2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-9-2014

Flintkote Co v. Aviva PLC

Precedential or Non-Precedential: Precedential

Docket No. 13-4055

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Flintkote Co v. Aviva PLC" (2014). 2014 Decisions. Paper 1061.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/1061
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 13-4055

______________

FLINTKOTE COMPANY

v.

AVIVA PLC, 

formerly known as Commercial Union Assurance Company

Ltd.,

Appellant

______________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civ. No. 13-cv-00103)

District Judge: Hon. Leonard P. Stark

______________

Argued July 8, 2014

______________

Before: SMITH, VANASKIE, and SHWARTZ, Circuit 

Judges.

(Filed: October 9, 2014)
2

Fred L. Alvarez, Esq. [ARGUED]

Arthur J. McColgan, Esq.

Walker Wilcox Matousek

One North Franklin Street

Suite 3200

Chicago, IL 60606

Thaddeus J. Weaver, Esq.

Dilworth Paxson

704 King Street, Suite 500

P.O. Box 1031

Wilmington, DE 19801

Counsel for Appellant

Louis A. Chiafullo, Esq. [ARGUED]

Gita F. Rothschild, Esq.

McCarter & English

100 Mulberry Street

Four Gateway Center, 14th Floor

Newark, NJ 07102

Michael P. Kelly, Esq.

Katharine L. Mayer, Esq. 

McCarter & English, LLP

Renaissance Centre

405 N. King Street, 8th Floor

Wilmington, DE 19801

Counsel for Appellee

______________

OPINION OF THE COURT

______________
3

VANASKIE, Circuit Judge.

This case involves an effort by Appellee The Flintkote 

Company (Flintkote) to compel arbitration on a theory of 

equitable estoppel against Appellant Aviva PLC (Aviva), a 

non-signatory to the agreement containing the arbitration 

clause at issue. Aviva appeals the District Court’s order 

compelling arbitration and denying as moot Aviva’s motion 

to dismiss or transfer. Applying Delaware law, we conclude 

that Aviva is not equitably bound to arbitrate on these facts. 

We will therefore reverse the District Court’s order insofar as 

it compels arbitration, and will vacate the order to the extent 

that it denies as moot the motion to dismiss or transfer.

I.

Flintkote, which is incorporated in Delaware and 

headquartered in California, was one of the nation’s major 

suppliers of asbestos-based products. From 1980 onward, 

Flintkote’s parent company, Genstar Corporation, hedged

against the possibility of asbestos-related bodily injury claims

by procuring a vast number of insurance policies from

prominent London insurance firms—among them Aviva,1one 

of the largest insurance companies in the world. Within a 

matter of years, it became apparent that Flintkote’s claims 

under these policies would result in costly and protracted 

disputes regarding the scope of coverage.

 

1 Aviva was formerly named Commercial Union 

Assurance Company Ltd.
4

On June 19, 1985, Flintkote and several of the London 

insurers, but not Aviva, entered into a mass settlement known 

as the Wellington Agreement, which provided a structure for 

resolution of Flintkote’s then-pending and future insurance 

claims. Specifically, the Wellington Agreement required that 

disputes over coverage be resolved through a three-step ADR 

process consisting of open negotiation via mediation, binding 

arbitration, and an expedited appellate process. (App. 104.) 

Section XX of the Agreement required the London insurers to 

make certain payments to Flintkote, and Flintkote was 

obligated to reimburse the payors, with interest, if it also 

received those same payments from another insurer. (App. 

89–90.)

In 1989, Flintkote and Aviva entered into a separate 

agreement (the 1989 Agreement), which in substance was 

largely similar to the Wellington Agreement, including as to 

reimbursement for claims also paid by other insurers. Crucial 

to this case, however, is the fact that the 1989 Agreement 

contained a clause explicitly reserving each party’s right to 

resolve any disputes arising under that Agreement through 

litigation:

Flintkote and [Aviva] shall 

resolve through litigation any 

disputed issues to this Agreement, 

and nothing contained in any 

provision of this Agreement or in 

any provision of the Wellington 

Agreement, as applied to this 

Agreement, shall require [Aviva] 

and Flintkote to resolve any 

disputes that may arise between 

them relating to this Agreement 
5

through ADR under the 

Wellington Agreement.

(App. 137.)

Flintkote filed for bankruptcy in 2004, resulting in a 

case which remains pending in the United States Bankruptcy 

Court for the District of Delaware. See In re The Flintkote 

Co. & Flintkote Mines, Ltd., No. 04-11300 (Bankr. D. Del.). 

