PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-1511

MINNIELAND PRIVATE DAY SCHOOL, INC., a Virginia corporation,

Plaintiff - Appellee,

v.

APPLIED UNDERWRITERS CAPTIVE RISK ASSURANCE COMPANY, INC.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at 

Alexandria. Anthony J. Trenga, District Judge. (1:15−cv−01695–AJT-IDD)

Argued: May 10, 2017 Decided: August 11, 2017

Before GREGORY, Chief Judge, and SHEDD and WYNN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Wynn 

wrote the opinion, in which Chief Judge Gregory and Judge Shedd joined.

ARGUED: Daniel William Olivas, LEWIS, THOMASON, KING, KRIEG & 

WALDROP, Nashville, Tennessee, for Appellant. James Scott Krein, KREIN LAW 

FIRM, Prince William, Virginia, for Appellee. ON BRIEF: R. Dale Bay, Emily H. 

Mack, LEWIS, THOMASON, KING, KRIEG & WALDROP, Nashville, Tennessee, for 

Appellant.
2

WYNN, Circuit Judge:

Defendant Applied Underwriters Captive Risk Assurance Company, Inc.

(“Applied Underwriters”), a subsidiary of Berkshire Hathaway, Inc., appeals an order of 

the U.S. District Court for the Eastern District of Virginia (1) denying Applied 

Underwriters’ motion to compel arbitration and (2) holding that Applied Underwriters 

was judicially estopped from arguing that an agreement between Applied Underwriters 

and Plaintiff Minnieland Private Day School, Inc. (“Minnieland”) did not constitute an 

insurance contract for purposes of Virginia law. For the reasons that follow, we conclude 

that the district court correctly denied Applied Underwriters’ motion to compel 

arbitration. But the district court reversibly erred in applying the doctrine of judicial 

estoppel to hold that the agreement constituted an insurance contract. Accordingly, we 

affirm in part, reverse in part, and remand the case to the district court for further 

proceedings consistent with this opinion.

I.

A.

Minnieland, a provider of child daycare, is required under Virginia law to provide 

workers’ compensation insurance to its employees. In 2013, Minnieland entered into a 

“Reinsurance Participation Agreement” (“RPA”) with Applied Underwriters, as part of 

Minnieland’s purchase of Applied Underwriters’ “Equity Comp” program, which 

Applied Underwriters held out to be a “Worker’s Compensation Program.” J.A. 9. 

Under the RPA, which had a three-year term, one or more “Issuing Insurers”—all of 

which were affiliates of Applied Underwriters and subsidiaries of Berkshire Hathaway—
3

would issue workers’ compensation insurance policies to Minnieland. Also pursuant to 

the RPA, Applied Underwriters would establish a “segregated protected cell” through 

which Minnieland would share in the Issuing Insurers’ profits and losses attributable to 

Minnieland’s policies. Following execution of the RPA, Applied Underwriters’ affiliate, 

and Berkshire Hathaway subsidiary, Continental Indemnity Company (“Continental”) 

issued a workers’ compensation policy to Minnieland. The RPA appointed another 

Berkshire Hathaway subsidiary as the billing agent for Applied Underwriters and the 

Issuing Insurers. Throughout the term of the agreement, Minnieland paid premiums on 

the policy to Applied Underwriters. 

The RPA included an arbitration provision mandating resolution of “any disputes 

arising under this Agreement” through binding arbitration in the British Virgin Islands 

and under the provisions of the American Arbitration Association. J.A. 29–30. In 

particular, the arbitration agreement provided that “[a]ll disputes between the parties 

relating in any way to (1) the execution and delivery, construction or enforceability of 

this Agreement, (2) the management or operations of the Company, or (3) any other 

breach or claimed breach of this Agreement” were subject to mandatory binding 

arbitration. J.A. 30.

