Certification on Whether an Insured’s Cooperation-Clause Breach Bars a Louisiana Direct Action Under a Claims-Made-and-Reported Policy

I. Introduction

Hargiss v. Princeton Excess & Surplus Lines Insurance Company (5th Cir. Apr. 15, 2026) arises from an excessive-force suit brought by Brian Patrick Hargiss against the Richland Parish Sheriff and deputies. The Sheriff was insured under a claims-made policy issued by Princeton to the Louisiana Sheriffs’ Law Enforcement Program (LSLEP), an interlocal risk pool.

After Hargiss obtained a judgment against the Sheriff and deputies, LSLEP sought payment from Princeton; Princeton denied coverage. Hargiss then sued Princeton directly under Louisiana’s Direct Action Statute, La. R.S. § 22:1269. The federal district court held that, even if LSLEP breached the policy’s cooperation clause and even if Princeton was prejudiced, that breach would not bar Hargiss’s direct action. On appeal, the Fifth Circuit concluded that Louisiana law is unsettled on this precise issue in the context of a claims-made-and-reported framework and therefore certified a dispositive question to the Louisiana Supreme Court under La. Sup. Ct. R. XII.

II. Summary of the Opinion

The Fifth Circuit does not decide the merits of coverage. Instead, it holds that it cannot make a “reliable Erie guess” about Louisiana law on a narrow but outcome-determinative question:

“Under a claims-made-and-reported policy, when the insured reports an insured event but breaches their duty to cooperate, does the insured's lack of cooperation preclude the injured third party from bringing a direct action against the insurer?”

Finding no “clear controlling precedent” from the Louisiana Supreme Court, and observing potential tension between older Direct Action/cooperation decisions and newer claims-made Direct Action decisions, the court certifies the question and retains the appeal pending the Louisiana Supreme Court’s response.

III. Analysis

A. Precedents Cited

1. Federal summary-judgment and cross-motion framework

Colony Ins. Co. v. First Mercury Ins. Co., 88 F.4th 1100 (5th Cir. 2023): cited for de novo review of summary judgment.
Discover Prop. & Cas. Ins. Co. v. Blue Bell Creameries USA, 73 F.4th 322 (5th Cir. 2023): cited for the rule that cross-motions are reviewed independently, with evidence viewed in the nonmovant’s favor.

2. Choice-of-law, Erie methodology, and the binding effect of prior Fifth Circuit “Erie guesses”

Am. Int'l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254 (5th Cir. 2003): Louisiana substantive law governs interpretation of Louisiana-issued policies.
IberiaBank Corp. v. Ill. Union Ins. Co., 953 F.3d 339 (5th Cir. 2020) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191 (5th Cir. 2007)): explains the Erie-guess process when the Louisiana Supreme Court has not spoken.
Moore v. State Farm Fire & Cas. Co., 556 F.3d 264 (5th Cir. 2009): emphasizes Louisiana’s civilian methodology—primary reliance on constitutions, codes, and statutes.
Kelly v. State Farm Fire & Cas. Co., 582 F. App'x 290 (5th Cir. 2014) (unpublished) (quoting Bustos v. Martini Club, Inc., 599 F.3d 458 (5th Cir. 2010)): a Fifth Circuit Erie guess binds later panels unless later state law makes it “clearly wrong.”
Anco Insulations, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 787 F.3d 276 (5th Cir. 2015): reiterates that prior Fifth Circuit state-law interpretations remain binding absent superseding Louisiana authority.

3. Louisiana Direct Action doctrine: third-party rights “within the terms and limits of the policy”

Hood v. Cotter, 5 So.3d 819 (La. 2008): Direct Action Statute grants a procedural right against the insurer where there is a substantive claim against the insured.
Syndicate 420 at Lloyd's London v. Early Am. Ins. Co., 796 F.2d 821 (5th Cir. 1986): cited for the public-policy notion that certain insured policy violations cannot be asserted against an injured third party.

