Case: 24-30097 Document: 88-1 Page: 1 Date Filed: 06/25/2025
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 24-30097
____________ FILED
June 25, 2025
Edward F. Breaux, Jr.; Linda Breaux, Lyle W. Cayce
Clerk
Plaintiffs—Appellants,
versus
Kevin Ray Worrell; City of Wilson North Carolina;
Travelers Indemnity Company, incorrectly named as Travelers
Indemnity Insurance Company; Travelers Property
Casualty Company of America,
Defendants—Appellees,
______________________________
Jessie J. Blanchard; Vickie B. Blanchard,
Plaintiffs—Appellants,
versus
Travelers Indemnity Company; Kevin Ray Worrell, City of
Wilson North Carolina,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
Case: 24-30097 Document: 88-1 Page: 2 Date Filed: 06/25/2025
for the Western District of Louisiana
USDC Nos. 6:22-CV-5169, 6:22-CV-5254
______________________________
Before Higginbotham, Willett, and Ho, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
As this case requires interpretation and application of a Louisiana
emergency preparedness law and we doubt our ability to make a reliable Erie
guess as to its proper reading, we CERTIFY two questions to the Louisiana
Supreme Court.
I.
The State of Louisiana enacted the Homeland Security and
Emergency Assistance and Disaster Act in 1993 “[b]ecause of the existing
possibility of the occurrence of emergencies and disasters of unprecedented
size and destructiveness resulting from . . . natural or manmade causes . . . .” 1
The Act authorizes the creation of local organizations for emergency
preparedness and the seeding of cooperation among the state’s agencies and
political subdivisions in preparing for and responding to emergencies, 2 and
includes the following immunity provision:
Neither the state nor any political subdivision thereof, nor
other state agencies, nor, except in case of willful misconduct,
the employees or representatives of any of them engaged in
any homeland security and emergency preparedness and
recovery activities, while complying with or attempting to
comply with this Chapter or any rule or regulation promulgated
pursuant to the provisions of this Chapter shall be liable for the
_____________________
1
La. R.S. 29:722(A).
2
Id.
2
Case: 24-30097 Document: 88-1 Page: 3 Date Filed: 06/25/2025
death of or any injury to persons or damage to property as a
result of such activity. 3
The Act defines “emergency preparedness” to mean “the mitigation of,
preparation for, response to, and the recovery from emergencies or
disasters,” and defines “disaster” to specifically include hurricanes. 4
Following Hurricane Ida in 2021, the Terrebonne Parish requested
assistance from Lafayette Utilities Systems (“LUS”) to help its employees
restore power in Houma, Louisiana. LUS in turn requested assistance from
the City of Wilson, North Carolina on behalf of Terrebonne Parish.
Subsequently, Terrebonne Parish and the cities of Lafayette and Wilson
signed agreements to facilitate emergency assistance in Terrebonne Parish.
The City of Wilson dispatched employees to Louisiana. Due to a
shortage of hotels in Houma, the employees stayed in Lafayette, commuting
to Houma daily. One of those employees, Defendant Kevin Worrell, drove a
vehicle owned by the City of Wilson to transport himself and another City of
Wilson employee from Houma back to their hotel in Lafayette. Upon exiting
Highway U.S. 90 in Morgan City, Louisiana, Worrell collided with a vehicle
driven by Edward Breaux and occupied by his wife, Linda Breaux, and their
friends, co-plaintiffs Jessie and Vickie Blanchard. A police officer responded
and cited Worrell with failure to yield at a stop sign.
The City of Wilson considered the drive from Houma to the hotel in
Lafayette to be an errand for the City of Wilson that was within the scope of
his employment. Worrell was compensated on an hourly basis by the City of
Wilson while in Louisiana and did not receive compensation for his work
_____________________
3
La. R.S. 29:735(A)(1) (emphasis added).
4
La. R.S. 29:723(4), (6).
3
Case: 24-30097 Document: 88-1 Page: 4 Date Filed: 06/25/2025
from the City of Houma or the State of Louisiana. Whether Worrell was
directed to drive back to the hotel is unclear. 5
The Breauxs and the Blanchards filed separate lawsuits in Louisiana
state court, and their cases were removed to federal district court in the
Western District of Louisiana based on diversity of citizenship. They brought
two separate negligence actions against Worrell and his co-defendants, the
City of Wilson and the City’s insurers. Those actions were consolidated by
the district court.
Defendants moved for summary judgment, asserting the Act’s
immunity provision. The district court found statutory immunity, granted
the motions for summary judgment, and dismissed Plaintiffs’ claims with
prejudice. Plaintiffs then filed this appeal challenging the district court’s
interpretation of the scope of the Act’s immunity provision.