In 2006, invoking the Wellington Agreement, Flintkote 

initiated a large-scale coverage-related mediation with the 

London insurers. The Mediation Agreement, which itself 

contained no reference to the Wellington Agreement, 

provided that the parties’ conduct and statements made in the 

course of mediation were to be confidential.2 (App. 438–39.)

 

2

Specifically, the Mediation Agreement stated:

All offers, promises, conduct, and 

statements, whether oral or 

written, made in the course of the 

mediation by the parties, their 

agents, employees, experts and 

attorneys, and the mediator are 

confidential. Such offers, 

promises, conduct, and statements 

will not be disclosed to third 

parties, except persons associated 

with the parties in the mediation 

process and persons or entities to 

whom a party has a legal or 

contractual obligation to report, 

and are privileged and 

inadmissible for any purpose . . . .
6

Aviva, although not contractually obligated to participate, 

opted to join the mediation in an effort to resolve Flintkote’s 

pending claims for coverage.

Throughout the subsequent proceedings, Aviva and the 

other London insurers were jointly represented by the same 

counsel, Attorney Fred Alvarez. In a letter dated August 4, 

2006, Alvarez requested that Flintkote “participat[e] in 

submitting a joint motion to lift the automatic bankruptcy stay 

in Flintkote’s bankruptcy proceeding,” citing a concern that 

the stay might prevent Aviva and the other London insurers

from “fully present[ing] their defenses and claims in the 

Wellington ADR.” (App. 149.) Yet for reasons unknown, no 

such motion was filed at that time. As described below, the 

automatic stay remained in place until early 2013.

During the course of the ensuing mediation, Flintkote 

reached individual settlements with some of the London

insurers, but not with Aviva. On July 16, 2012, counsel for 

Aviva and the remaining other London insurers wrote to 

Flintkote seeking “reimbursement or off-set with respect to 

prior payments” as well as interest under Section XX of the 

Wellington Agreement. (App. 153.) The July 16 letter 

further stated that “[a]bsent resolution of the issues in the 

pending Wellington ADR, [the London insurers] intend[ed] to 

include the [reimbursement] issue[] in the Wellington 

Arbitration.” (Id.) Flintkote took no action on the demand.

Two months after the July 16 letter, the parties began 

to exchange draft arbitration agreements. The drafts contained 

 

(App. 438.)
7

standard reservations stating that they were provided only for 

“discussion purposes,” were subject to client review and 

approval, and were provided “without prejudice” to the 

parties’ rights under the applicable accords. (App. 444–47). 

The last draft arbitration agreement was sent to Flintkote by 

Alvarez on behalf of Aviva and the London insurers on 

December 14, 2012.

On December 24, 2012, Aviva, now acting separately 

from the remaining London insurers, moved in the Delaware 

Bankruptcy Court to lift the automatic stay imposed under 11 

U.S.C. § 362(d) “to allow it to pursue a declaratory judgment 

action in the United States District Court for the Northern 

District of California to determine the scope of the insurance 

coverage available for [Flintkote] under certain insurance 

policies” Aviva had issued. (App. 321.) On January 17, 

2013, before the Bankruptcy Court ruled on Aviva’s motion, 

Flintkote filed the instant declaratory judgment action against 

Aviva in the District of Delaware.

On February 4, the Bankruptcy Court granted Aviva’s 

motion to lift the stay, but delayed its effective date until 

February 19, thus preventing Aviva from filing its complaint 

in California until that date. On February 18, as plaintiff in 

the District of Delaware, Flintkote moved to compel 

arbitration pursuant to Section 4 of the Federal Arbitration 

Act (FAA), 9 U.S.C. § 4. The next day, Aviva filed its own 

declaratory judgment action in the Northern District of 

California. 

On March 1, Aviva moved to dismiss Flintkote’s 

action or transfer it to California. On March 13, Flintkote 

filed a motion to dismiss the Aviva action initiated in 

California, or have it transferred to Delaware. On May 14, 
8

the California court stayed Aviva’s action pending the 

Delaware court’s resolution of Aviva’s motion to dismiss or 

transfer Flintkote’s action.

In a memorandum and order filed September 30, 2013, 

the Delaware District Court granted Flintkote’s motion to 

compel arbitration, concluding that Aviva was equitably 

estopped from avoiding arbitration by virtue of its 

participation in the lengthy mediation process. The District 

Court denied as moot Aviva’s motion to dismiss or transfer. 

