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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13-3434

No. 13-3435

No. 13-3436

_____________

MOTIVA ENTERPRISES LLC,

v.

SWISS RE INTERNATIONAL S.E., f/k/a SR International Business Insurance Company 

PLC; LIBERTY MUTUAL INSURANCE COMPANY; ZURICH AMERICAN 

INSURANCE COMPANY; CHARTIS PROPERTY CASUALTY COMPANY; ACE 

AMERICAN INSURANCE COMPANY; STARR TECHNICAL RISKS AGENCY 

INC; GENERAL SECURITY INDEMNITY COMPANY OF ARIZONA; ARCH 

INSURANCE COMPANY; LANCASHIRE INSURANCE COMPANY LIMITED; 

CATLIN LLOYDS SYNDICATE NO. 2003 SJC; O'FARRELL LLOYDS 

SYNDICATE NO. 1036 COF; NAVIGATORS MANAGEMENT COMPANY INC; 

STELLAR INSURANCE LTD; NOBLE ASSURANCE COMPANY; CUNNINGHAM 

LINDSEY US INC; QBE MARINE & ENERGY SYNDICATE 1036

Swiss Re: International S.E. f/k/a SR International Business Insurance Company PLC, 

Liberty Mutual Insurance Company, Zurich American Insurance Company, Chartis 

Property Casualty Company, Ace American Insurance Company, Starr Technical Risks 

Agency Inc., General Security Indemnity Company of Arizona, Arch Insurance 

Company, Lancashire Insurance Company Limited, Catlin Lloyds Syndicate No. 2003 

SJC, Navigators Management Company Inc., QBE Marine & Energy Syndicate 1036,

 Appellants in 13-3434 and 13-3436

Cunningham Lindsey US Inc.,

Appellant in 13-3435

____________

On Appeal from the United States District Court 

for the District of Delaware (No. 12-cv-1097 & No. 12-cv-1460)

District Judge: Hon. Leonard P. Stark

____________
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Submitted Pursuant to Third Circuit LAR 34.1(a)

June 23, 2014

Before: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges.

(Filed: August 22, 2014)

OPINION OF THE COURT

FUENTES, Circuit Judge:

Motiva Enterprises LLC twice sued its insurers in Delaware state court. In the first 

action, Motiva sought a declaration that its insurance policy covered a property damage 

claim; in the second, Motiva sought an injunction against arbitration proceedings. 

Motiva’s insurers, the defendants in both cases, removed to federal court. Motiva moved 

the District Court to remand the cases, relying on forum-selection language contained in 

the parties’ insurance policy. The District Court accepted Motiva’s argument and granted 

the motion. Because the insurance policy selects Delaware’s state courts as the exclusive 

forum for these disputes, we affirm. 

I. Background

After Motiva’s property caught fire, it sued its insurers in Delaware Superior Court. 

Motiva sought a declaration that its insurance policy covered the damage. One of the 

insurers, Swiss Re, removed the action to federal district court. It asserted diversity and 

federal question jurisdiction. The insurers then commenced arbitration proceedings 

against Motiva, citing arbitration clauses of the policy. Motiva responded by filing an 

action in Delaware’s Court of Chancery to enjoin the arbitration. The defendants 

removed that case to federal court, too.
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Motiva moved the District Court for remand. It argued that the parties expressly 

agreed to litigate coverage disputes in Delaware state court and that the insurers waived 

their right to remove. Motiva pointed to language in the Schedule to the insurance policy 

that specified, “[i]n the event of a dispute between the Insured and Insurers,” the terms of 

the policy would be subject to “the Law of Delaware” and “Jurisdiction of the State of 

Delaware, USA.” App’x 61. Motiva also noted that parties “agree[d] to submit, except 

where the dispute relates to the amount to be paid under this Policy only, to the exclusive 

jurisdiction of the courts stated in the Schedule and to comply with all requirements to 

give such jurisdiction.” App’x 80. 

In response, the insurers emphasized that the policy elsewhere stated that “[n]othing 

in this Clause constitutes or should be understood to constitute a waiver of Underwriters’ 

rights . . . to remove an action to a United States District Court.” Id. They also contended 

that the term “Jurisdiction of the State of Delaware,” used in the policy Schedule, 

included federal courts situated in Delaware.

After analyzing the parties’ arguments and the language of the contract, the District 

Court granted Motiva’s motions. The insurers appealed.