II.
A.
Summary judgment shall be granted “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” 6 “[A] fact is genuinely in dispute only if a
reasonable jury could return a verdict for the nonmoving party.” 7 A court
_____________________
5
The City of Wilson did admit, however, that Worrell had the City of Wilson’s
permission to drive the truck at the time of the accident.
6
Milteer v. Navarro Cnty., Tex., 99 F.4th 268, 272 (5th Cir. 2024) (quoting FED. R.
CIV. P. 56(a)).
7
Id. (quoting E.E.O.C. v. Methodist Hosps. of Dall.,
62 F.4th 938, 943 (5th Cir.
2023)).
4
Case: 24-30097 Document: 88-1 Page: 5 Date Filed: 06/25/2025
must construe all facts and draw all reasonable inferences in the light most
favorable to the non-moving party. 8
B.
It is a given that we must here apply Louisiana law. 9
“To determine Louisiana law, we look to the final decisions of the
Louisiana Supreme Court,” 10 but we find no final decision applicable to the
issues in this case. Without guidance from the Louisiana Supreme Court, this
court “must make an Erie guess and determine, in our best judgment, how
[the Louisiana Supreme Court] would resolve the issue if presented with the
same case.” 11 In making an Erie guess, this court “must employ Louisiana’s
civilian methodology, whereby we first examine primary sources of law: the
constitution, codes, and statutes.” 12 In other words, “the primary basis of
law for a civilian is legislation, and not (as in the common law) a great body
of tradition in the form of prior decisions of the courts.” 13 Jurisprudence is
“merely” a secondary law source. 14
When applying a statute, the statute’s words are to be “given their
generally prevailing meaning” unless the statute is unclear or its application
_____________________
8
Id. (citing E.E.O.C., 62 F.4th at 943).
9
In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (citation
omitted). No party contests the application of Louisiana law.
10
Id.
11
Id. (citations omitted).
12
Id. (citations omitted).
13
Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.
2003) (quoting Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co.,
953 F.2d 985, 988 (5th
Cir.1992)).
14
Id. at 261.
5
Case: 24-30097 Document: 88-1 Page: 6 Date Filed: 06/25/2025
leads to absurd consequences. 15 When a statute is susceptible to different
meanings, however, it should be given the meaning that best conforms to the
general intent and purpose of the legislature that enacted the law. 16
When no rule can be derived from legislation or custom, Louisiana
courts are bound to proceed based on “justice, reason, and prevailing
usages.” 17 Should the Fifth Circuit need to reach this stage of legal analysis
of Louisiana Law, it may turn to dictionary definitions to ascertain the
meaning of a law. 18
III.
Defendants challenge the district court’s interpretation of the Act’s
immunization provision and whether the Act covers Worrell. There appear
to be three questions of law vital to interpreting the scope of the Act: (1) What
is a “representative” of the state of Louisiana or one of its political
subdivisions? (2) What does it mean to be “engaged in” an “emergency
preparedness” activity? (3) What does it mean for injury to a person or
damage to a property to be the “result of such activity”?
With answers to these three questions, this court may then address
three corresponding questions: (1) Was Worrell here a representative of the
state of Louisiana or one of its political subdivisions? (2) Was Worrell here
_____________________
15
La. Civ. Code art. 11; La. R.S. § 1:3; La. Civ. Code art. 9.
16
La. Civ. Code art. 10; Pumphrey v. City of New Orleans, 925 So.2d 1202, 1209 (La.
2006); Keenan v. Donaldson, Lufkin & Jenrette, Inc.,
529 F.3d 569, 573 (5th Cir. 2008)
(citing Pumphrey,
925 So.2d at 1209-10).
17
La. Civ. Code art. 4.
18
See, e.g., Boyett v. Redland Ins. Co., 741 F.3d 604, 615 (5th Cir. 2014) (looking to
dictionaries to define the term “motor vehicle”); Gregor v. Argenal Great Cent. Ins. Co.,
851
So.2d 959, 964 (La. 2003), (“Dictionaries are a valuable source for determining the
common and approved usage of words.” (internal quotation omitted)).
6
Case: 24-30097 Document: 88-1 Page: 7 Date Filed: 06/25/2025
engaged in emergency preparedness activities at the time of the accident? (3)
Were Plaintiffs here injured as a result of those activities? If there is a genuine
dispute as to any of these material facts, while construing all facts and
drawing all reasonable inferences in the light most favorable to Plaintiffs, we
must vacate the district court’s grant of summary judgment and remand the
case for further proceedings.
A.
