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On October 2 and 3, the Bar Association of the Fifth Federal Circuit with the LSU Paul M. Hebert Law Center,  will host the 2017 Annual Appellate Advocacy Seminar in New Orleans.  Cost is $150 for 10.25 hours of Continuing Legal Education, including an hour of Professionalism and an hour of Ethics.

Circuit Judges Eugene Davis, Edward C. Prado and Gregg J. Costa will give practical advice on effective oral argument and brief writing.   

Observe oral arguments and get practical advice on appellate practice from the Court and seasoned attorneys.  In addition to a two hour writing workshop, there will be updates on Criminal practice, Civil practice and current issues before the Supreme Court.  This seminar is an ideal introduction into federal appellate practice, with specifics about Fifth Circuit procedures.

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The Pro Bono Program assists the Court by facilitating the appointment of pro bono counsel to represent pro se litigants. Pro Bono Panel members will, at the Court’s invitation, be appointed in civil appeals that, for example, present issues of first impression, complex facts or legal questions, or potentially meritorious claims warranting further briefing and/or oral argument.

   Pro bono appointments are made by the Court, and are limited to proceedings before this Court. Although oral argument is not guaranteed, cases selected for the Program are likely to meet the Court’s criteria for granting oral argument.

Fair Labor Lawyer by Marlene Trestman

The Clerk of Court for the Fifth Circuit has offered guidance for citation to the record on appeal.  

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The Daily Commentary (sample)

Sample case reviewed on July 11, 2017.
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Associated International Insurance Co. v. Scottsdale Insurance Co. 16-20465

Before REAVLEY, HAYNES, and COSTA, Circuit Judges.

REVERSED and REMANDED. (July 7, 2017).

Posted in Insurance, Reformation of Contract, Subrogation


Subrogation clauses, which are common in insurance policies, transfer rights from the insured to the insurer, allowing the latter to recover funds it paid to cover the former’s loss. “Subrogation is the substitution of one party for another such that the new party may assert the rights of the substituted party.” Cont’l Cas. Co. v. N. Am. Capacity Ins. Co., 683 F.3d 79, 85 (5th Cir. 2012). In this appeal, the Fifth Circuit had to decide whether the rights that flow through a subrogation clause allow an insurer to seek reformation of a contract between its insured and a third party.

The underlying Texas insurance case arose from an assault in an apartment complex owned by VDC-Matthew Ridge, Ltd. The plaintiff in that lawsuit sought recovery from Matthew Ridge and the property manager of the complex, Alpha-Barnes Real Estate Services, LLC. The lawsuit settled. Matthew Ridge had an insurance policy issued by Westfield Insurance Company that extended coverage to Alpha Barnes through its role as Matthew Ridge’s property manager. Westfield exhausted that policy in defending and settling the lawsuit for both the apartment complex and property manager. Matthew Ridge’s commercial umbrella insurer, Associated International Insurance Company, paid the portion of the settlement that was in excess of the Westfield policy. In the current litigation, Associated sought reimbursement from Scottsdale Insurance Company, an insurer that issued a commercial umbrella policy to Alpha. It pursued this relief despite the fact that the policy did not list the complex on the schedule of covered properties. Associated asserted that its right to seek reimbursement from Scottsdale on Alpha’s behalf was rooted in a subrogation clause in the policy it issued to Alpha. That clause stated that “if [Alpha] has rights to recover all or part of any payment [Associated has] made under [the] policy, those rights are transferred to [Associated].” Still, the umbrella policy did not list the property at issue. To get around this difficulty, Associated contended that it could reform the Alpha-Scottsdale agreement to include the apartment complex because it was omitted due to a mutual mistake between those contracting parties. Rejecting that argument, the District Court concluded that Associated had no standing to seek reformation. The District Court reasoned Associatied was not in privity with the Alpha-Scottsdale “agreement.” Associated appealed, arguing that it had standing as a subrogee to seek reformation on its insured’s behalf, a question unaddressed by Texas law.

The Fifth Circuit first decided that the District Court erred in reading reformation’s privity requirement to necessitate a specific connection to the Alpha-Scottsdale insurance policy. Privity in Texas instead focuses on the relationship to a party, thus, the standing question turned on whether Association was in privity with Alpha. The subrogation clause in the Associated-Alpha policy provided that connection. Courts generally treat subrogation as placing an insurer-subrogee in privity with its insured. See, e.g., St. Paul Fire & Marine Ins. v. State Volunteer Mut. Ins. Co., 212 F.3d 595 (5th Cir. 2000) (unpublished table decision) (holding, under Mississippi law, that a subrogee is in privity with a subrogor, allowing the subrogee to challenge a contract between the subrogor and a third party). This, the Court found, made sense as subrogation works much like an assignment; both transfer rights from the assignor to the assignee. See Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 397 (5th Cir. 2002) (Garza, J., concurring). And, as subrogees stand in the shoes of their insureds just like assignees “stand[ ] in the shoes of [ ] assignor[s],” Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex. 2000), the Court here concluded that privity necessary for reformation logically extends to the subrogation context.

That said, the Court found there to be no basis for it to consider the merits of the reformation claim as the case was dismissed on standing grounds at the pleading stage. The judgment of dismissal was reversed and remanded further proceedings during which the merits of reformation could be considered.

On Appeal from the United States District Court for the Southern District of Texas (Vanessa D. Gilmore).
Attorney for Appellant – Christopher Alan McKinney, Houston, TX
Attorney for Appellee – Kyle Douglas Giacco, Houston, TX

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