Aviva filed a timely notice of appeal. On November 21, 

2013, in light of the Delaware District Court’s order

compelling arbitration, the California District Court dismissed 

Aviva’s suit without prejudice. See Aviva PLC v. Flintkote 

Co., No. 13-00711, 2013 WL 6139748 (N.D. Cal. Nov. 21, 

2013).

II.

The District Court had jurisdiction in this case under 

28 U.S.C. § 1332(a) and 9 U.S.C. § 4. We have jurisdiction 

under 28 U.S.C. § 1291 and 9 U.S.C. § 16(a)(3). 

We exercise plenary review over the District Court’s 

order on a motion to compel arbitration. Quilloin v. Tenet 

Healthsystem Phila., Inc., 673 F.3d 221, 228 (3d Cir. 2012). 

In assessing the motion to compel arbitration itself, we apply 

the standard for summary judgment in Rule 56(a), under 

which the motion should be granted where “there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). We view the facts and draw inferences in the light 

most favorable to the nonmoving party. Quilloin, 673 F.3d at 

228. We apply this standard “because the district court’s 
9

order compelling arbitration is in effect a summary 

disposition of the issue of whether or not there had been a 

meeting of the minds on the agreement to arbitrate.” Century 

Indem. Co. v. Certain Underwriters at Lloyd’s, London, 584 

F.3d 513, 528 (3d Cir. 2009) (quotation marks and citations 

omitted).

III.

With its enactment of the FAA, Congress “expressed a 

strong federal policy in favor of resolving disputes through 

arbitration.” Id. at 522. Even in light of the FAA, however, 

we have recognized that “[a]rbitration is strictly a matter of 

contract. If a party has not agreed to arbitrate, the courts have 

no authority to mandate that he do so.” Bel-Ray Co., Inc. v. 

Chemrite (Pty) Ltd., 181 F.3d 435, 444 (3d Cir. 1999). Thus, 

in deciding whether a party may be compelled to arbitrate 

under the FAA, we first consider “(1) whether there is a valid 

agreement to arbitrate between the parties and, if so, (2) 

whether the merits-based dispute in question falls within the 

scope of that valid agreement.”

3

 Century Indem., 584 F.3d at

527. Here, it is undisputed that no express agreement to 

arbitrate existed between Flintkote and Aviva.

Instead, Flintkote relies upon our recurring admonition

that a party, despite being a non-signatory to an arbitration 

agreement, may be equitably bound to arbitrate “under 

traditional principles of contract and agency law.” E.I. 

 

3 Although a presumption in favor of arbitration exists, 

that presumption applies only when interpreting the scope of 

an arbitration agreement, and not when deciding whether a 

valid agreement exists. Century Indem., 584 F.3d at 527.
10

DuPont De Nemours & Co. v. Rhone Poulenc Fiber & Resin 

Intermediates, S.A.S., 269 F.3d 187, 194–95 (3d Cir. 2001). 

Such principles, which by the Supreme Court’s recent 

measure include “assumption, piercing the corporate veil, 

alter ego, incorporation by reference, third-party beneficiary 

theories, waiver and estoppel,” Arthur Andersen LLP v. 

Carlisle, 556 U.S. 624, 631 (2009) (quotation marks omitted), 

all are founded on the notion that a contract may sometimes 

be equitably enforced by or against even nonparties. In the 

wake of Arthur Andersen, however, we must expressly

consider “whether the relevant state contract law recognizes 

[the particular principle] as a ground for enforcing contracts 

against third parties.” Id. at 632. 

Neither the District Court’s opinion in this case nor the 

parties’ briefing addresses with particularity which state’s law 

governs Flintkote’s motion to compel arbitration.4 At 

various times throughout their briefing on Flintkote’s motion, 

however, both parties cite to either Delaware case law or 

federal opinions interpreting Delaware law. (See Appellant’s 

Br. at 22, 33–34; Appellee’s Br. at 23–24, 34; Appellant’s 

Reply Br. at 8; App. 65, 426, 558.) And the District Court 

ultimately concluded that Aviva was equitably bound to 

arbitrate under two distinct theories of estoppel, both of 

which arise under Delaware law: first, that Aviva “exploited” 

the Wellington agreement to secure benefits to which it would 

otherwise not have been entitled, E.I. DuPont, 269 F.3d at 

199 (addressing a diversity case implicating Delaware law); 

 

4 We recognize that the parties are at odds as to 

whether the substance of the underlying insurance dispute 

should be decided under California or Delaware law, and we 

take no position on that question. 
11

and second, that Aviva’s participation in mediation caused 

Flintkote to “change [its] position to [its] detriment[,]” Great 

Am. Credit Corp. v. Wilmington Hous. Auth., 680 F. Supp. 

