UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:20-cv-22887-GAYLES

JORGE MATTOS and 

PATRICIA TOJA,

Plaintiffs,

v.

NATIONAL WESTERN LIFE 

INSURANCE COMPANY and 

UNIVERSAL INSURANCE 

BROKER, CORP.,

Defendants. 

______________________________/

ORDER

THIS CAUSE comes before the Court on Defendant National Western Life Insurance 

Company’s (“NWL”) Motion to Compel Arbitration and Stay the Proceedings (“NWL’s Motion”), 

[ECF No. 6], and Defendant Universal Insurance Broker, Corp.’s (“UIB”) Motion to Stay this 

Action Pending Arbitration (“UIB’s Motion”), [ECF No. 7], (collectively, the “Motions”). The 

Court has reviewed the Motions and the record and is otherwise fully advised. For the reasons 

discussed below, the Motions are granted. 

I. BACKGROUND

In this action, Plaintiffs Jorge Mattos and Patricia Toja seek, among other things, to enforce 

a life insurance policy (the “Policy”) against Defendants. NWL issued the Policy in 2004 to the 

now-deceased Colombian citizen Helena Mondragon (a.k.a Helena Mondragon de Toja) (Plaintiff 

Toja’s mother and Plaintiff Mattos’ mother-in-law). The Policy names both Plaintiffs as primary

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beneficiaries. The issue presently before the Court is whether Plaintiffs may be compelled to 

arbitrate this dispute.

On May 4, 2020, Plaintiffs brought the following claims against Defendants in the Eleventh 

Judicial Circuit in and for Miami-Dade County, Florida: (1) breach of contract against NWL 

(Count I); (2) negligence against NWL (Count II) and UIB (Count III); (3) breach of fiduciary 

duty against UIB (Count IV); (4) negligent supervision against Defendants (Count V); and (5) 

conversion against NWL (Count VI). [ECF No. 1-1 at 6–15]. Plaintiffs attached to the Complaint 

a copy of the Policy and the application for the Policy (the “Application”), along with a translation 

of each form from Spanish to English and an affidavit of translation. [ECF No. 1-1 at Exhibit 1]. 

Except for some words that do not affect the Court’s analysis in this Order, Defendants do 

not dispute the translation that Plaintiffs provide to the Court. The following provisions are recited 

exactly as they appear in the translated documents. In relevant part, the Application provides: 

Each one of the hereinafter of the Signing Parties has read, understand and agrees 

with international business arbitration provision printed in this application. Also 

understands that the arbitration provision is applicable to any and every conflict

arising out of this application, conditional insurance agreement and any insurance 

contract that may result. 

[ECF No. 1-1 at 54]. Under a section titled “International Business Arbitration,” which sits directly 

below the provision just outlined, the Application further states:

1. In case of any and all conflicts, differences, disputes and claims regarding 

to or the outcome in connection with this contract, including any matter in 

reference to its creation, existence, validity, compliance, performance, 

alteration or termination will be finally determined by arbitration under the 

Public Resources Institute Center for Dispute Resolution Rules for 

Unmanaged Arbitration of International Disputes by an arbitration court 

composed of three arbitrators, each of whom will be a member or Associate 

of the UK Institute of Referees’ Statutes.

[Provisions 2–5 omitted]

6. The parties hereby waive and exclude any right of judicial process or appeal.

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7. This contract is specifically stipulated and by mutual consent to be an 

international trade agreement to be construed pursuant to the contract laws 

of the State of Colorado, USA, excluding its principles of choice of law and 

provides that any dispute in connection with the arbitration agreement will 

be governed by the international provisions of the U.S. Arbitration Decree, 

9 U.S.C. Sec. 201 et Seq. Arbitrators may grant any appropriate redemption 

under applicable law, including without limitation declaratory redemption 

and/or specific enforcement.

8. The parties subject to arbitration have addressed and identify the insurer, 

insured, Holder, Beneficiary and all persons for whom they are claiming, 

though, or on behalf of, the insurer, Insured, Holder, Beneficiary, or 

treatment, Constitutions, statutes, codes, ordinance, proclamations, rules, 

regulations and/or decrees of the respective countries of the parties. In 

addition, the parties specifically come to an agreement and require that all 

jurisdiction, arbitration, unconsciousness, relative or absolute annulment, 

termination, reformation matters or any connection existing in the law or in 

equity on the renewal of any contract shall be determined exclusively by the 

arbitration court.

Id. 

In addition, the Policy states the following on page 1 in capital letters and in bold underline:

THIS POLICY IS SUBJECT TO BINDING ARBITRATION.