For the first 33 months of the 36-month term, Minnieland’s monthly premiums 

averaged $58,810. But on November 9, 2015, Applied Underwriters billed Minnieland

$471,213, a 1,167% increase from the October 2015 premium and an 801% increase from 

the average premium Minnieland had paid over the first 33 months of the policy. Though 

Applied Underwriters refused to disclose the basis for the premium increase, Minnieland 
4

nevertheless paid the November premium. After Minnieland failed to pay a second 

similarly large billed premium in December 2015, Applied Underwriters terminated the 

EquityComp program—and the Continental workers’ compensation policy, in 

particular—and informed Minnieland that it had a significant outstanding balance on the 

policy. 

B.

On December 24, 2015, Minnieland filed suit against Applied Underwriters in 

federal district court, alleging that Applied Underwriters engaged in the business of 

insurance in Virginia without complying with Virginia insurance and workers’ 

compensation laws. In particular, Minnieland alleged that the RPA amounted to an 

“insurance contract,” not a “reinsurance” agreement, and therefore constituted an 

unlawful “attempt to circumvent” various Virginia laws related to insurance and workers’ 

compensation. J.A. 12–13. The complaint also alleged that the arbitration provisions in 

the RPA violated Virginia insurance law. Minnieland sought a declaration (1) that the 

RPA constituted an insurance contract and was void due to Applied Underwriters’ failure 

to comply with Virginia law; (2) as to what amount, if any, Minnieland owed Applied 

Underwriters under the RPA; and (3) that the premiums, deposits, and charges assessed 

by Applied Underwriters were excessive. Minnieland also sought damages for fraud and 

breach of contract. 

On January 21, 2016, Applied Underwriters moved to compel arbitration. In 

response, Minnieland argued that under Virginia law “no provision of any insurance 

contract can . . . deprive ‘the courts of this Commonwealth of jurisdiction in actions 
5

against the insurer,’” rendering any arbitration provision in the RPA “‘void.’” J.A. 85, 88 

(quoting Va. Code Ann. § 38.2–312). Applied Underwriters replied that, because the 

RPA delegated questions of arbitrability to the arbitrator, the arbitrator had exclusive 

authority to decide whether the RPA constituted an “insurance contract” subject to 

Section 38.2–312’s prohibition on mandatory arbitration of disputes involving such

contracts. The district court initially granted Applied Underwriters’ motion, holding that 

“the arbitration provision in the [RPA] requires that an arbitrator decide whether the 

parties’ contract is subject to Va. Code § 38.2–312.” Minnieland Private Day School, 

Inc. v. Applied Underwriters Captive Risk Assurance Co., No. 1:15–cv–1695, 2016 WL 

7199729, at *1 (E.D. Va. Mar. 17, 2016). The district court’s initial order included the 

following note:

In order to avoid unnecessary and unwarranted delay and expense, the 

Court urges Applied to consider whether, given the underlying merits of the 

issue to be arbitrated, the rulings already obtained in arbitration concerning 

whether the RPA is a “contract of reinsurance” (as advocated for by 

Applied), and the positions Applied has taken in other proceedings 

concerning whether the RPA is a “contract of reinsurance,” Applied can 

continue to advocate in good faith before an arbitrator and without running 

afoul of 28 U.S.C. § 1927 that the RPA is a “contract of reinsurance” and 

therefore not a “contract of insurance” subject to Va. Code § 38.2–312.

Id. at *3 n.6

Minnieland moved for reconsideration, again arguing that Section 38.2–312 

rendered void “any” arbitration provision in the RPA and, therefore, that “[t]he court 

must resolve the validity of the arbitration provision.” J.A. 208-09. Minnieland also 

attached to its motion additional materials from other regulatory and legal proceedings in 

which Applied Underwriters or its affiliates had either refused to dispute or conceded that 
6

the RPA constituted an insurance contract for purposes of various other state laws. The 

district court orally granted Minnieland’s motion, concluding that Applied Underwriters 

was judicially estopped from arguing that the RPA did not constitute a “contract of 

insurance.” J.A. 465. As a result, the court observed that there was no “arbitrable issue 

to be submitted to the arbitrator under the RPA.” J.A. 465. The district court further 

concluded that “Applied’s assertion in this action that the RPA is not a contract of 

insurance but rather a contract of reinsurance must be viewed as an attempt to gain an 

unfair advantage in this proceeding by delaying what ultimately must be addressed by the 

Court and diverting this case procedurally to an arbitrable forum that is to play no role 

under the applicable Virginia law in deciding the merits of plaintiff’s claims.” J.A. 466.