4. Cooperation clauses and the classic Louisiana rule protecting third parties

Futch v. Fid. & Cas. Co. of N.Y., 166 So.2d 274 (La. 1964): long-standing Louisiana Supreme Court authority that an insurer generally cannot use an insured’s failure to cooperate to defeat a Direct Action claim absent fraud or conspiracy.
King v. King, 217 So.2d 395 (La. 1968): reinforces the same principle.
National Union Fire Insurance Company of Pittsburgh v. Cagle, 68 F.3d 905 (5th Cir. 1995): Fifth Circuit, relying on Futch and King, held that an insured’s breach of the cooperation clause does not affect third-party rights “absent fraud or collusion.”
Freyou v. Marquette Cas. Co., 149 So. 2d 697 (La. App. 3 Cir.), writ refused, 150 So.2d 771 (La. 1963), and Trosclair v. CNA Ins. Co., 637 So.2d 1168 (La. App. 4 Cir.), writ denied, 642 So.2d 874 (La. 1994): cited for general descriptions of cooperation clauses (disclosure and assistance).
Bankers Ins. Co. v. EMIII Holdings, LLC, 407 So.3d 681 (La. App. 4 Cir. 2024): cited for the proposition that breach of cooperation can be a defense in suits by the insured (highlighting a potential asymmetry between insured claims and third-party direct actions).

5. Claims-made-and-reported policies and newer Louisiana Direct Action limits

Gorman v. City of Opelousas, 148 So.3d 888 (La. 2014): held that an injured party has no “vested right” that survives an insured’s failure to report within a claims-made-and-reported policy period; emphasizes that the Direct Action Statute does not grant greater rights than the insured possesses under the policy.
Resolution Tr. Corp. v. Ayo, 31 F.3d 285 (5th Cir. 1994): quoted in Gorman for claims-made policy principles (the reporting requirement defines the scope of coverage).
Nat'l Union Fire Ins. Co. of Pittsburgh v. Willis, 296 F.3d 336 (5th Cir. 2002): cited for the idea that expanding coverage beyond the reporting window grants coverage not bargained for and risks not assumed.
Anderson v. Ichinose, 760 So.2d 302 (La. 1999), and Hood v. Cotter, 5 So.3d 819 (La. 2008): invoked by Princeton (and discussed by the panel) as claims-made reporting cases; the panel distinguishes them as not addressing cooperation clauses.

6. The key “mixed” intermediate appellate decision Princeton relies on

United Home Care v. Simpson, 351 So.3d 904 (La. App. 2 Cir. 2022), writ denied, 358 So.3d 518 (La. 2023): Princeton’s primary post-Cagle case. The Fifth Circuit reads it as turning on failures of both reporting and cooperation, with reporting framed as the “trigger” for coverage, and therefore not a clean holding that cooperation breach alone defeats a third-party direct action when reporting was timely.
Courville v. Lamorak Ins. Co., 301 So.3d 557 (La. App. 4 Cir.), writs denied, 302 So.3d 1100, 1115, 1121 (La. 2020): cited in Simpson as part of “modern cases” applying Gorman; the Fifth Circuit notes those citations do not actually analyze cooperation clauses.

7. Certification standards and comity considerations

Breaux v. Worrell, 141 F.4th 712 (5th Cir.), certified question accepted, 420 So.3d 679 (La. 2025), and certified question answered, --- So.3d ----, 2026 WL 972211 (La. 2026): supplies the certification factors (closeness, comity, practicalities).
Frymire Home Servs., Inc. v. Ohio Sec. Ins. Co., 12 F.4th 467 (5th Cir.): cited for the comity principle that state high courts should answer important state insurance questions.
La. v. Anpac La. Ins. Co. (In re Katrina Canal Breaches Litig.), 613 F.3d 504 (5th Cir.), certified question accepted, 51 So.3d 1 (La. 2010), and certified question answered, 63 So.3d 955 (La. 2011): example of sua sponte certification in an insurance context.
Grubbs v. Gulf Int'l Marine, Inc., 985 F.2d 762 (5th Cir.), certified question accepted, 616 So.2d 691 (La. 1993), and certified question answered, 625 So.2d 495 (La. 1993): example of certification involving the Direct Action Statute.
Self v. BPX Operating Co., 80 F.4th 632 (5th Cir.), certified question accepted, 373 So.3d 712 (La. 2023), and certified question answered, 388 So.3d 366 (La. 2024): cited to show lack of “practical impediments” to certification.

B. Legal Reasoning

The panel’s reasoning is driven by uncertainty at the intersection of (1) Louisiana’s traditional protection of third-party claimants from losing Direct Action rights due to insured cooperation failures (Futch, King, and the Fifth Circuit’s Erie-guess in Cagle), and (2) the Louisiana Supreme Court’s later insistence that Direct Action plaintiffs cannot recover beyond the policy’s bargained-for coverage—especially in claims-made-and-reported policies where timely reporting defines the scope of coverage (Gorman v. City of Opelousas).

