Barnhardt Marine Ins., Inc. v. New England Int'l Sur. of Am., Inc., Hendrik Rienstra, 961 F.2d 529 (5th Cir. 1992). · Go Syfert
Barnhardt Marine Ins., Inc. v. New England Int'l Sur. of Am., Inc., Hendrik Rienstra, 961 F.2d 529 (5th Cir. 1992). Cases Citing This Book View Copy Cite
46 citation events (16 in the last 25 years) across 15 distinct courts.
Strongest positive: MC Trilogy Texas LLC v. City of Heath Texas (txnd, 2023-12-21) · Strongest negative: Webb v. B.C. Rogers Poultry, Inc. (ca5, 1999-05-27)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 28 distinct citers.
examined Cited "but see" Webb v. B.C. Rogers Poultry, Inc. (3×) also: Cited as authority (rule), Cited "see, e.g."
5th Cir. · 1999 · signal: but see · confidence high
But see 15 U.S.C. § 1012 (b) ("No Act of Congress shall be construed to invalidate, impair, or supercede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance....") 32 See Burford, 319 U.S. at 325-27 , 63 S.Ct. 1098 33 Barnhardt Marine Ins., Inc. v. New England Int'l Surety of Am., Inc., 961 F.2d 529, 532 (5th Cir.1992) 34 TEX.
cited Cited as authority (rule) MC Trilogy Texas LLC v. City of Heath Texas
N.D. Tex. · 2023 · confidence medium
Int’l Sur. of Am., Inc., 961 F.2d 529, 531 (5th Cir. 1992) (citations omitted).
discussed Cited as authority (rule) Richardson v. United States
Fed. Cl. · 2021 · confidence medium
In other words, priorities that indirectly assure that policyholders get what they were promised can also trigger McCarran–Ferguson protection. . . .” (citing Fabe, 508 U.S. at 495 n.2, 509)); Clark v. Fitzgibbons, 105 F.3d 1049, 1051 (5th Cir. 1997) (“[A]llowing a creditor or claimant to proceed against an insolvent insurer in federal court while a state insolvency proceeding is pending would ‘usurp [the state’s] control over the liquidation proceeding by allowing [the claimant] to preempt others in the distribution of [the insurance company’s] assets.’” (alteration in origina…
cited Cited as authority (rule) Becnel v. Lamorak Insurance Company
E.D. La. · 2021 · confidence medium
Barnhardt Marine Ins., Inc. v. New England International Surety of America, Inc., 961 F.2d 529, 531 (5th Cir. 1992).
cited Cited as authority (rule) Aransas Project v. Bryan Shaw
5th Cir. · 2014 · confidence medium
Inc. v. New England Int’l Surety of Am., Inc., 961 F.2d 529, 531 (5th Cir.1992) (insurance). 6 .
cited Cited as authority (rule) Aransas Project v. Bryan Shaw
5th Cir. · 2014 · confidence medium
Inc. v. New England Int’l Surety of Am., Inc., 961 F.2d 529, 531 (5th Cir.1992) (insurance). 6 .
discussed Cited as authority (rule) Lentz v. TRINCHARD
E.D. La. · 2010 · confidence medium
It is true that Courts frequently abstain “in deference to state insurance insolvency or liquidation proceedings.” Clark, 105 F.3d at 1052 ; see also Callon, 351 F.3d at 209 ; Barnhardt Marine Ins. v. New England Int’l Sur. of Am., Inc., 961 F.2d 529, 531 (5th Cir.1992).
examined Cited as authority (rule) Health Net, Inc. v. Wooley (3×) also: Cited "see"
5th Cir. · 2008 · confidence medium
For these reasons, the doctrine of Younger abstention directs the federal district court to abstain from exercising its federal question jurisdiction and allow Health Net to pursue its claim in the state courts. *496 Burford abstention, 6 on the other hand, is appropriate in two circumstances: first, when a case involves “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the particular case at bar,” and second, when “the exercise of federal jurisdiction over the question in the case would disrupt state effor…
cited Cited as authority (rule) Phico Insurance v. Pavia Health, Inc.
D.P.R. · 2006 · confidence medium
Int’l Sur. of Am., Inc., 961 F.2d 529, 531-32 (5th Cir.1992); Hartford Cas.