Id. at 66. Like the Application, the Policy contains a provision titled “International Business 

Arbitration,” which outlines the following language similar to that in the Application: 

1. In case of disputes, differences, controversies, and claims related to or 

resulting in connection with this contract, including any matter in reference 

to its formation, existence, validity, compliance, performance, alteration, or 

termination, they shall all be resolved by arbitration under the Public 

Resources Institute Center for Dispute Resolution Rules for Unmanaged 

Arbitration of International Disputes through an arbitration court formed of 

three arbitrators, each of whom shall be a qualified arbitrator.

[Provisions 2–5 omitted]

6. The parties hereby waive and exclude any right of judiciary process or 

appeal. 

7. This contract is specifically drafted and by common agreement to be an 

international business agreement to be interpreted in accordance with all 

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contract law of the State of Colorado, United States of America, but 

excluding its principles of choice of law, and provides that any dispute 

relating to the agreement of arbitration shall be governed by the 

international provisions of the United States Arbitration decree, 9 U.S.C. 

Sec. 201 et seq. Arbitrators may grant any appropriate redemption under 

relevant laws, including, without limitation, declarative redemption and/or 

specific execution. 

8. The parties subject to arbitration have agreed and defined that they are the 

insurer, the Insured Party, the Policyholder, the Beneficiary, and all further

individuals for which the claim is being performed, through, or on behalf 

of, the Insured Party, the Policyholder, the Beneficiary, or any other 

beneficiary being referenced. This agreement shall rule all claims that are 

submitter under or in relation to this contract, its Constitutions, statutes, 

codes, proclamations, ordinances, rules, regulations, and/or decrees of the 

corresponding countries of the parties. Additionally, the parties specifically 

reach an agreement and require that all matters regarding jurisdiction, 

arbitration, obliviousness, relative or absolute annulment, termination, 

reformation, or any link existing in the law or in equity over the revocation 

of any contract shall be exclusively assessed by the arbitration court. 

9. In the event that this arbitration provision is canceled or invalidated or that, 

for any reason, becomes ineffective, the courts of Austin, Texas, United 

States shall have exclusive jurisdiction over the dispute. This policy must 

be interpreted in accordance to the contract laws of the State of Colorado, 

United States, excluding its principles of choice of law. 

Id. at 79–80. 

On July 13, 2020, Defendants removed this action asserting that this Court has federal 

question jurisdiction because the above arbitration provisions in the Application and the Policy 

(collectively, the “Arbitration Provisions”) fall under the Inter-American Convention on 

International Commercial Arbitration (the “Convention”), 9 U.S.C. § 205 (allowing actions to be 

removed when the subject matter “relates to an arbitration agreement or award falling under the 

Convention . . . .”). [ECF No. 1 at 5]. On July 20, 2020, NWL moved to compel arbitration and to 

stay the proceedings pending arbitration. [ECF No. 6]. The next day, UIB also moved to stay the 

proceedings pending arbitration but did not move to compel arbitration. [ECF No. 7]. 

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NWL argues that all of Plaintiffs’ claims are subject to arbitration under the valid and 

enforceable Arbitration Provisions. And, to the extent that the scope or validity of the Arbitration 

Provisions are in question, Defendants assert that such questions are committed solely to the 

jurisdiction of the arbitrator to be decided in the first instance. Plaintiffs argue that the Court cannot 

compel them to arbitrate this matter for several reasons outlined below. The Court does not reach 

those issues for the reasons discussed below and ultimately agrees with NWL that it must compel 

arbitration in this case. 

II. LEGAL STANDARDS

“The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16 (2006), provides the substantive 

law controlling the validity and enforcement of covered arbitration agreements.” Schoendorf v. 

Toyota of Orlando, No. 6:08-cv-767-Orl-19DAB, 2009 WL 1075991, at *3 (M.D. Fla. Apr. 21, 

2009). “The FAA embodies a liberal federal policy favoring arbitration agreements.” Caley v. 

Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir. 2005) (citation and internal quotation 

marks omitted). The Supreme Court requires federal courts to “rigorously enforce agreements to 

arbitrate.” Shearson/Am. Express v. McMahon, 482 U.S. 220, 226 (1987) (citation omitted). 

“[Q]uestions of arbitrability must be addressed with a healthy regard for the federal policy 

favoring arbitration.” Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d 1309, 1315 (11th Cir. 2002)

(quoting Moses H. Cone Mem’l Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24 (1983)).

“The [FAA] establishes that, as a matter of federal law, any doubts concerning the scope of 

arbitrable issues should be resolved in favor of arbitration.” Brandon, Jones, Sandall, Zeide, Kohn, 

Chalal & Musso, P.A. v. Medpartners, Inc., 312 F.3d 1349, 1358 (11th Cir. 2002) (citation 

omitted) (emphasis in original), abrogated on other grounds by Ray Haluch Gravel Co. v. Cent. 

