (12), (13),

(15), and (19) or to a period of less than one

year from the time when the cause of action

accrues in connection with all other

insurances unless otherwise specifically

provided in this Code.

C. Any such condition, stipulation, or

agreement in violation of this Section shall be

void, but such voiding shall not affect the

validity of the other provisions of the contract.

D. The provisions of Subsection A of this

Section shall not prohibit a forum or venue

selection clause in a policy form that is not

subject to approval by the Department of

Insurance.

Insurers argue that regardless of whether the

Convention applies, the FAA preempts Louisiana’s

anti-arbitration law. Insurers argue that the test

under the McCarran-Ferguson Act is whether the

FAA would impair a New York law instead of a

Louisiana law. The Court disagrees with Insurers’

application of New York law here.

70a

Insurers argue that the arbitration provision in a

surplus policy is exempt from Louisiana’s antiarbitration law under Paragraph D of Louisiana

Revised Statute 22:868. Vinton argues, and the Court

agrees, that an arbitration provision is not a forum or

venue selection clause as used in Paragraph D.

On June 12, 2020,13 the Louisiana legislature

amended Section 22:868 to include Subsection D,

which states: “The provisions of Subsection A of this

Section shall not prohibit a forum or venue selection

clause in a policy form that is not subject to approval

by the Department of Insurance.” Additionally, the

Louisiana legislature added “venue” to the title of the

revised statute as well as “or venue” to subsection

(A)(2), which now states: “Depriving the courts of this

state of the jurisdiction or venue of action against the

insurer.” Prior to the 2020 amendment, Louisiana

courts held Section 22:868(A)(2) to reverse-preempt

the FAA under McCarran-Ferguson; that is, it was

treated as an anti-arbitration provision. E.g., Doucet

v. Dental Health Plans Mgmt. Corp., 412 So. 2d 1383,

1384 (La. 1982) (“Classification of the contract at issue

as an insurance contract renders the arbitration

provisions of that contract unenforceable under R.S.

22:629.”) (La. R.S. § 22:629 was retitled La. R.S. §

22:868.).14

13 2020 La. Sess. Law Serv. Act 307 (S.B. 156) (West).

14 See also Macaluso v. Watson, 171 So.2d 755 (La. App. 4 Cir.

1965) (holding an arbitration agreement between and insurer

and insured was void and unenforceable because it has the effect

of depriving a court of jurisdiction to decide the issue of liability

as well as quantum.”); Courville v. Allied Professionals Ins. Co.,

218 So.3d 144, 148 (La. Ct. App. 1st Cir. 2017), writ denied, 228

So.3d 1223 (La. 2017) (“In Louisiana, compulsory arbitration provisions in insurance contracts are prohibited as a matter of

71a

The question now is whether the text of Section

22:868(D), which addresses forum or venue selection

clauses, extends to cover arbitration clauses. This

question has not been ruled on by the Louisiana

Supreme Court, therefore United States District

Courts “must make an ‘Erie guess’ and ‘determine as

best it can’ what the Louisiana Supreme Court would

decide.” Howe ex rel. Howe v. Scottsdale Ins. Co., 204

F.3d 624, 627 (5th Cir. 2000) (quoting Krieser v.

Hobbs, 166 F.3d 736, 738 (5th Cir.1999)). The

“fundamental question in all cases of statutory

interpretation is legislative intent and that the rules

of statutory construction are designed to ascertain

and enforce that intent.” Carollo v. Dep’t of

Transportation & Dev., 346 So. 3d 751, 759 (La. 2022)

(quoting M.J. Farms, Ltd. v. Exxon Mobil Corp., 998

So. 2d 16, 26–27 (La. 2008)).

The starting point in the interpretation of any

statute is the language of the statute itself.

When a law is clear and unambiguous and its

application does not lead to absurd

consequences, the law shall be applied as

written and no further interpretation may be

made in the search of the intent of the

legislature. However, when the language of

the law is susceptible of different meanings, it

public policy because they operate to deprive Louisiana courts of

jurisdiction over actions against the insurer; further, such provisions deny Louisiana citizens of free access to its courts, a right

guaranteed by the state's constitution.”); Hobbs v. IGF Ins. Co.,

834 So.2d 1069, 1071 (La. Ct. App. 3d Cir. 2002) (“Louisiana

courts have consistently held that compulsory arbitration

clauses in contracts of insurance are unenforceable under this

statute because they operate to deprive Louisiana courts of jurisdiction of the action against the insurer.”).