Applied Underwriters timely appealed, arguing that the district court (1) reversibly 

erred in denying Applied Underwriters’ motion to compel arbitration and (2) incorrectly 

held that the doctrine of judicial estoppel barred Applied Underwriters from asserting that 

the RPA does not constitute a “contract of insurance” for purposes of Virginia law. We 

hold that the district court correctly denied Applied Underwriters’ motion to compel 

arbitration, but incorrectly applied the doctrine of judicial estoppel in holding that the 

RPA constitutes an “insurance contract” for purposes of Section 38.2–312. 

II.

This Court reviews de novo a district court’s order denying a motion to compel 

arbitration under the Federal Arbitration Act. See Noohi v. Toll Bros., 708 F.3d 599, 605 

(4th Cir. 2013). That statute provides that “[a] written provision in . . . a contract 

evidencing a transaction involving commerce to settle by arbitration a controversy 
7

thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, 

save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 

U.S.C. § 2. The Federal Arbitration Act generally preempts state laws limiting the 

enforceability of arbitration agreements. See, e.g., Preston v. Ferrer, 552 U.S. 346, 352–

53 (2008).

However, the federal McCarran-Ferguson Act endows states with plenary 

authority over the regulation of insurance and provides that “[n]o Act of Congress shall 

be construed to invalidate, impair, or supersede any law enacted by any State for the 

purpose of regulating the business of insurance.” 15 U.S.C. § 1012. “Thus, McCarranFerguson authorizes ‘reverse preemption’ of generally applicable federal statutes by state 

laws enacted for the purpose of regulating the business of insurance.” ESAB Grp., Inc. v. 

Zurich Ins. PLC, 685 F.3d 376, 380 (4th Cir. 2012). In other words, state laws 

invalidating arbitration agreements in insurance policies “reverse preempt[]” the Federal 

Arbitration Act. E.g., Am. Bankers Ins. Co. of Fla. v. Inman, 436 F.3d 490, 494 (5th Cir. 

2006) (holding that Mississippi statute prohibiting required arbitration of disputes 

stemming from uninsured and underinsured motorist coverage provisions of personal 

automobile insurance policies reverse preempts Federal Arbitration Act); Am. Health & 

Life Ins. Co. v. Heyward, 272 F. Supp. 2d 578, 582 (D.S.C. 2003) (holding that South 

Carolina law prohibiting mandatory arbitration provisions in insurance contracts reverse 

preempts the Federal Arbitration Act).

Virginia law, which the parties agree governs the present dispute, provides that 

“[n]o insurance contract delivered or issued for delivery in this Commonwealth and 
8

covering subjects which are located or residing in this Commonwealth . . . shall contain 

any condition, stipulation or agreement . . . [d]epriving the courts of this Commonwealth 

of jurisdiction in actions against the insurer,” and that “[a]ny such condition, stipulation 

or agreement shall be void.” Va. Code Ann. § 38.2–312. The district court concluded—

and we agree—that Section 38.2–312 renders void mandatory arbitration provisions in 

“insurance contracts” governed by Virginia law. Minnieland, 2016 WL 7199729, 

at *1, *3.

On appeal, Applied Underwriters does not contend that Section 38.2–312 does not 

generally reverse preempt the Federal Arbitration Act. Rather, Applied Underwriters 

argues that the district court improperly determined that Section 38.2–312 reverse 

preempts the arbitration provisions in the RPA because the RPA included a so-called 

“delegation provision,” which expressly delegated the authority to resolve questions of 

arbitrability to the arbitrator. In particular, Applied Underwriters asserts that the district 

court improperly concluded that the RPA constituted an “insurance contract” for 

purposes of Section 38.2–312, when the RPA left that question of arbitrability to the 

arbitrator.