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Pension Fund of Int’l Union of Operating Engineers & Participating Employers, 571 U.S. 177

(2014). 

When reviewing a motion to compel arbitration, courts must consider whether “(1) a 

written agreement exists between the parties containing an arbitration clause; (2) an arbitrable issue 

exists; and (3) the right to arbitration has not been waived.” Curbelo v. Autonation Ben. Co., Inc., 

14-CIV-62736, 2015 WL 667655, at *2 (S.D. Fla. Feb. 17, 2015) (citations omitted).

“Accordingly, the FAA requires a court to either stay or dismiss a lawsuit and to compel arbitration 

upon a showing that (a) the plaintiff entered into a written arbitration agreement that is enforceable 

‘under ordinary state-law contract principles’ and (b) the claims before the court fall within the 

scope of that agreement.” Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir. 2008) (citing 9 

U.S.C. §§ 2–4). 

In determining the validity of an agreement to arbitrate, the Supreme Court has noted that

courts should generally decide “certain gateway matters, such as whether the parties have a valid 

arbitration agreement at all or whether a concededly binding arbitration clause applies to a certain 

type of controversy.” Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003). However, parties 

“can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have 

agreed to arbitrate or whether their agreement covers a particular controversy” by including in 

their agreement what the Supreme Court has labeled a “delegation provision.” Rent-A-Ctr., W., 

Inc. v. Jackson, 561 U.S. 63, 68–69 (2010) (citations omitted). A delegation provision “is simply 

an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, 

and the FAA operates on this additional arbitration agreement just as it does on any other.” Id. at 

70. Among other things, delegation provisions may delegate to an arbitrator gateway questions

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regarding “the enforceability, scope, applicability, and interpretation of the arbitration agreement.” 

Jones v. Waffle House, Inc., 866 F.3d 1257, 1264 (11th Cir. 2017).

“Under the FAA, a delegation provision is valid, ‘save upon such grounds as exist at law 

or in equity for the revocation of any contract.’” In re Checking Account Overdraft Litig. MDL No.

2036, 674 F.3d 1252, 1255 (11th Cir. 2012) (citing 9 U.S.C. § 2). “Courts should enforce valid 

delegation provisions as long as there is ‘clear and unmistakable’ evidence that the parties 

manifested their intent to arbitrate a gateway question.” Id. (citing Rent–A–Ctr., 561 U.S. at 69 

n.1). “In order to determine whether the parties have manifested a clear and unmistakable intent to 

arbitrate gateway issues,” courts must “look to the wording of the delegation provision itself.” 

Jones, 866 F.3d at 1267 (finding that the parties demonstrated a clear and unmistakable intent to 

arbitrate “any dispute relating to the interpretation, applicability, enforceability or formation of 

th[e] Agreement, including but not limited to any claim that all or any part of th[e] Agreement is 

void or voidable”). 

Importantly, courts “may examine a challenge to a delegation provision only if the claimant 

challenged the delegation provision directly. That is, [the party opposing arbitration] must have 

alleged that the delegation provision specifically—and not just the agreement as a whole—can be 

defeated by fraud, duress, unconscionability, or another generally applicable contract defense.” Id.

at 1264 (citations and internal quotation marks omitted) (emphasis added). “In sum, absent a 

challenge to the delegation provision itself, the federal courts must treat the delegation provision 

‘as valid under [9 U.S.C.] § 2, and must enforce it under §§ 3 and 4, leaving any challenge to the 

validity of the [a]greement as a whole for the arbitrator.’” Parnell v. CashCall, Inc., 804 F.3d 1142, 

1146–47 (11th Cir. 2015) (citing Rent-A-Ctr., 561 U.S. at 72). 

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III. DISCUSSION

Here, Plaintiffs argue that the Court should not compel the parties to arbitrate because: 

(1) the Policy violated Florida and Colombian law, and, therefore, NWL’s “unclean hands” should 

prevent arbitration based upon equitable estoppel; (2) the Policy’s arbitration provision is 

procedurally and substantively unconscionable; (3) Florida law and public policy are “against”

arbitration for life insurance contracts; (4) the Arbitration Provisions contain various ambiguities, 

which should be interpreted against the insurer; (5) the Arbitration Provisions do not bind Plaintiffs 

because they were not signatories to the Application or the Policy; (6) Florida’s choice of law 

applies to this case; (7) the Application’s forum selection clause is unreasonable and unjust; and 

(8) Plaintiffs’ tort claims do not fall within the Arbitration Provisions. See generally [ECF No. 8].1

However, the Court cannot resolve these issues because the Application and the Policy specifically 

delegate these questions to the arbitrator under their respective delegation provisions. 