131, 134 (D. Del. 1988) (quotation marks and citations 

omitted) (applying Delaware law). (App. 12–14.) For these 

reasons, and because neither party presented a timely 

argument that Flintkote’s motion is governed by the law of 

any jurisdiction other than the forum state, we too will apply 

the law of Delaware.5

 

5 Aviva suggested for the first time at oral argument 

that California law applies to the equitable estoppel analysis. 

Because Aviva did not make that argument in its briefing or 

before the District Court, we consider it waived. See 

Griswold v. Coventry First LLC, 762 F.3d 264, 272 n.6 (3d 

Cir. 2014) (noting that a “footnote in [a] reply brief” was 

“insufficient to raise a choice-of-law issue on appeal”).

In the alternative, we note that California law is 

materially similar to Delaware law on the basic principles of 

equitable estoppel. See Steinhart v. Cnty. of Los Angeles, 47 

Cal. 4th 1298, 1315 (Cal. 2010) (recognizing doctrine of 

equitable estoppel); NAMA Holdings, LLC v. Related World 

Mkt. Ctr., 922 A.2d 417, 431–33 (Del. Ch. 2007) (same); 

Goldman v. KPMG LLP, 173 Cal. App. 4th 209 (Cal. App. 

Ct. 2009) (compelling arbitration on the basis of equitable 

estoppel); Wilcox & Fetzer, Ltd. v. Corbett & Wilcox, No. 

2037-N, 2006 WL 2473665, *4–6 (Del. Ch. Aug. 22, 2006) 

(same); In re Marriage of Brinkman, 4 Cal. Rptr. 3d 722, 728 

(Cal. Ct. App. 2003) (requiring proof of equitable estoppel by 

clear and convincing evidence); Emp’rs’ Liab. Assurance

Corp. v. Madric, 183 A.2d 182, 188 (Del. 1962) (same). 
12

Delaware law recognizes the doctrine of equitable 

estoppel, see NAMA Holdings, LLC v. Related World Mkt. 

Ctr., 922 A.2d 417, 431–33 (Del. Ch. 2007), and imposes the 

burden of producing clear and convincing proof on the party 

asserting estoppel, see Emp’rs’ Liab. Assurance Corp. v. 

Madric, 183 A.2d 182, 188 (Del. 1962). “An estoppel may 

not rest upon an inference that is merely one of several 

possible inferences.” Id. We now consider Aviva’s

argument that Flintkote failed to justify application of 

equitable estoppel by clear and convincing evidence.

A.

As noted above, the first basis for the District Court’s 

opinion was what we have termed the “knowing exploitation”

theory of equitable estoppel. We first addressed that principle 

in E.I. DuPont, where, drawing on the opinions of other 

federal circuits, we explained that a non-signatory is equitably 

precluded from “embracing a contract, and then turning its 

back on the portions of the contract, such as an arbitration 

clause, that it finds distasteful.” 269 F.3d at 200.6

 

Thus, seeing no appreciable conflict of laws, we opt to apply 

the law of Delaware.

6 Delaware courts have since cited that portion of the 

E.I. DuPont opinion favorably on several occasions. See, 

e.g., Aveta Inc. v. Cavallieri, 23 A.3d 157, 182 (Del. Ch. 

2010); NAMA Holdings, 922 A.2d at 430–32 & nn.25–27, 35; 

Trenwick Am. Litig. Trust v. Ernst & Young, L.L.P., 906 A.2d 

168, 218 n.155 (Del. Ch. 2006). We thus have no concern 

that our continuing validation of E.I. DuPont constitutes an 
13

Delaware courts have identified several circumstances 

under which a non-signatory may “embrace” a contract: (1) 

where the non-signatory “direct[ly], rather than indirect[ly], 

benefit[ted] from the [agreement] during the course of the 

agreement’s performance[,]” NAMA Holdings, 922 A.2d at 

432; (2) where the non-signatory “‘consistently maintain[s] 

that other provisions of the same contract should be enforced 

to benefit him[,]’” Aveta Inc., 23 A.3d at 182 (quoting E.I. 