Critically, the Fifth Circuit characterizes reporting requirements in a claims-made-and-reported policy as coverage-defining (the “trigger” and the temporal boundary of the risk), while cooperation obligations are described as post-trigger conditions governing investigation/defense after coverage has attached. That distinction matters because:

If a requirement is “scope of coverage” (like timely reporting in Gorman), then the Direct Action plaintiff cannot claim coverage that never attached.
If a requirement is a post-attachment condition (like cooperation), Louisiana’s older Direct Action cases suggest the insurer may be prevented, as a public-policy matter, from using the insured’s breach to defeat an innocent third party’s recovery absent fraud/collusion.

Princeton argues that Gorman’s “no greater rights than the insured” language implies that if the insured would lose coverage for noncooperation, the third party must lose as well. The panel, however, finds that Gorman did not address cooperation clauses and is therefore not a “clear controlling” answer. Likewise, the panel reads United Home Care v. Simpson as a combined reporting + cooperation case where reporting failure was central to the finding of no coverage, leaving unresolved whether cooperation breach alone defeats the direct action when reporting was timely.

Because the Fifth Circuit is bound by National Union Fire Insurance Company of Pittsburgh v. Cagle unless Louisiana law makes it “clearly wrong,” and because the subsequent Louisiana decisions do not squarely decide the cooperation-only scenario, the panel concludes it cannot responsibly choose between competing doctrinal trajectories. Under La. Sup. Ct. R. XII and the Breaux v. Worrell factors, certification is appropriate.

C. Impact

Although the decision is a certification order (and “not designated for publication”), it signals a high-stakes doctrinal question likely to shape Louisiana insurance litigation:

For Direct Action plaintiffs: If the Louisiana Supreme Court holds that cooperation breaches can bar third-party direct actions even after timely reporting, plaintiffs may face new vulnerability to insured/administrator noncooperation—conduct they do not control.
For insurers: A pro-insurer answer would strengthen coverage defenses and leverage in post-judgment collection, encouraging strict enforcement of cooperation conditions. A pro-plaintiff answer would preserve the traditional Louisiana public-policy protection and keep cooperation disputes largely between insurer and insured (or risk pool).
For governmental risk pools and claims administrators: The case highlights operational exposure where administrators provide minimal reporting (e.g., spreadsheets) and fail to keep insurers informed during litigation/settlement. Depending on the answer, administrative noncooperation may (or may not) jeopardize third-party recovery.
For policy drafting and underwriting: Insurers may respond with clearer “conditions precedent” language tying cooperation to the existence of coverage, or with explicit provisions addressing third-party rights—though such drafting will still be constrained by Louisiana public policy and Direct Action jurisprudence.

IV. Complex Concepts Simplified

Louisiana Direct Action Statute (La. R.S. § 22:1269): Allows an injured person, in specified circumstances, to sue the tortfeasor’s insurer directly. The action is still “within the terms and limits of the policy.”
Claims-made-and-reported policy: Coverage typically exists only if the claim is (1) made and (2) reported to the insurer within the policy period (or specified reporting window). Louisiana decisions treat timely reporting as part of what coverage was purchased.
Cooperation clause: Requires the insured to assist the insurer in investigating, settling, or defending a claim (e.g., sharing information, appearing for testimony, not impairing defense/settlement).
Erie guess: In diversity cases, federal courts must apply state substantive law. When the state supreme court has not answered a question, the federal court predicts what it would do. When the prediction is too uncertain, certification may be preferable.
Certification: A federal court asks the state supreme court to answer a dispositive state-law question. The state court’s answer controls the federal case on that issue.

V. Conclusion

The Fifth Circuit’s opinion in Hargiss v. Princeton Excess & Surplus Lines Insurance Company frames an unsettled and consequential Louisiana question: in a claims-made-and-reported setting where reporting is timely (coverage attaches), does the insured’s later breach of a cooperation clause extinguish an injured third party’s Direct Action right—or does Louisiana’s traditional rule (absent fraud/collusion) continue to protect the third party?

By certifying the question, the Fifth Circuit underscores that existing authorities point in different directions: Futch/King/Cagle suggest cooperation breaches should not defeat third-party recovery, while Gorman emphasizes that Direct Action claimants cannot obtain rights beyond the policy’s bargained-for coverage. The Louisiana Supreme Court’s answer will likely determine whether cooperation clauses function merely as insurer-insured enforcement tools or as coverage-defeating defenses against innocent third parties once a claim has been timely reported.