The lack of clarity in the meaning of the term “representative” under
the Act makes Worrell’s potential status as a “representative” unclear. No
plaintiff argues that Worrell was an employee of Louisiana or one of its
political subdivisions, and Worrell admits that he was an employee of the City
of Wilson. But was he a representative of a political subdivision of Louisiana?
The Act does not define “representative” we are unable to find
Louisiana law or a Louisiana appellate court decision shedding light on the
meaning of “representative” under the Act. Without guidance from the
Louisiana legislature or Louisiana’s courts, we may look to dictionaries. But
we find no comfort there. The relevant authorities “do not lead us to a
definite answer” and “any Erie guess would involve more divining than
discerning.” 19
B.
The legislature’s use of “emergency preparedness” is likewise
opaque. The Act defines “emergency preparedness” to mean “the
mitigation of, preparation for, response to, and the recovery from
emergencies or disasters,” and defines a “disaster” to specifically include
_____________________
19
Sanders v. Boeing Co., 68 F.4th 977, 982 (5th Cir.) (quotation omitted), certified
question accepted (June 2, 2023), certified question answered,
680 S.W.3d 340 (Tex. 2023).
7
Case: 24-30097 Document: 88-1 Page: 8 Date Filed: 06/25/2025
hurricanes. 20 Thus, the Act may immunize certain individuals who are
“engaged in” the “response to, and the recovery from” a hurricane.
As for the meaning of “engaged in,” one unpublished Louisiana
Supreme Court opinion gives color to the meaning of this phrase. In Benton
v. State, a Louisiana Department of Children and Family Services employee
was directed by the Department to drive to an “alternate work location”
outside of normal work hours to distribute Disaster Supplemental Nutritional
Assistance Program cards to flood victims. 21 The majority opinion recognizes
that the employee was directed to drive to the alternate location and held that
“[t]his directive and the extraordinary travel incident thereto caused [the
employee] to be engaged in a homeland security and emergency preparedness
and recovery activity at the time of the accident.” 22
At the very least, then, traveling to (but not necessarily from) an
emergency preparedness destination outside of normal working hours due to an
employer’s direction can constitute “engaging in” emergency preparedness
activity. 23 But it is not clear whether traveling from an emergency
preparedness destination within normal working hours and without any
employer directive can constitute “engaging in” emergency preparedness
activity. It is difficult to discern—rather than divine—the meaning of
_____________________
20
La. R.S. 29:723(4), (6).
21
Benton v. State through Dep’t of Child. & Fam. Servs., 2020-1214 (La. App. 1 Cir.
82021), writ denied sub nom. Benton v. State, 332 So.3d 82 (La. 2022). See also Rabee v.
Louisiana Dep’t of Pub. Safety & Corr.,
378 So.3d 71, 74-75 (La. App. 5 Cir. 2023), reh’g
denied (La. 2023), writ denied,
379 So.3d 30 (La. 2024), and writ denied,
379 So.3d 34 (La.
2024).
22
Benton, 332 So.3d 82.
23
Id.
8
Case: 24-30097 Document: 88-1 Page: 9 Date Filed: 06/25/2025
“emergency preparedness” and whether returning to one’s hotel to sleep is
part of engaging in a recovery activity under the statute.
C.
The final legal question centers on the meaning of the phrase “result
of such activity.” By the statutory language, the Act only applies “while” an
actor is “complying with or attempting to comply” with the Act. According
to the Blanchards, the definition of “result of such activity” includes only
those activities “done while actively engaged in recovery activities.”
Defendants assert that Worrell was actively engaged in recovery activities at
the time of the accident, even though he was not at that time performing any
activity that directly aided in Terrebonne Parish’s recovery.
The answer to the third question is likely to be clarified by the answer
to the second. 24 If someone is engaged in an emergency preparedness activity
while traveling to one’s lodging from the site of their work, then any injury
arising from that travel would naturally be a “result of such activity.”
IV.
This court considers the following factors when deciding whether to
certify a question to a state supreme court:
(1) the closeness of the question(s);
(2) the degree to which considerations of federal-state comity
are relevant in light of the particular issue and case to be
decided; and
_____________________
24
The second question being: “What does it mean to be ‘engaged in’ an
‘emergency preparedness’ activity?”
9
Case: 24-30097 Document: 88-1 Page: 10 Date Filed: 06/25/2025
(3) practical considerations, such as the possibility of
significant delay or difficulty of framing the issue so as to
produce a helpful response on the part of the state court. 25
We are persuaded that these factors favor certification. Regarding the
first factor, each question is close. The statute’s text is unclear, no Louisiana
state court directly addresses the meaning of the text, and we find no
legislative authority or contemporary dictionary results detailing the meaning
of the text.