discussed Cited as authority (rule) Callon Petroleum Co. v. Frontier Insurance
5th Cir. · 2003 · confidence medium
See, e.g., Clark v. Fitzgibbons, 105 F.3d 1049, 1051-52 (5th Cir.1997); Barnhardt Marine Ins., Inc. v. New England Int’l Surety of Amer., Inc., 961 F.2d 529, 531-32 (5th Cir.1992); Martin Insurance Agency, Inc. v. Prudential Reinsurance Co., 910 F.2d 249, 255 (5th Cir.1990); Gonzalez v. Media Elements, Inc., 946 F.2d 157 (1st Cir.1991); Law Enforcement Insurance Co. v. Corcoran, 807 F.2d 38 (2d Cir.1986); Lac D’Amiante du Quebec Ltee v. American Home Assurance Co., 864 F.2d 1033 (3d Cir.1988); Hartford Casualty Insurance Co. v. Borg-Warner Corp., 913 F.2d 419 (7th Cir.1990); Grimes v. Crow…
discussed Cited as authority (rule) Jones v. Caldwell
vacc · 2003 · confidence medium
As a consequence, “[t]he states have primary responsibility for regulating the insurance industry.” Barnhardt Marine Ins., Inc. v. New England International Surety of Am., Inc., 961 F.2d 529, 531 (5th Cir. 1992).
discussed Cited as authority (rule) Commissioner of Insurance of Michigan v. DMD Kyoto Plaza Shopping Center, L.L.C.
W.D. Mich. · 1998 · confidence medium
See S.E.C. v. National Securities, Inc., 393 U.S. 453, 458 , 89 S.Ct. 564, 567-68 , 21 L.Ed.2d 668 (1969); Barnhardt Marine Ins., Inc. v. New England Int’l Sur. of Am., Inc., 961 F.2d 529, 531 (5th Cir.1992)....
cited Cited as authority (rule) Prestage Farms v. Bd. of Supervisors of Noxubee Co.
N.D. Miss. · 1998 · confidence medium
Of America Inc., 961 F.2d 529, 531 (5th Cir.1992).
cited Cited as authority (rule) Lewis v. Beddingfield
5th Cir. · 1994 · confidence medium
Surety of America, Inc., 961 F.2d 529, 531 (5th Cir.1992).
cited Cited as authority (rule) Todd v. Richmond
D. Kan. · 1994 · confidence medium
Sur., 961 F.2d 529, 532 (5th Cir.1992); Hartford Ins.
cited Cited as authority (rule) Wilson v. Valley Electric Membership Corp.
5th Cir. · 1993 · confidence medium
Corp., 460 U.S. 1, 8-13 , 103 S.Ct. 927, 932-36 , 74 L.Ed.2d 765 (1983); Barnhardt Marine Ins., Inc. v. New England Int'l Sur. of America, Inc., 961 F.2d 529, 531 (5th Cir.1992). 2 .
discussed Cited as authority (rule) Deborah A. KERSHAW, Plaintiff-Appellant, v. Donna E. SHALALA Secretary, U.S. Department of Health and Human Services, Defendant-Appellee
5th Cir. · 1993 · confidence medium
This Circuit has also found the Moses Cone exception to apply to cases involving Burford-type abstention, Barnhardt Marine Ins. v. New England Int'l Surety of America, Inc., 961 F.2d 529, 531 (5th Cir.1992), as well as federal court abstention under the Younger doctrine.
discussed Cited as authority (rule) Kershaw v. Shalala
5th Cir. · 1993 · confidence medium
This Circuit has also found the Moses Cone exception to apply to cases involving Burford-type abstention, Bernhardt Marine Ins. v. New England Int'l Surety of America, Inc., 961 F.2d 529, 531 (5th Cir. 1992), as well as federal court abstention under the Younger doctrine.
discussed Cited as authority (rule) U.S. Financial Corp. v. Warfield
D. Ariz. · 1993 · confidence medium
Compare Fragoso v. Lopez, 991 F.2d 878, 882-84 (1st Cir.1993) (stating that “NOPSI cabins the operation of the Bwrford doctrine”; court did not abstain) and Melahn v. Pennock Ins., Inc., 965 F.2d 1497, 1505 (8th Cir.1992) (refusing to apply the Bwrford doctrine and concluding that NOPSI undermined -prior cases applying Burford) and University of Md. v. Peat Marwick Main & Co., 923 F.2d 265, 272 (3d Cir.1991) (intimating that NOPSI might have undermined the Third Circuit’s prior decision in LAQ) with Barndhardt Marine Ins., Inc. v. New England Int’l Surety of Am., 961 F.2d 529, 531 (5th…
cited Cited as authority (rule) De Conway v. Lopez
1st Cir. · 1993 · confidence medium
