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Forum Non Conveniens Dismissal Is Not A Judgment On The Merits\\n\\nThe Fifth Circuit Court of Appeals resolved insurance issues concerning \\ncable-damage in the Arabian Gulf by recognizing the difference between a\\n broker and an agent, the place where - and to whom - a policy was \\ndelivered, and how to deal with the issue personal jurisdiction the \\ncourt has over the parties and that a forum non conveniens dismissal is \\nnot a judgment on the merits; it is, instead a determination that the \\nmerits should be adjudicated elsewhere.\\n\\nIn Dynamic Industries, et al v. Walaa Cooperative Insurance Company; \\nMarsh & McLennan et al, No. 22-30033, United States Court of \\nAppeals, Fifth Circuit (March 13, 2023) the disputes were resolved.\\n\\nCLAIM OF INSUREDS\\n\\nThe insureds (Dynamic) assert that their insurance brokers (Marsh) \\nfailed to procure adequate insurance coverage from the insurer (Walaa), \\nor in the alternative, that Walaa breached the insurance policy by \\ndeclining coverage for an incident involving undersea cable-damage in \\nthe Arabian Gulf. \\n\\nDISCUSSION\\n\\nFirst, as for Marsh, Louisiana law requires insureds who wish to sue \\ntheir insurance broker to do so "within one year from the date that the \\nalleged act, omission, or neglect . . . should have been discovered." \\n[La. Rev. Stat. \\xa7 9:5606].\\n\\nCase Against Broker\\n\\nDynamic sued Marsh after Walaa denied coverage. But Dynamic received a \\ncopy of the insurance policy from Walaa almost 18 months earlier. When \\nDynamic received that copy, it also received constructive notice of any \\ndeficiencies that the policy contained. Dynamic\'s claims against Marsh \\nare therefore untimely.\\n

Choice of Jurisdiction\\n\\nDynamic argued that the Walaa policy\'s choice of Saudi Arabian law is \\nunenforceable, under Louisiana law, if the policy was "delivered" in \\nLouisiana. Dynamic says that it received delivery in Louisiana from \\nWalaa\'s agent - a Marsh affiliate known as Marsh KSA. Walaa responded \\nthat Marsh KSA was actually Dynamic\'s agent, and that delivery therefore\\n occurred in Saudi Arabia (where Walaa delivered the policy to Marsh \\nKSA). The Fifth Circuit agreed with Walaa since Marsh, as a broker, is \\nan agent of the insured not the insurer.\\n\\nUnder Louisiana law, an insurance broker is generally deemed to be the \\nagent of the insured rather than the insurer. A broker who is asked by \\nthe client to procure coverage wherever possible at the best price is \\nnot the agent of the insurer. Marsh KSA "approached" multiple insurers \\nlooking for a "competitive price" for Dynamic. Marsh KSA was thus \\nDynamic\'s agent.\\n\\nAfter conducting an independent assessment of the clause\'s \\nenforceability, the district court properly concluded that delivery \\noccurred in Saudi Arabia to the agent of the insured.\\n\\nLACK OF PERSONAL JURISDICTION\\n\\nSeparately, the district court concluded that it lacked personal \\njurisdiction over a Marsh affiliate known as Marsh & McLennan \\nCompanies, Inc. ("Marsh Inc.). Yet the district court\'s judgment \\ndismissed Dynamic\'s claims against Marsh Inc. "with prejudice" - that \\nis, on the merits. " A federal court generally may not rule on the \\nmerits of a case without first determining that it has jurisdiction over\\n the parties i.e., personal jurisdiction.\\n