72a

must be interpreted as having the meaning

that best conforms to the purpose of the law.

Moreover, when the words of a law are

ambiguous, their meaning must be sought by

examining the context in which they occur and

the text of the law as a whole.

Id. at 759–760 (cleaned up).

Before diving into the text Section 22:868, its

necessary to put some context around the

amendment. On May 8, 2019, the Louisiana Supreme

Court decided Creekstone Juban I, L.L.C. v. XL

Insurance America, Inc. where the issue before the

court was “whether La. R.S. 22:868(A)(2) prohibits the

enforcement of the forum selection clause in dispute.”

282 So. 3d 1042, 1044 (La. 2019). The pre-amendment

text of Section 22:868(A)(2) stated: “Depriving the

courts of this state of the jurisdiction of action against

the insurer.” 2020 La. Sess. Law Serv. Act 307 (S.B.

156) (West). The court observed that the Louisiana

Code of Civil Procedure article 1 “defines ‘jurisdiction’

as ‘the legal power and authority of a court to hear and

determine an action or proceeding involving the legal

relations of the parties, and to grant the relief to

which they are entitled.’” Creekstone Juban, 282 So.

3d at 1047. Furthermore, the court explained that

jurisdiction and venue are distinct legal concepts: “If

jurisdictional requirements are met, courts

throughout the state have the legal power and

authority to hear the case; however, not all courts with

jurisdiction are in the proper venue.” Id. (emphasis in

original) (quoting Turner v. Leslie, 684 So. 2d 395, 396

(La. 1996)). The Louisiana Supreme Court concluded

that “where the parties have contracted for a

particular forum or venue for litigating disputes, this

73a

does not mean they have deprived the courts of this

state of the legal authority to hear the dispute (i.e.,

the jurisdiction).” Id. Accordingly the Louisiana

Supreme Court “decline[d] to extend the definition of

“jurisdiction”—which is clearly defined in the Civil

Code—to include “venue” or “forum.” Id.

Creekstone Juban’s majority opinion prescinds

arbitration clauses from its jurisdictional discussion.

Justice Weimer’s concurrence, however, does not and

is instructive. See Id. at 1051. He agreed that forum

selection clauses did not deprive courts of jurisdiction

but that arbitration clauses did. Id. at 1052.

Furthermore, Justice Weimer observed that “[i]n

1948, shortly after passage of [McCarron-Ferguson],

the Louisiana Legislature took up Congress’s

invitation to reverse-preempt the FAA, passing the

predecessor to La. R.S. 22:868 as part of the Insurance

Code” and that Louisiana “cases decided after the

enactment of [the predecessor to La. R.S. § 22:868]

have confirmed its purpose as an anti-arbitration

statute.” Id.

Under “the terse and admirable maxim of the civil

law, ‘[c]ontemporanea expositio est fortissima in

lege,’” e.g., State ex rel. Cunningham v. Bd. of

Assessors of Par. Of Orleans, 52 La. Ann. 223, 238, 26

So. 872, 879 (1898), a statute must be considered in

the light of all circumstances existing at the time of

its enactment. In February 2020, just shy of ten

months after Creekstone Juban, Louisiana Bill Digest

indicated a proposed change to Section 22:868, i.e.,

Present law provides that no insurance

contract made in the state of Louisiana shall

contain any condition, stipulation, or

74a

agreement depriving the courts of this state of

jurisdiction of action against the insurer.

Proposed law provides that no insurance

contract made in the state of Louisiana shall

contain any condition, stipulation, or

agreement depriving the courts of this state of

venue or jurisdiction of action against the

insurer.

Louisiana Bill Digest, Original, 2020 Reg. Sess. S.B.

156 (emphasis added). Thus, a proposed inclusion of

“venue” into Section 22:868 arose shortly after the

Louisiana Supreme Court in Creekstone Juban

reversed the trial court’s denial of exception of

improper venue, holding that pre-amendment Section

22:868 did not prohibit enforcement of a forum

selection clause. 282 So. 3d at 1044, 1050. The effect

of Section 22:868 pre-amendment and post-Creekstone

Juban was to preclude enforcement of arbitration

clauses but not preclude forum and venue selection

clauses because the former are jurisdictional whereas

the latter are not. See Creekstone Juban, 282 So. 3d at

1047 (“[Section 22:868’s] plain language addresses

jurisdiction only and forum selection clauses do not

deprive the Louisiana court of jurisdiction over the

action.”).