Int'l Sur. of Am., Inc., 961 F.2d 529, 531-32 (5th Cir. 1992) (upholding abstention in an action to recover premiums on canceled policies); Martin Ins.
cited Cited as authority (rule) Carmen Fragoso, A/K/A Carmen Fragoso De Conway v. Dr. Maria A. Lopez
1st Cir. · 1993 · confidence medium
Int’l Sur. of Am., Inc., 961 F.2d 529, 531-32 (5th Cir.1992) (upholding abstention in an action to recover premiums on canceled policies); Martin Ins.
discussed Cited as authority (rule) Colle v. Brazos County, Tex.
5th Cir. · 1993 · confidence medium
Co., 914 F.2d 83, 85 (5th Cir.1990)) 4 The NA provided: "Plaintiffs give notice of appeal to the United States Court of Appeals for the Fifth Circuit from the final judgment entered in this case on April 18, 1990." 5 The plaintiffs identified and remaining at the district court's final judgment of dismissal of April 18, 1990 were Ruby Colle, individually and on behalf of Ricky Samuel Colle, a minor; Edna Colle, individually and on behalf of the Estate of Richard Lee Colle, deceased; and Judy Davidson, on behalf of Tara Rose Colle, a minor 6 Barnhardt Marine Ins., Inc. v. New England Surety of …
discussed Cited as authority (rule) Colle v. Brazos County, Tex.
5th Cir. · 1993 · confidence medium
Barnhardt Marine Ins., Inc. v. New England Surety of America, Inc., 961 F.2d 529, 536 (5th Cir.1992) (citing Torres v. Oakland Scavenger Co., 487 U.S. 312 , 108 S.Ct. 2405 , 101 L.Ed.2d 285 (1988)). 7 .
discussed Cited as authority (rule) General Railway Signal Co. v. Corcoran (2×) also: Cited "see, e.g."
N.D. Ill. · 1992 · confidence medium
Corp. v. Monsour Medical Found., 973 F.2d 197 , 201 (3d Cir.1992); Barnhardt Marine Ins., Inc. v. New England Int'l Sur. of America, Inc., 961 F.2d 529, 531 (5th Cir.1992); Gonzalez v. Media Elements, Inc., 946 F.2d 157, 157 (1st Cir.1991); Hartford Casualty Ins.
cited Cited "see" AXA Equitable Life Insurance v. Infinity Financial Group, LLC
S.D. Fla. · 2009 · signal: see · confidence high
See Barnhardt Marine Ins., Inc. v. New England International Surety of America, Inc., 961 F.2d 529, 531 (5th Cir.1992).
cited Cited "see" Cook v. Powell Buick, Inc.
5th Cir. · 1998 · signal: see · confidence high
See Barnhardt Marine Ins., Inc. v. New England Int’l Sur. of America, 961 F.2d 529 (5th Cir.1992) (separate document requirement is not jurisdictional and may be waived).
cited Cited "see, e.g." Susan Wolfson v. Mutual Benefit Life Insurance Company
8th Cir. · 1995 · signal: see, e.g. · confidence low
See, e.g., Barnhardt Marine Ins., Inc. v. New England Internat'l Sur. of Amer., Inc., 961 F.2d 529 (5th Cir.1992); Grimes v. Crown Life Ins.
discussed Cited "see, e.g." Todd v. DSN Dealer Service Network, Inc.
D. Kan. · 1994 · signal: see, e.g. · confidence medium
See, e.g., Bamhardt Marine Insurance, Inc. v. New England International Surety of America, Inc., 961 F.2d 529, 531 (5th Cir. 1992); Peat Marwick, 923 F.2d at 271; Martin Insurance Agency v. Prudential Reinsurance Co., 910 F.2d 249, 254-55 (5th Cir. 1990); Grimes, 857 F.2d at 703-04 ; Lac *1543 D'Armante du Quebec, Ltee. v. American Home Assurance Co., 864 F.2d 1033 (3d Cir. 1988); Corcoran v. Ardra Insurance Co., 842 F.2d 31, 36 (2d Cir.1988).
BARNHARDT MARINE INSURANCE, INC., Plaintiff-Appellant,
v.
NEW ENGLAND INTERNATIONAL SURETY OF AMERICA, INC., Defendant, Hendrik Rienstra, Defendant-Appellee
91-3517.
Court of Appeals for the Fifth Circuit.
May 26, 1992.
961 F.2d 529
Ellis B. Murov, Bernard Marcus, Duris L. Holmes, John F. Willis, Deutsch, Kerrigan & Stiles, New Orleans, La., for plaintiff-appellant., Henry Philip Julien, Jr., Julien & Julien, New Orleans, La., for defendant-appellee.
Politz, Smith, Fitzwater.
Cited by 38 opinions  |  Published
POLITZ, Chief Judge:

Barnhardt Marine Insurance, Inc. appeals an order staying this case pending final resolution of a state court proceeding. Concluding that Burford abstention is appropriate, we affirm.

Background

Barnhardt, an insurance broker and agent, obtained marine insurance through New England International Surety of America, Inc. (NEISA). Barnhardt paid premiums to NEISA for its clients. In April of 1989 the state court in Baton Rouge, Louisiana placed NEISA in rehabilitation upon information from the Commissioner of Insurance that NEISA had abandoned its business operations and ceased paying claims. The following September the state court ordered liquidation, placed NEISA under the direction and control of the Commissioner, and stayed all suits and seizures against the insurer. [1] In the liquidation, the policies Barnhardt had placed were canceled, resulting in unearned premiums totaling $630,182.10. Barnhardt refunded the premiums to its clients and acquired their rights as subrogee.

Barnhardt brought the instant suit in federal court to recover the premiums on the canceled policies. NEISA and its President and Chairman of the Board, Heindrik Rienstra, were named as defendants. The claim against NEISA is based on breach of contract and unjust enrichment. Barn-hardt alleges that Rienstra is personally liable because he depleted NEISA’s funds by paying claims which NEISA did not owe. Rienstra is also charged with controlling the NEISA accounts and causing NEI-SA to be undercapitalized. NEISA and Rienstra filed third-party claims against the Commissioner for canceling the policies. The Commissioner counterclaimed against Rienstra for breach of his fiduciary duties to NEISA.

In a Minute Entry the district court administratively closed the case until all causes and proceedings in the state court liquidation were concluded. The court ruled that because NEISA was in liquidation, all claims had to be filed with the liquidator and given the proper priority in the state court proceeding. The court reasoned that Barnhardt’s claims against Rienstra violated the state court stay because they were derivative of the contract and the unjust enrichment claims against NEISA. Barnhardt moved for reconsideration of the administrative stay contending that the personal claims against Rienstra were unaffected by the state liquidation proceedings. In a second Minute Entry the court denied the reconsideration motion, explaining that pursuit of the derivative claims against Rienstra would involve the same assets that the Commissioner was to distribute in NEISA’s liquidation. The district court concluded that Barnhardt’s recovery in the federal suit would allow it to leap ahead of NEISA’s other creditors in a manner inconsistent with Louisiana’s insurance liquidation scheme. Barnhardt timely appeals.