The Application’s delegation provision provides that “all jurisdiction, arbitration, 

unconsciousness, relative or absolute annulment, termination, reformation matters or any 

connection existing in the law or in equity on the renewal of any contract shall be determined 

exclusively by the arbitration court.” [ECF No. 1-1 at 54] (emphasis added). Additionally, the 

Policy’s delegation provision states that “all matters regarding jurisdiction, arbitration, 

 1 The Court finds unpersuasive Plaintiffs’ one-paragraph argument that one of the four Bautista jurisdictional 

prerequisites are not met in this case. See Bautista v. Star Cruises, 396 F.3d 1289, 1294 n.7 (11th Cir. 2005) (noting 

that a district court must order arbitration unless one of the Convention’s affirmative defenses apply or one of the 

following four jurisdictional prerequisites are not met: “(1) there is an agreement in writing within the meaning of the 

Convention; (2) the agreement provides for arbitration in the territory of a signatory of the Convention; (3) the 

agreement arises out of a legal relationship, whether contractual or not, which is considered commercial; and (4) a 

party to the agreement is not an American citizen, or that the commercial relationship has some reasonable relation 

with one or more foreign states”) (citing Std. Bent Glass Corp. v. Glassrobots Oy, 333 F.3d 440, 449 (3d Cir. 2003)). 

Plaintiffs claim that the fourth factor is not met in this action because the Policy violated Colombian law. Even 

assuming this is true, which the Court does not decide, Plaintiffs provide no authority for the assertion that this means 

the Policy has no reasonable relation with a foreign state. Regardless, the first clause of the fourth factor is satisfied: 

Plaintiffs do not dispute that Mondragon, a party to the Application and the Policy was, at all relevant times, a 

Colombian citizen. Accordingly, the Court finds that the Bautista jurisdictional factors are met in this case. 

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obliviousness, relative or absolute annulment, termination, reformation, or any link existing in the 

law or in equity over the revocation of any contract shall be exclusively assessed by the arbitration 

court.” [ECF No. 1-1 at 80] (emphasis added). 

The Eleventh Circuit has held that language similar to that in the instant delegation 

provisions evinces a clear and unmistakable intent by the parties to the Application and the Policy 

to arbitrate the gateway issues that Plaintiffs raise in their opposition to NWL’s Motion. See, e.g., 

Martinez v. Carnival Corp., 744 F.3d 1240, 1245 (11th Cir. 2014) (affirming district court’s order 

compelling arbitration where the agreement stated that “any and all disputes arising out of or in 

connection with th[e] Agreement, including any question regarding its existence, validity, or 

termination, or Seafarer’s service on the vessel, shall be referred to and finally resolved by 

arbitration . . . .”); In re Checking Account Overdraft Litig. MDL No. 2036, 674 F.3d at 1255

(finding that the parties demonstrated their clear and unmistakable intent to arbitrate “any issue 

regarding whether a particular dispute or controversy is . . . subject to arbitration . . . .”). 

Moreover, nowhere in their opposition to either NWL’s Motion or UIB’s Motion did 

Plaintiffs even mention the delegation provisions in the Application and the Policy let alone 

directly attack them. Defendants point out this deficiency in their reply to Plaintiffs’ opposition to 

the Motions, and, notably, Plaintiffs did not seek leave to file a sur-reply to address the issue.

Accordingly, the Court must treat the delegation provisions in the Application and the Policy as 

valid under the FAA, 9 U.S.C. § 2, “and must enforce it under §§ 3 and 4, leaving any challenge 

to the validity of the agreement[s] as a whole for the arbitrator.” Rent-A-Ctr., 561 U.S. at 72; see, 

e.g., Parnell, 804 F.3d at 1148–49 (treating a delegation provision that committed “any issue 

concerning the validity, enforceability, or scope of th[e] loan or the Arbitration agreement” to 

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arbitration as valid because the appellee did not directly challenge that provision). Therefore, the 

Court must grant NWL’s Motion and compel the parties to arbitrate this matter.

IV. CONCLUSION 

Based on the foregoing, it is ORDERED AND ADJUDGED that:

1. Defendant National Western Life Insurance Company’s Motion to Compel 

Arbitration and Stay the Proceedings, [ECF No. 6], is GRANTED;

2. Defendant Universal Insurance Broker, Corp.’s Motion to Stay this Action Pending 

Arbitration, [ECF No. 7], is GRANTED;

3. The parties shall arbitrate this matter in accordance with the Application and the 

Policy; and 

4. The case shall be STAYED pending arbitration and CLOSED for administrative 

purposes. The parties shall file a joint status report with the Court within fourteen 

(14) days of the conclusion of the arbitration proceedings. 

DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of August, 2020. 

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

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