When a statute is clear and unambiguous and its

application does not lead to absurd consequences, the

provision must be applied as written, with no further

interpretation made in search of the legislature’s

intent.” Auricchio v. Harriston, 332 So. 3d 660, 662–

63 (La. 2021); La. Civ. Code art. 9; R.S. § 1:4 (2023).

The added Section 22:868(D) provides: “The

provisions of Subsection A of this Section shall not

prohibit a forum or venue selection clause in a policy

75a

form that is not subject to approval by the Department

of Insurance.” The subject of Subsection D’s clause,

“[t]he provisions of Subsection A,” includes (A)(2)’s

anti-arbitration provision. Subsection D’s clause’s

active verb is “shall not prohibit.” The objects of

Subsection D’s clause, “a forum or venue selection

clause” thus carve out only a part of the Subsection

A’s prohibitory effect. Consequently, based on the

clear nature of the text, the Court’s interpretation of

Subsection D is that its prohibitive effect on

Subsection A is limited to only forum and venue

selection clauses in surplus lines policies. What

remains of Subsection A’s effect post-amendment is

the full extent of the law pre-Creekstone Juban minus

forum and venue selection clauses found in surplus

lines policies. Based on the text of Section 22:868, the

Court cannot, as the Defendants argue with scant

support, arrive at an interpretation that conflates

arbitration clauses with forum and venue clauses; the

former is jurisdictional whereas the latter are not.

Thus, to read arbitration clauses into the text of

Subsection D would be to confer a different meaning

than intended by the legislators. As such, the Court

finds that Louisiana’s anti-arbitration law is

applicable here.

Vinton also contends that choice of law in this case

points to Louisiana. Louisiana law requires all

insurers doing business in Louisiana to comply with

the Insurance Code. Louisiana Revised Statute 22:12.

Louisiana Revised Statute 22:868(A)(1) prohibits “any

condition, stipulation, or “agreement” in an insurance

contract “requiring it to be construed according to the

laws of any other state. Louisiana Revised Statute

9:2778 prohibits “any provision in a contract”

“involving ... a political subdivision of the state” that

76a

“requires interpretation of the agreement according to

the laws of another jurisdiction.” The Arbitration

Agreement provides that “[t]he seat of the Arbitration

shall be in New York and the Arbitration Tribunal

shall apply the law of New York as the proper law of

this insurance,” and further states that “[t]he

Arbitration Tribunal may not award exemplary,

punitive, multiple, consequential, or other damages of

a similar nature.” Thus, the Policy’s language allows

Insurers to circumvent by contract, Louisiana’s laws

that regulate how insurance companies handle firstparty claim in direct contravention of this State’s law

that are meant to protect insureds. Louisiana Revised

Statute 9:2778 prohibits any provision involving a

political subdivision such as Vinton that requires the

application of another state’s laws.

CONCLUSION

The Court finds that the Arbitration Agreements

are reverse-preempted by Louisiana Revised Statute

22:868(A)(2), and Louisiana law prohibits the choice

of law provisions. Louisiana Revised Statute

22:868(A)(1) and Louisiana Revised Statute 9:2778.

As such,

IT IS ORDERED that Defendant’s Motion to

Compel Arbitration and Stay the Proceedings (Doc. 6)

is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s

Motion for Oral Argument (Doc. 11) is DENIED.

THUS DONE AND SIGNED in Chambers on

this 14th day of December, 2023.