Applied Underwriters arbitrability argument principally rests on the Supreme 

Court’s opinion in Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010). There, the 

arbitration agreement between the defendant, Rent-A-Center, and the plaintiff, Jackson,

provided that “[t]he Arbitrator, and not any federal, state, or local court or agency, shall 

have exclusive authority to resolve any dispute relating to the interpretation, applicability, 

enforceability or formation of this Agreement.” 561 U.S. at 66 (alteration in original) 
9

(internal quotation marks omitted). Jackson sought to avoid the arbitration agreement on 

grounds of unconscionability, arguing that the mandatory arbitration provision was onesided and involved unfair procedures limiting discovery and requiring fee-splitting. Id. at 

73–74. Below, the Ninth Circuit concluded that the agreement unambiguously gave the 

arbitrator exclusive authority to resolve questions of arbitrability. Jackson v. Rent-ACenter West, Inc., 581 F.3d 912, 917 (9th Cir. 2009), rev’d, 561 U.S. 63 (2010).

Nonetheless, the Ninth Circuit held that when “a party challenges an arbitration 

agreement as unconscionable, and thus asserts that he could not meaningfully assent to 

the agreement, the threshold question of unconscionability is for the court.” Id.

The Supreme Court reversed, holding that the Ninth Circuit’s analysis improperly 

focused on the unconscionability of the arbitration agreement and not the delegation 

provision, which provided the arbitrator exclusive authority to resolve questions of 

arbitrability. See Rent-A-Center, 561 U.S. at 72–74. “An agreement to arbitrate a 

gateway issue 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,” the Court explained. Id. at 70. Because 

Jackson’s unconscionability arguments focused on “the entire arbitration agreement”—

and not the delegation provision, in particular—the unchallenged delegation provision

granted the arbitrator exclusive authority to determine whether the arbitration agreement 

was unconscionable. Id. at 72–74. 
10

Rent-A-Center makes clear, however, that “[i]f a party challenges the validity 

under § 2 of the precise agreement to arbitrate at issue, the federal court must consider 

the challenge before ordering compliance with that agreement under § 4.” Id. at 71. 

Accordingly, because delegation provisions constitute “an additional, antecedent 

agreement” to arbitrate, such provisions are “valid under § 2 ‘save upon such grounds as 

exist at law or in equity for the revocation of any contract.’” Id. at 69–70 (quoting 9 

U.S.C. § 2). Federal courts, therefore, “must consider” challenges to delegation 

provisions “before ordering compliance with [such provisions].” Id. at 71. To that end, 

Rent-A-Center provides an illustration of how Jackson could have argued that the 

delegation provision, as opposed to the arbitration agreement as a whole, was 

“unconscionable”—and therefore unenforceable—because of the limitations on arbitral 

discovery and the fee-splitting procedures:

To make such a claim based on the discovery procedures, Jackson would 

have had to argue that the limitation upon the number of depositions causes 

the arbitration of his claim that the [arbitration] Agreement is unenforceable 

to be unconscionable. That would be, of course, a much more difficult 

argument to sustain than the argument that the same limitation renders 

arbitration of his factbound employment-discrimination claim 

unconscionable. Likewise, the unfairness of the fee-splitting arrangement 

may be more difficult to establish for the arbitration of enforceability than 

for arbitration of more complex and fact-related aspects of the alleged 

employment discrimination.

Id. at 74. 

Accordingly, under Rent-A-Center, we first must decide whether Minnieland 

lodged a challenge against the delegation provision in the RPA, in particular. Second, if 

we conclude that Minnieland specifically challenged the enforceability of the delegation 
11

provision, we then must decide whether the delegation provision is unenforceable “upon 

such grounds as exist at law or in equity.” 9 U.S.C. § 2. 