[*531] Analysis

The decision of a district court to stay a suit pending state court proceedings is final for purposes of appellate jurisdiction. Allen v. Louisiana State Board of Dentistry, 835 F.2d 100 (5th Cir.1988) (citing Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)); see also Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) (stay entered on abstention grounds is final). Because the administrative stay is an appealable order, the appeal in this case may be taken from the district court’s Minute Entries. See Loeber v. Bay Tankers, Inc., 924 F.2d 1340 (5th Cir.), cert. denied, - U.S. -, 112 S.Ct. 78, 116 L.Ed.2d 51 (1991) (interlocutory appeal from Minute Entry order); United States v. 119.67 Acres of Land, 663 F.2d 1328 (5th Cir. Unit A 1981) (Minute Entry an appealable order pursuant to the Cohen doctrine); Gloria Steamship Co. v. Smith, 376 F.2d 46, 47 (5th Cir.1967) (“The Minute Entry dismissing the petition to implead was an appealable interlocutory order.”). [2]

The order in this case is not contained in a “separate document” as required by Fed. R.Civ.P. 58. See Theriot v. ASW Well Service, Inc., 951 F.2d 84 (5th Cir.1992) (appeal taken from a Minute Entry without compliance with the separate document requirement). We consistently have recognized, however, that the separate document requirement is not jurisdictional and may be waived. Simmons v. Willcox, 911 F.2d 1077, 1080-81 n. 6 (5th Cir.1990); Nagle v. Lee, 807 F.2d 435 (5th Cir.1987); Hanson v. Flower Mound, 679 F.2d 497 (5th Cir.1982); Ringwald v. Harris, 675 F.2d 768, 769 n. 2 (5th Cir.1982). Here, neither party has insisted upon a separate document nor objected to the lack thereof. We deem the requirement waived.

We conclude that the administrative closure was a proper application of Bur-ford abstention. [3] The Burford doctrine is appropriate in two circumstances. First, the federal court should abstain from difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the particular case at bar. New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). Second, the federal court should abstain if the exercise of federal jurisdiction over the question in the case would disrupt state efforts to establish a coherent policy with respect to a. matter of substantial public concern.

The states have primary responsibility for regulating the insurance industry. See 15 U.S.C. §1011 (declaration of Congressional policy for the McCarran-Ferguson Act). Louisiana’s insurance laws provide a comprehensive framework for the liquidation of insolvent insurance companies and the resolution of claims against them. See La. R.S. 22:731-756; Uniform Insurers Liquidation Act, La. R.S. 22:757-763. Burford-type abstention is appropriate in an action against an insurance company which is the subject of a Louisiana liquidation proceeding. Martin Insurance Agency, Inc. v. Prudential Reinsurance Co., 910 F.2d 249 (5th Cir.1990). [4]

[*532] Barnhardt vigorously maintains that its claims are against Rienstra and not against the insolvent insurer. Because Barnhardt seeks to recover the same assets, litigation of Barnhardt’s claims in federal court would usurp Louisiana’s control over the liquidation proceeding by allowing Barnhardt to preempt others in the distribution of NEISA’s assets. This result would be inconsistent with the McCarranFerguson Act and with the comity rationale promoted by the Burford doctrine. See Hartford Casualty Insurance Company v. Borg-Warner Corp., 918 F.2d 419 (7th Cir.1990) (Burford abstention exercised in action against parent company of an insolvent insurer).