77a

78a

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-30035

TOWN OF VINTON,

Plaintiff—Appellee,

versus

INDIAN HARBOR INSURANCE COMPANY; LEXINGTON

INSURANCE COMPANY; QBE SPECIALTY INSURANCE

COMPANY; STEADFAST INSURANCE COMPANY; UNITED

SPECIALTY INSURANCE COMPANY; GENERAL SECURITY

INDEMNITY COMPANY OF ARIZONA; OLD REPUBLIC

UNION INSURANCE COMPANY; SAFETY SPECIALTY

INSURANCE COMPANY,

Defendants—Appellants,

CONSOLIDATED WITH

No. 24-30748

POLICE JURY OF CAMERON PARISH,

Plaintiff—Appellee,

versus

INDIAN HARBOR INSURANCE COMPANY; QBE

SPECIALTY INSURANCE COMPANY; STEADFAST

INSURANCE COMPANY; GENERAL SECURITY INDEMNITY

COMPANY OF ARIZONA; UNITED SPECIALTY INSURANCE

COMPANY; LEXINGTON INSURANCE COMPANY; SAFETY

79a

SPECIALTY INSURANCE COMPANY; OLD REPUBLIC

UNION INSURANCE COMPANY,

Defendants—Appellants,

CONSOLIDATED WITH

No. 24-30749

CAMERON PARISH RECREATION #6,

Plaintiff—Appellee,

versus

INDIAN HARBOR INSURANCE COMPANY; QBE

SPECIALTY INSURANCE COMPANY; GENERAL SECURITY

INDEMNITY COMPANY OF ARIZONA; UNITED SPECIALTY

INSURANCE COMPANY; LEXINGTON INSURANCE

COMPANY; SAFETY SPECIALTY INSURANCE COMPANY;

OLD REPUBLIC UNION INSURANCE COMPANY

Defendants—Appellants,

CONSOLIDATED WITH

No. 24-30750

CERTAIN UNDERWRITERS AT LLOYDS LONDON,

SUBSCRIBING TO POLICY NO AMR-60898-02; INDIAN

HARBOR INSURANCE COMPANY; QBE SPECIALTY

INSURANCE COMPANY; GENERAL SECURITY INDEMNITY

COMPANY OF ARIZONA; UNITED SPECIALTY INSURANCE

COMPANY; LEXINGTON INSURANCE COMPANY; SAFETY

SPECIALTY INSURANCE COMPANY; HDI GLOBAL

SPECIALTY SE; OLD REPUBLIC UNION INSURANCE

COMPANY,

Plaintiffs—Appellants,

80a

versus

CAMERON PARISH RECREATION #6,

Defendant—Appellee,

CONSOLIDATED WITH

No. 24-30751

CERTAIN UNDERWRITERS AT LLOYDS LONDON

SUBSCRIBING TO POLICY NO AMR-42386-05; INDIAN

HARBOR INSURANCE COMPANY; QBE SPECIALTY

INSURANCE COMPANY; STEADFAST INSURANCE

COMPANY; GENERAL SECURITY INDEMNITY COMPANY

OF ARIZONA; UNITED SPECIALTY INSURANCE COMPANY;

LEXINGTON INSURANCE COMPANY; SAFETY SPECIALTY

INSURANCE COMPANY; HDI GLOBAL SPECIALTY SE;

OLD REPUBLIC UNION INSURANCE COMPANY,

Plaintiffs—Appellants,

versus

POLICE JURY OF CAMERON PARISH

Defendant—Appellee,

CONSOLIDATED WITH

No. 24-30756

SCHOOL BOARD OF CAMERON PARISH,

Plaintiff—Appellee,

versus

INDIAN HARBOR INSURANCE COMPANY; QBE

SPECIALTY INSURANCE COMPANY; STEADFAST

INSURANCE COMPANY; GENERAL SECURITY INDEMNITY

81a

COMPANY OF ARIZONA; UNITED SPECIALTY INSURANCE

COMPANY; LEXINGTON INSURANCE COMPANY; SAFETY

SPECIALTY INSURANCE COMPANY; OLD REPUBLIC

UNION INSURANCE COMPANY,

Defendants—Appellants,

CONSOLIDATED WITH

No. 24-30757

CERTAIN UNDERWRITERS AT LLOYDS LONDON,

SUBSCRIBING TO POLICY NO AMR-41923-05; INDIAN

HARBOR INSURANCE COMPANY; QBE SPECIALTY

INSURANCE COMPANY; STEADFAST INSURANCE

COMPANY; GENERAL SECURITY INDEMNITY COMPANY

OF ARIZONA; UNITED SPECIALTY INSURANCE COMPANY;

LEXINGTON INSURANCE COMPANY; SAFETY SPECIALTY

INSURANCE COMPANY; HDI GLOBAL SPECIALTY SE;

OLD REPUBLIC UNION INSURANCE COMPANY,

Plaintiffs—Appellants,

versus

SCHOOL BOARD OF CAMERON PARISH

Defendant—Appellee.

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 2:23-CV-240

USDC No. 2:22-CV-5348

USDC No. 2:22-CV-5287

USDC No. 2:22-CV-5286

USDC No. 2:22-CV-5345

82a

USDC No. 2:22-CV-5283

USDC No. 2:22-CV-5280

ON PETITION FOR REHEARING EN BANC

Before HAYNES, HO, and OLDHAM, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc as a

petition for panel rehearing (5TH CIR. R.40 I.O.P.), the

petition for panel rehearing is DENIED. Because no

member of the panel or judge in regular active service

requested that the court be polled on rehearing en

banc (FED. R. App. P.40 and 5TH CIR. R.40), the

petition for rehearing en banc is DENIED.