II. Jurisdiction

We have limited jurisdiction over remand orders. “If at any time before final 

judgment it appears that the district court lacks subject matter jurisdiction” over a case 

removed from state court, “the case shall be remanded.” 28 U.S.C. § 1447(c). Generally, 

“[a]n order remanding a case to the State court from which it was removed is not 

reviewable on appeal or otherwise.” See 28 U.S.C. § 1447(d). When the remand order is 

not based on a defect in the removal procedure or a lack of subject matter jurisdiction, 
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however, § 1447(d) does not prohibit appellate review. Quackenbush v. Allstate Ins. Co., 

517 U.S. 706, 711-12 (1996). 

The District Court’s remand order rested on the parties’ forum-selection clause, so 

§ 1447(d) does not apply. See Foster v. Chesapeake Ins. Co., 933 F.3d 1207, 1216 (3d 

Cir. 1991). Accordingly, we construe the remand order to effectively terminate the 

federal litigation and exercise jurisdiction pursuant to 28 U.S.C. § 1291. 

III.Discussion1

Parties may contractually waive their right to remove an action to federal court. See 

New Jersey v. Merrill Lynch & Co., 640 F.3d 545, 547 (3d Cir. 2011). The parties dispute 

whether, to be effective, the waiver must appear in the policy’s plain and ordinary 

language, or whether the waiver must appear in clear and unambiguous language because 

the policy’s arbitration clauses implicate the Federal Arbitration Act’s more exacting 

removal-waiver rule. Compare Ario v. Underwriting Members of Syndicate 53 at Lloyds 

for 1998 Year of Account, 618 F.3d 277, 289 (3d Cir. 2010) (applying “clear and 

unambiguous” standard) with Merrill Lynch & Co., 640 F.3d at 548 (applying “plain and 

ordinary meaning” standard). We conclude that the policy unambiguously waives 

removal and, therefore, affirm without deciding which standard to apply.

We agree with the District Court’s keen analysis of the contract. Although the policy 

language appears contradictory at first glance—selecting Delaware’s courts as the forum 

in one clause, yet preserving removal in another—upon closer inspection it is coherent 

 

1 We exercise plenary review of these contractual and waiver issues. See Ario v. 

Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of Account, 618 F.3d 

277, 287 (3d Cir. 2010).
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and complementary. As the District Court concluded, the policy contemplates three types 

of disputes:

The three types of claims are: (1) disputes over an amount to be 

paid; (2) disputes over a failure to pay; and (3) any other disputes 

concerning the Policy, including coverage. The first category of 

disputes is the subject of the “Arbitration” section of the Policy, 

which channels such disputes first to mediation and, if unresolved, 

“shall then be referred to arbitration . . . [in] London, England. The 

second category is the subject of Section 13’s “Disputes Clause” and 

specifically its subsection on “Service of Suit.” This provision 

provides that “in the event of the failure of the Underwriters hereon 

to pay,” the dispute may be brought to “a court of competent 

jurisdiction within the State of Delaware;” with respect to this 

category of disputes, the parties reserve their right to remove. Hence, 

the Policy’s express right to remove is limited to disputes over a 

failure to pay. The third category deals with all other disputes 

concerning the Policy, including—as here—disputes over coverage. 

The handling of this third category of disputes is addressed in 

Section 13’s “Disputes Clause;” this category of disputes is subject 

to “the exclusive jurisdiction of the courts stated in the Schedule,” 

i.e., the Delaware state courts.

App’x 20 (citations omitted). Because this dispute concerns coverage, it must be 

presented to the Delaware state courts.

We reject the insurers’ argument that the words “[n]othing in this Clause constitutes 

or should be understood to constitute a waiver of Underwriters’ rights . . . to remove” 

modify the forum-selection clause. App’x 80. As the District Court noted, “this Clause” 

refers to the Service of Suit section, not to the policy as a whole. App’x 19. Any other 

reading would ignore or contradict the arbitration and forum-selection clauses elsewhere 

in the policy. We also reject the insurers’ argument that the term “Jurisdiction of the State 

of Delaware, USA,” see App’x 61, can be construed to encompass the jurisdiction of 

federal courts located in Delaware. A stipulation to the exclusive jurisdiction of the courts 
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of a particular state does not simultaneously submit the parties to the distinct jurisdiction 

of the federal courts.

IV.Conclusion

We affirm the District Court’s remand order. This dispute concerns coverage. The 

parties selected the courts of the State of Delaware as the exclusive forum for their policy 

coverage disputes. Accordingly, the insurers waived their right to remove the Delaware 

actions to federal court.