In addition, Barnhardt’s claims against Rienstra encroach upon the exclusive power that Louisiana has granted to the Commissioner in his capacity as liquidator. Barnhardt proffers three theories for Rienstra’s liability: (1) Rienstra depleted NEISA’s funds by paying claims for which NEISA was not liable, (2) Rienstra controlled the NEISA accounts, and (3) Riens-tra caused NEISA to be undercapitalized. Each theory seeks to hold Rienstra liable for NEISA's duty to refund the unpaid premiums. Compare this to the duty of the liquidator of an insolvent insurer to identify, gather, and liquidate the assets of the insurer and to use those assets to satisfy debts. Green v. Champion Insurance Co., 577 So.2d 249 (La.App.), cert. denied, 580 So.2d 668 (La.1991) (citing La.R.S. 22:731-764). In granting the liquidator the power to gather the assets properly within the liquidation, Louisiana law vests the concomitant power to pursue assets in the hands of non-insurers. Green, 577 So.2d at 259-60 (citing La.R.S. 22:737). For example, the liquidator may avoid fraudulent transfers and may recover fraudulently conveyed assets of the insolvent insurer. See La.R.S. 22:745.

The Commissioner is the appropriate party to bring all such claims; the state court is the appropriate forum to exercise jurisdiction over all such claims. The Louisiana Legislature clearly intended this result in fashioning the laws controlling the distribution of an insolvent insurer’s assets. Louisiana's insurance liquidation laws "apply to all insurers or persons purporting to be doing an insurance business in this state_” La.R.S. 22:732 (emphasis added). A state court presiding over a liquidation proceeding has authority to issue injunctions or other orders necessary to prevent interference with the Commissioner’s title, rights, or interests in the insurer’s assets. La.R.S. 22:734. The state court’s injunctive power extends to the insurer’s “officers, agents, directors, employees and all other persons.” In using this broad language, the Louisiana Legislature clearly empowered state courts to issue all orders made necessary by the myriad circumstances arising in a liquidation proceeding. Green, 577 So.2d at 260. Persons who may have access, control, or possession of the insurer’s assets are properly before the state court. The allegations against Rienstra should be resolved in the state liquidation proceeding, with all of NEISA’s creditors equally benefiting from Louisiana’s insurance liquidation protocols.

For the reasons assigned, the decision of the district court is AFFIRMED.

1

. The Liquidation Order provided as follows:

(a) That New England ... be and is placed in liquidation.
(b) That Douglas D. Green ... is vested ... with title to all property, contracts, and rights of action with New England ...
(c)That all suits and seizures against New England International Surety of America, Inc. be and are hereby stayed to prevent any preference, judgment or lien being rendered against New England International Surety of America, Inc.

Green v. New England International Surety, Inc., No. 342,555 (19th Judicial District Court La. September 22, 1989) (unpublished order).

2

. But note Jones v. Celotex Corp., 857 F.2d 273 (5th Cir.1988) (where a signed separate document entitled "Judgment” was entered, appeal had to be taken from the judgment and not from an earlier Minute Entry).

3

. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943).

4

. With one exception, the Courts of Appeals are in unanimous agreement with Martin on the issue of Burford-type abstention. See Gonzalez v. Media Elements, Inc., 946 F.2d 157 (1st Cir.1991); Law Enforcement Insurance Co. v. Corcoran, 807 F.2d 38 (2d Cir.1986), cert. denied, 481 U.S. 1017, 107 S.Ct. 1896, 95 L.Ed.2d 503 (1987); Lac D’Amiante du Quebec Ltee v. American Home Assurance Co., 864 F.2d 1033 (3d Cir.1988); Hartford Casualty Insurance Co. v. Borg-Warner Corp., 913 F.2d 419 (7th Cir.1990)[*532] (insurance company in rehabilitation); Grimes v. Crown Life Insurance Co., 857 F.2d 699 (10th Cir.1988), cert. denied, 489 U.S. 1096, 109 S.Ct. 1568, 103 L.Ed.2d 934 (1989). But see Bilden v. United Equitable Insurance Co., 921 F.2d 822 (8th Cir.1990).