Regarding the first question, Applied Underwriters argues that Minnieland, like 

the plaintiff in Rent-A-Center, failed to specifically challenge the delegation provision in 

the RPA. But before the district court, Minnieland argued that Section 38.2-312 rendered 

void “any” arbitration provision in the RPA, J.A. 208-09 (emphasis added), necessarily 

including the delegation provision, which is simply “an additional, antecedent 

agreement” to arbitrate, Rent-A-Center, 561 U.S. at 70; see also J.A. at 85, 88 (arguing 

that under Virginia law “no provision of any insurance contract can . . . deprive ‘the 

courts of this Commonwealth of jurisdiction in actions against the insurer,’” rendering 

any arbitration provision in the RPA “‘void’” (quoting Va. Code Ann. § 38.2–312) 

(emphasis added)). And to avoid any doubt that its challenge to the enforceability of the 

arbitration agreements in the RPA extended to the delegation provision, Minnieland 

expressly asserted that, under Section 38.2–312, “[t]he court must resolve the validity of 

the arbitration provision,” an argument relevant only to the enforceability of the 

delegation provision. J.A. 208-09 (emphasis added). Accordingly, Minnieland 

“challenged the validity of that delegation with sufficient force and specificity” to satisfy 

Rent-A-Center. Hayes v. Delbert Servs. Corp., 811 F.3d 666, 671 n.1 (4th Cir. 2016).

Applied Underwriters nevertheless argues that Minnieland failed to adequately 

contest the enforceability of the delegation provision because its complaint did not 

“specifically challenge” the delegation provision. Appellant’s Br. at 5; Appellant’s Reply 

Br. at 7–8. But a defendant who seeks to compel arbitration under the Federal 
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Arbitration Act bears the burden of establishing the existence of a binding contract to 

arbitrate the dispute. See Adkins v. Labor Ready, Inc., 303 F.3d 496, 500–01 (4th Cir. 

2002). And until a defendant moves to compel arbitration, there is no reason for a 

plaintiff to assert any grounds for disregarding an arbitration agreement. Accordingly,

the absence of allegations in Minnieland’s complaint challenging the enforceability of the 

delegation provision has no bearing on whether the district court properly denied Applied 

Underwriters’ motion to compel arbitration.

Having concluded that Minnieland challenged the enforceability of the delegation 

provision, we now determine whether the delegation provision is unenforceable “upon 

such grounds as exist at law or in equity.” 9 U.S.C. § 2. For several reasons, we 

conclude that Section 38.2–312 renders invalid delegation provisions in putative 

insurance contracts governed by Virginia law, at least to the extent such delegation 

provisions endow an arbitrator, as opposed to a court, with exclusive authority to 

determine whether the contract at issue constitutes an “insurance contract” for purposes 

of Virginia law.1

 

 1 In reaching this conclusion, we express no opinion as to whether Section 38.2–

312 renders invalid a putative insurance contract’s delegation of other gateway issues to 

arbitrators. Likewise, we express no opinion as to whether questions, gateway or 

otherwise, of judicial estoppel—a doctrine applied “to protect the integrity of the judicial 

process” and “to prevent improper use of judicial machinery”—are ever delegable to 

arbitrators. New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001) (internal quotation 

marks omitted); Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982) (holding 

that judicial estoppel “protect[s] the essential integrity of the judicial process”). 
13

To begin, we find it significant that Virginia chose to treat arbitration provisions in 

insurance contracts as “void.” Va. Code § 38.2–312. Under Virginia law, when a 

provision in an insurance contract is “void,” it is “unenforceable from its inception.” 

Liverpool & London & Globe Ins. Co. v. Bolling, 10 S.E.2d 518, 522 (Va. 1940); see also 

Joseph M. Perrillo, Calamari and Perrillo on Contracts § 1.8(b) (6th ed. 2009) (“A 

contract is void, a contradiction in terms, when it produces no legal obligation. . . . It 

would be more exact to say that no contract was created.”). If an agreement including a 

delegation provision constitutes an “insurance contract,” the delegation provision—an 

“additional, antecedent agreement” to arbitrate, Rent-A-Center, 561 U.S. at 70—is 

“unenforceable from its inception.” Thus, Virginia’s decision to treat delegation 

provisions in insurance contracts as void constitutes “grounds as exist at law . . . for the 

revocation of any contract.” 9 U.S.C. § 2. 