*Judge Jerry E. Smith, James L. Dennis, did not participate in

the consideration of the rehearing en banc.

83a

APPENDIX J

9 U.S.C. § 201. Enforcement of Convention

The Convention on the Recognition and

Enforcement of Foreign Arbitral Awards of June 10,

1958, shall be enforced in United States courts in

accordance with this chapter.

9 U.S.C. § 202. Agreement or award falling under

the Convention

An arbitration agreement or arbitral award

arising out of a legal relationship, whether

contractual or not, which is considered as commercial,

including a transaction, contract, or agreement

described in section 2 of this title, falls under the

Convention. An agreement or award arising out of

such a relationship which is entirely between citizens

of the United States shall be deemed not to fall under

the Convention unless that relationship involves

property located abroad, envisages performance or

enforcement abroad, or has some other reasonable

relation with one or more foreign states. For the

purpose of this section a corporation is a citizen of the

United States if it is incorporated or has its principal

place of business in the United States.

U.S.C. § 203. Jurisdiction;

controversy

amount

An action or proceeding falling under the

Convention shall be deemed to arise under the laws

and treaties of the United States. The district courts

of the United States (including the courts enumerated

in section 460 of title 28) shall have original

84a

jurisdiction over such an action or proceeding,

regardless of the amount in controversy.

9 U.S.C. § 204. Venue

An action or proceeding over which the district

courts have jurisdiction pursuant to section 203 of this

title may be brought in any such court in which save

for the arbitration agreement an action or proceeding

with respect to the controversy between the parties

could be brought, or in such court for the district and

division which embraces the place designated in the

agreement as the place of arbitration if such place is

within the United States.

9 U.S.C. § 205. Removal of cases from State

courts

Where the subject matter of an action or

proceeding pending in a State court relates to an

arbitration agreement or award falling under the

Convention, the defendant or the defendants may, at

any time before the trial thereof, remove such action

or proceeding to the district court of the United States

for the district and division embracing the place

where the action or proceeding is pending. The

procedure for removal of causes otherwise provided by

law shall apply, except that the ground for removal

provided in this section need not appear on the face of

the complaint but may be shown in the petition for

removal. For the purposes of Chapter 1 of this title

any action or proceeding removed under this section

shall be deemed to have been brought in the district

court to which it is removed.

85a

9 U.S.C. § 206. Order to compel arbitration;

appointment of arbitrators

A court having jurisdiction under this chapter

may direct that arbitration be held in accordance with

the agreement at any place therein provided for,

whether that place is within or without the United

States. Such court may also appoint arbitrators in

accordance with the provisions of the agreement.

U.S.C.

§ 207.

Award

arbitrators;

confirmation; jurisdiction; proceeding

Within three years after an arbitral award falling

under the Convention is made, any party to the

arbitration may apply to any court having jurisdiction

under this chapter for an order confirming the award

as against any other party to the arbitration. The

court shall confirm the award unless it finds one of the

grounds for refusal or deferral of recognition or

enforcement of the award specified in the said

Convention.

9 U.S.C. § 208. Application

Chapter 1 applies to actions and proceedings

brought under this chapter to the extent that chapter

is not in conflict with this chapter or the Convention

as ratified by the United States. This chapter applies

to the extent that this chapter is not in conflict with

chapter 4.

86a

APPENDIX K

Convention

the

Recognition

and

Enforcement

Foreign

Arbitral

Awards, June 10, 1958, 21 U.S.T. 2517

(New York Convention), Articles II(1)-(2),

XI(a).

Article II

1. Each Contracting State shall recognize an

agreement in writing under which the parties

undertake to submit to arbitration all or any

differences which have arisen or which may arise

between them in respect of a defined legal

relationship, whether contractual or not, concerning a

subject matter capable of settlement by arbitration.

2. The term “agreement in writing” shall include

an arbitral clause in a contract or an arbitration

agreement, signed by the parties or contained in an

exchange of letters or telegrams.

…

Article XI

In the case of a federal or non-unitary State, the

following provisions shall apply:

(a) With respect to those articles of this convention

that come within the legislative jurisdiction of the

federal authority, the obligations of the federal

Government shall to this extent be the same as those

of Contracting States which are not federal States;

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.