Regarding the second factor, comity interests counsel certification.
The Act is meant to ensure that preparations are adequate to deal with
emergencies and disasters and to recover from those events. 26 Proper
interpretation of the Act is significant for Louisiana, particularly given the
relatively high frequency of natural disasters impacting the state.
As to the meaning of “representative” in particular, interpretive
differences have developed in federal district courts. Before the 2020
amendment to the Act, Judge Ivan L.R. Lemelle read “representative” to
mean a Louisiana or a political subdivision that “provid[es] assignments and
exercise[es] operational control.” 27 Three years earlier, Judge Lemelle
determined that one is a representative if they “work[] at the behest of”
Louisiana or one of its political subdivisions and comply with the legislative
intent of the Act. 28 Judge Eldon E. Fallon in Lumpkin and Judge David C.
_____________________
25
Sanders, 68 F.4th at 981 (citations omitted); Menard v. Targa Res., L.L.C.,
56
F.4th 1019, 1022 (5th Cir.) (citations omitted), certified question accepted,
358 So.3d 37 (La.
2023), and certified question answered,
366 So.3d 1238 (La. 2023).
26
La. R.S. 29:722(B).
27
Banks v. City of New Orleans, 628 F. Supp. 2d 686, 691 (E.D. La. 2009).
28
Robin v. United States, No. CIV. A. 04-2230, 2006 WL 2038169, at *4 (E.D. La.
July 17, 2006), aff’d,
233 F. App’x 350 (5th Cir. 2007).
10
Case: 24-30097 Document: 88-1 Page: 11 Date Filed: 06/25/2025
Joseph in the instant case defined “representative” differently. 29 Certifying
questions regarding “representative” and the other vague terms would help
to ensure proper interpretation of Louisiana law across federal courts,
weighing in favor of certification.
Regarding these first two factors, this court has noted that cases
“where important state interests are at stake and the state courts have not
provided clear guidance on how to proceed” are “candidates for
certification.” 30 Here, Louisiana’s place in the heartland and the state’s
interest in responding to natural disasters—many unique to it—and given the
absence of state court opportunity to offer needed guidance on the questions
raised above, this case is a strong candidate for certification.
Turning to the final factor, we can perceive no hardship in certifying
these questions nor are we aware of any reason for significant delay, and
certifying questions in the service of federalism to the state court that speaks
the final word best ensures finality.
V.
Accordingly, we CERTIFY two questions to the Louisiana Supreme
Court which, if answered, will decide this case:
(1) Is an employee of a city of another state—working under an
agreement for emergency assistance between that city and a
Louisiana municipality—a “representative” of the State of
_____________________
29
See Breaux v. Worrell, No. 6:22-CV-05169, 2024 WL 263943, at *4-6 (W.D. La.
Jan. 24, 2024); Lumpkin v. Lanfair, No. CIV. A. 09-6248,
2010 WL 3825427, at *5 (E.D.
La. Sept. 23, 2010).
30
Silguero v. CSL Plasma, Inc., 907 F.3d 323, 333 (5th Cir.) (quotation omitted),
certified question accepted (Oct. 26, 2018), certified question answered,
579 S.W.3d 53 (Tex.
2019).
11
Case: 24-30097 Document: 88-1 Page: 12 Date Filed: 06/25/2025
Louisiana or one of its political subdivisions within the meaning
of La. R.S. 29.735?
(2) Is an individual providing emergency assistance in
Louisiana “engaging in . . . emergency preparedness and
recovery activities” under La. R.S. 29.735 while commuting
from the recovery site to his lodging?
We disclaim any intention or desire that the Louisiana Supreme Court
confine its reply to the precise form or scope of the questions certified. We
will resolve this case in accordance with any opinion provided on this
question by the Court. The Clerk of this Court is directed to transmit this
certification and request to the Louisiana Supreme Court in conformity with
the usual practice.
QUESTIONS CERTIFIED.
12
Case: 24-30097 Document: 88-1 Page: 13 Date Filed: 06/25/2025
James C. Ho, Circuit Judge, concurring in the judgment:
I must confess that I have trouble imagining how a municipal
employee and resident of one state could plausibly be considered a
“representative” of another state. And especially not under the
circumstances presented in this case—we would never describe a United
States soldier deployed to a foreign country to provide disaster relief as a
“representative” of that foreign country, after all. That having been said, my
distinguished colleagues would prefer to have these issues resolved by the
Supreme Court of Louisiana, considering that these are issues of Louisiana
state law. That is an entirely reasonable course of action. Accordingly, I
concur in the judgment.
13