We also reach this conclusion because Section 38.2–312 reflects a state policy 

choice that insureds should have the option to seek enforcement of Virginia’s insurance 

laws and regulations in court, rather than through arbitration. Enforcing contractual 

provisions that provide arbitrators with exclusive authority to determine whether a 

contract amounts to a “contract of insurance”—a term defined by Virginia law—would 

undermine that purpose by giving the arbitrators exclusive authority over a core question 

of Virginia insurance law. Indeed, were an arbitrator to incorrectly determine that a 

contract was not an “insurance contract” for purposes of Virginia law and move forward 

with arbitration of the underlying dispute—or to correctly conclude that a contract was an 

insurance contract and then incorrectly move forward with arbitration of the underlying 
14

dispute—a Virginia insured would be deprived of recourse to the judiciary to resolve a 

dispute over the interpretation of an insurance contract governed by Virginia law, the 

precise outcome Virginia sought to prevent in enacting Section 38.2–312.

Applied Underwriters argues that this conclusion places this Court in conflict with 

the Third and Sixth Circuits, which have held that questions of arbitrability of RPAs 

between Applied Underwriters and other Equity Comp customers—and governed by 

different state laws—were for the arbitrator to resolve. See S. Jersey Sanitation Co. v. 

Applied Underwriters Captive Risk Assurance Co., 840 F.3d 138, 146 (3d Cir. 2016); 

Milan Express Co. v. Applied Underwriters Captive Risk Assurance Co., 590 Fed. App’x 

482, 486 (6th Cir. 2014). We disagree. Neither South Jersey Sanitation nor Milan 

Express considered—much less decided—whether the relevant state insurance laws 

rendered unenforceable the delegation provision in the RPA—the question we resolve 

here. Accordingly, South Jersey Sanitation and Milan Express are inapposite to whether 

Section 38.2–312 renders void delegation provisions in putative insurance contracts 

governed by Virginia law.

In sum, because Section 38.2–312 renders void delegation provisions in putative 

insurance contracts—at least to the extent such provisions authorize an arbitrator to 

resolve whether the contract at issue constitutes an “insurance contract”—we conclude 

that the district court did not reversibly err in denying Applied Underwriters’ motion to 

compel arbitration.

B.
15

Having concluded that the court, not an arbitrator, should determine whether the 

RPA constitutes an insurance contract for purposes of Virginia law, we now must decide 

whether the district court properly applied the doctrine of judicial estoppel to preclude 

Applied Underwriters from taking the position that the RPA is not an insurance contract. 

This Court reviews for abuse of discretion a district court’s application of the equitable 

doctrine of judicial estoppel. See King v. Herbert J. Thomas Mem’l Hosp., 159 F.3d 192, 

196 (4th Cir. 1998) (“As an equitable doctrine, judicial estoppel is invoked in the 

discretion of the district court . . . .”).

“Judicial estoppel precludes a party from adopting a position that is inconsistent 

with a stance taken in prior litigation.” John S. Clark Co. v. Faggert & Frieden, P.C., 65 

F.3d 26, 28 (4th Cir. 1995). “The purpose of the doctrine is to prevent a party from 

playing fast and loose with the courts, and to protect the essential integrity of the judicial 

process.” Id. at 29 (internal quotation marks omitted). “Even so, courts must apply the 

doctrine with caution.” Id.

To that end, this Court has identified four elements that must be met before a court 

may apply judicial estoppel: (1) “the party sought to be estopped must be seeking to 

adopt a position that is inconsistent with a stance taken in prior litigation;” (2) “the 

position sought to be estopped must be one of fact rather than law or legal theory;” 

(3) “the prior inconsistent position must have been accepted by the court;” and (4) “the 

party sought to be estopped must have intentionally misled the court to gain unfair 

advantage.” Lowery v. Stovall, 92 F.3d 219, 223–24 (4th Cir. 1996) (internal quotation

marks omitted). We have characterized the final element as “determinative.” Id. at 224 
16

(internal quotation marks omitted). Applying this test, we conclude that the district court 

committed legal error in applying judicial estoppel and, therefore, abused its discretion. 