DuPont, 269 F.3d at 200); or (3) where the non-signatory 

“‘sue[s] to enforce the provisions of a contract that it likes, 

while simultaneously disclaiming the provisions that it does 

not[,]’” id. (quoting Town of Smyrna v. Kent Cnty. Levy 

Court, No. 244-K, 2004 WL 2671745, at *4 (Del. Ch. Nov. 9, 

2004)).7 Even so, a court must “proceed with a good deal of 

 

application of federal common law which would be precluded 

under Arthur Andersen. See Griswold, 762 F.3d at 272 n.6

(“Because we are satisfied that the Supreme Court's decision 

in Arthur Andersen did not overrule Third Circuit decisions 

consistent with relevant state law contract principles, we may 

rely on our prior decisions so long as they do not conflict with 

[the applicable] state law principles.”).

7 One might argue that we announced a more 

restrictive rule in Bouriez v. Carnegie Mellon University, 359 

F.3d 292, 295 (3d Cir. 2004), when we stated that “[a] person 

may also be equitably estopped from challenging an 

agreement that includes an arbitration clause when that 

person embraces the agreement and directly benefits from it.” 

(emphasis added) (citing E.I. DuPont, 269 F.3d at 199–200). 

But Bouriez has never been cited approvingly by a Delaware 

court, and in any event did not purport to apply Delaware law. 
14

caution . . . lest nuanced concepts of equity be allowed to 

override established legal principles of contract formation.” 

NAMA Holdings, 922 A.2d at 433 n.35.

Our review of the record leads us to conclude that

Flintkote has failed to adduce clear and convincing evidence 

that Aviva “embraced” the Wellington Agreement in any 

meaningful sense. First, the mediation in which Aviva 

participated was governed not by the Wellington Agreement, 

but by the Mediation Agreement—a document which (1) 

made no reference to the Wellington Agreement, (2) 

contained no arbitration provision, and (3) was structured on 

its own terms as a completely confidential procedure. To 

participate in the mediation, Aviva was not required to sign 

the Wellington Agreement or forfeit any rights under the 

1989 Agreement. In sum, there is simply no evidence that 

Aviva embraced the Wellington Agreement when it opted to 

participate in mediation alongside the other London insurers.8

 

Thus, in light of Arthur Andersen, we will not consider it 

here.

8

Flintkote argues that were it not for the Wellington 

Agreement, the mediation at issue would simply never have 

occurred, thus precluding Aviva from delaying the resolution 

of Flintkote’s insurance claims against it. To the extent that 

this can be considered a “benefit” at all, we consider it to be 

of the “indirect” sort that provides no basis for equitable 

estoppel. See NAMA Holdings, 922 A.2d at 432 (citing 

Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 

779 (2d Cir. 1995)).
15

Second, we do not view the July 16 letter that Attorney 

Alvarez sent Flintkote, in which he noted an ostensible right 

to reimbursement under Section XX of the Wellington 

Agreement, as a basis for application of equitable estoppel. 

(App. 153.) This single invocation of the Wellington 

Agreement, which appears to be an isolated event in the sixyear course of the mediation at issue, did not result in any 

direct benefit to Aviva. The request likewise falls well short 

of “consistently” seeking the benefit of “other provisions of 

the same contract[,]” or actually suing to enforce that clause. 

See Aveta Inc., 23 A.3d at 182. As a final point, we note that 

Aviva was entitled to reimbursement and interest under a 

similar provision in the 1989 Agreement, meaning that any 

reimbursement ultimately obtained by Aviva would have 

stemmed primarily, if not entirely, from the 1989 Agreement, 

not the Wellington Agreement.

Finally, Flintkote attempts to justify the District 

Court’s holding by noting the August 4, 2006 letter in which 

Attorney Alvarez requested that Flintkote join in filing a 

motion to lift the Bankruptcy Court’s automatic stay. (App. 

149.) No such joint motion was ever filed, and the automatic 

stay remained in place until being lifted, over Flintkote’s 

objection, to allow Aviva to file suit in the Northern District 

of California over six years later. Because the request in the 

August 4, 2006 letter was not an attempt to invoke any right 

under the Wellington Agreement, and because Aviva 

ultimately received no direct benefit as a result of the August 

4, 2006 letter, we conclude that it does not provide a basis for 

equitable estoppel.

In sum, the record does not contain clear and 

convincing evidence that Aviva “embraced” the Wellington 

Agreement by directly benefitting from that Agreement, 
16

consistently seeking to enforce that Agreement’s provisions 

for Aviva’s benefit, or suing to enforce rights ostensibly 

arising under that Agreement. The District Court thus erred 

in granting Flintkote’s motion to compel arbitration on this 

basis. 