See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 235 (4th Cir. 

2014) (“A district court abuses its discretion when it misapprehends or misapplies the 

applicable law.”).

With respect the first element, the district court concluded that Applied 

Underwriters’ position that “the RPA is a contract of reinsurance and not a contract of 

insurance” was “inconsistent with those [positions] asserted in other legal proceedings.” 

J.A. 465. But none of the other proceedings in which Applied Underwriters allegedly 

took an inconsistent position involved whether the RPA constituted an “insurance 

contract” for purposes of Virginia law—the question at issue here. Therefore, Applied 

Underwriters’ assertion that the RPA is not an insurance contract for purposes of Virginia 

law is not inconsistent with its legal position in any of those cases. Additionally, in 

several cases, Applied Underwriters has argued expressly that the RPA did not constitute 

an insurance contract for purposes of the relevant state law. See S. Jersey Sanitation, 840 

F.3d at 141 (stating that Applied Underwriters argued that, under Nebraska law, the RPA 

“was not a workers’ compensation insurance policy, but rather an investment 

instrument[,] . . . a contract relating [to] or concerning a reinsurance policy” (internal 

quotation marks omitted)); Milan Express Co. v. Applied Underwriters Captive Risk 

Assurance Co., 993 F. Supp. 2d 846, 856 (W.D. Tenn.) (noting that, “[a]ccording to 

[Applied Underwriters], . . . the RPA does not concern or relate to a policy of insurance 

and therefore is outside the scope of” the Nebraska state statute prohibiting mandatory 
17

arbitration provisions in insurance contracts (internal quotation marks omitted)), vacated

and remanded on other grounds, 590 Fed. App’x 482 (2014). Accordingly, Applied 

Underwriters’ position in this case is entirely consistent with the position it has taken in 

several other cases.

The second element—that judicial estoppel may only be applied when the position 

sought to be estopped is one of fact rather than law—also is not met in this case. Here, 

Applied Underwriters’ position is that the RPA does not constitute an insurance contract 

for purposes of Virginia law. Under Virginia law, the interpretation of a contract—and 

an insurance contract, in particular—presents a question of law. See PBM Nutritionals, 

LLC v. Lexington Ins. Co., 724 S.E.2d 707, 712–13 (Va. 2012). Likewise, the meaning

of “insurance contract” in Section 38.2–312 poses a question of law. See Conyers v. 

Martial Arts World of Richmond, Inc., 639 S.E.2d 174, 178 (Va. 2007) (“[A]n issue of 

statutory interpretation is a pure question of law . . . .”). Accordingly, the position at 

issue is one of law, rather than fact.

Regarding the third and fourth elements—judicial reliance and intent to mislead to 

gain an unfair advantage—each of those elements necessarily contemplate that the 

position at issue is inconsistent with a position taken by the party in earlier litigation. 

Because Applied Underwriters’ assertion that the RPA does not constitute an “insurance 

contract” for purposes of Section 38.2–312 is not inconsistent with any position taken by 

Applied Underwriters in previous proceedings, see supra, the third and fourth elements 

also do not support application of judicial estoppel.
18

III.

In sum, the district court correctly denied Applied Underwriters’ motion to compel 

arbitration, but incorrectly applied the doctrine of judicial estoppel in holding that the 

RPA constitutes an “insurance contract” for purposes of Section 38.2–312. The parties 

have not had the opportunity to fully brief and argue whether, if judicial estoppel does not 

apply, the RPA is an insurance contract under Virginia law. As such, we remand for 

consideration of that issue in the first instance and further proceedings consistent with 

this opinion. 

AFFIRMED IN PART, 

REVERSED IN PART, 

AND REMANDED