B.

Delaware courts have also recognized that the doctrine 

of equitable estoppel may apply “when a party by his conduct 

intentionally or unintentionally leads another, in reliance 

upon that conduct, to change position to his detriment.”

Wilson v. Am. Ins. Co., 209 A.2d 902, 903–04 (Del. 1965). 

“The party claiming estoppel must demonstrate that: (i) they 

lacked knowledge or the means of obtaining knowledge of the 

truth of the facts in question; (ii) they reasonably relied on the 

conduct of the party against whom estoppel is claimed; and 

(iii) they suffered a prejudicial change of position as a result 

of their reliance.” Nevins v. Bryan, 885 A.2d 233, 249 (Del. 

Ch. 2005).

Here, the District Court found that Flintkote had 

reasonably relied on Aviva’s participation in the mediation 

process as an assurance that Aviva had disclaimed its right to 

litigation under the 1989 Agreement and instead consented to 

participation in the Wellington process, up to and including

binding arbitration. This purportedly operated to Flintkote’s 

detriment by delaying resolution of the underlying insurance 

claims at issue.

Even assuming that such delay might constitute a 

detriment under the circumstances, we conclude that Flintkote 

has still failed to establish two of the three factors described 

in Nevins. First, given that Flintkote was a signatory to the 
17

1989 Agreement, which contained an express litigation 

provision, Flintkote was on actual notice of “the truth of the 

facts in question,” i.e., that Aviva had negotiated for and 

specifically reserved the right to resolve all disputed issues 

through litigation. Cf. Great Am. Credit Corp., 680 F. Supp. 

at 134, 138 (declining to apply equitable estoppel where a 

contractor should have known of a statutory provision 

precluding payment to it if it failed to pay its subcontractors). 

Second, to the extent that Flintkote relied on Aviva’s 

participation in mediation as an unspoken waiver of its rights 

under the 1989 Agreement, such reliance was unreasonable. 

The Mediation Agreement contains no language to suggest 

that it displaced the 1989 Agreement’s litigation provision, 

makes no reference to the Wellington Agreement, and does 

not contemplate a resort to arbitration in the event of failure 

to reach a negotiated disposition. Flintkote’s mistaken 

assumption to the contrary could have been clarified with 

even a cursory inquiry at any point during the six-year 

mediation, and thus provides no basis for equitable estoppel.9

For these reasons, Flintkote could not have reasonably 

relied on Aviva’s participation in mediation as a basis to 

believe binding arbitration would occur if the mediation 

failed. We therefore conclude that the District Court erred in 

applying equitable estoppel under a theory of detrimental 

reliance to compel Aviva to arbitrate.

 

9

For the reasons already described in Part III.A, we 

attribute little significance to Aviva’s July 16 letter 

identifying issues that might be raised in arbitration. 

Similarly, the draft arbitration agreements exchanged by the

parties contained disclaimers that they were for discussion 

purposes only.
18

IV.

Finally, we find no merit in Flintkote’s auxiliary 

arguments based on waiver and implied-in-fact contract. 

Under Delaware law, “the standards for demonstrating 

waiver—the voluntary and intentional relinquishment of a 

known right—are quite exacting.” Amirsaleh v. Bd. of Trade 

of City of N.Y., Inc., 27 A.3d 522, 529 (Del. 2011) (quotation 

marks and citations omitted). As explained earlier, we see no 

conduct on Aviva’s part that, to a reasonable observer, would 

have conveyed an intent to waive or otherwise forgo its rights 

under the 1989 Agreement. And it is hornbook common law 

that courts will not infer an implied-in-fact contract where an 

express contractual provision already exists on the same 

point, as it does here under the 1989 Agreement. See 

Williston on Contracts, § 1:5.

V.

Because we will reverse the District Court’s order to 

the extent that it granted Flintkote’s motion to compel 

arbitration, Aviva’s motion to dismiss or transfer is no longer 

moot. We will therefore vacate the District Court’s order 

insofar as it addressed that motion. Because the District 

Court has not yet passed on the merits of the parties’ 

arguments as to venue, we express no opinion on the matter 

and leave it for resolution upon remand.

VI.

For the foregoing reasons, we will reverse the District 

Court’s order granting Flintkote’s motion to compel 

arbitration, vacate the District Court’s order denying as moot 
19

Aviva’s motion to dismiss or transfer, and remand for 

proceedings consistent with this Opinion.