Society of Lloyd's v. Cohen

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 5, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
03-21022
Summary Calendar
THE SOCIETY OF LLOYD’S,
Plaintiff-Appellee,
VERSUS
KEVIN COHEN,
Defendants-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(H-02-MC-464)
Before DUHÉ, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:1
Plaintiff-Appellee the Society of Lloyd’s obtained a default
judgment in England against Defendant-Appellant Kevin Cohen for
premiums he owed in connection with underwriting obligations.
Lloyd’s then brought this action in federal district court seeking
recognition of its judgment as final and enforceable, entitled to
full faith and credit in Texas. In a motion for non-recognition of
the foreign country judgment, Cohen asked the district court to

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2 The Act is found in Tex. Civ. Prac. & Rem. Code Ann. §§
36.001-36-008 (West 1997); see Banque Libanaise Pour Le Commerce v.
Khreich, 915 F.2d 1000, 1004 (5th Cir. 1990) for its applicability.
3 Tex. Civ. Prac. & Rem. Code Ann. §§ 36.002(a)(1), 36.004 (West
1997).
4 Id. § 36.005(a)(2).
5 Terry v. Raymond Int'l, Inc., 658 F.2d 398, 401, 403 (5th Cir.
1981)(recognizing service of process, along with amenability to
jurisdiction, as a “component of personal jurisdiction”), cert.
denied, 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 443 (1982).
2
find that service of process upon a “substitute agent” in England
was unacceptable and that he did not receive proper notice of the
English law suit before suffering a default judgment. The district
court denied the motion and enforced the default judgment against
Cohen. Because Cohen agreed to submit to the jurisdiction of the
courts of England, we affirm.
I.
The parties agree that the Uniform Foreign Money-Judgments
Recognition Act, or Texas Recognition Act, governs whether the
judgment will be enforced in Texas.2 The Act makes enforceable any
“foreign country judgment that is final and conclusive and
enforceable where rendered.”3 Under the Texas Recognition Act, a
foreign country judgment “is not conclusive if . . . the foreign
country court did not have personal jurisdiction over the
defendant.”4
Cohen’s challenge to service of process is a challenge to
personal jurisdiction.5 The Society of Lloyd’s served process on

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6 “Names” are the entities like Cohen who underwrite insurance,
constituting the Society of Lloyd’s. They accept an amount of the
premium and undertake unlimited liability for the share of the risk
assigned to them.
7 Cohen does not challenge the power to appoint AUA9 to sign the
Equitas contract and bind Cohen to liability.
8 R. 204 at ¶ 25.2 (emphasis added).
3
an entity in London called Additional Underwriting Agencies [No.
9], Ltd., or AUA9, as “substitute agent” rather than on Mr. Cohen
personally.
As part of a Reconstruction and Renewal Plan established to
settle underwriting losses arising from toxic tort litigation,
English legislation granted Lloyd’s the authority to appoint AUA9
to sign a reinsurance contract on behalf of Cohen and other Names,
binding them without their consent.6 AUA9 did enter into the
reinsurance contract, called the Equitas contract, under which
Cohen owes premiums.
Cohen challenges Lloyd’s appointment of AUA9 as agent
specifically for service of process.7 The Equitas contract itself
and not the enabling legislation is the purported source of Lloyd’s
right to appoint AUA9 as agent for service of process. That
contract provided that each Name not domiciled in England
irrevocably appoints [AUA9] as agent to accept service of
any proceedings in the English courts on his behalf. If
for any reason such agent shall cease to act as agent for
service of process of any Name, that Name . . . shall
forthwith appoint a replacement agent, approved by ERL,
in London.8
Cohen wrote Lloyd’s, however, advising that no person in

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9 R. 26.
10 R. 266 ¶ 2.2. That agreement “to submit to the jurisdiction”
of the courts is in addition to a forum-selection clause, providing
that the courts of England shall have exclusive jurisdiction. Id.
Similarly, the Equitas contract under which Cohen was found to owe
premiums provides that each Name irrevocably agrees to submit to
the jurisdiction of the High Court of England. R.205.
11 Tex. Civ. Prac. & Rem. Code Ann. § 36.006(a)(3) (emphasis
added).
4
England had authority to accept service of process on his behalf.9
Cohen thus maintains that he terminated AUA9's authority as
substitute agent for service.
When Cohen signed a General Undertaking to become a Name, he
“irrevocably agree[d] to submit to the jurisdiction of the courts
of England.”10 That agreement defeats his challenge to the foreign
judgment based on a service-of-process objection to personal
jurisdiction. The Texas Recognition Act states expressly, “A court
may not refuse to recognize a foreign country judgment for lack of
personal jurisdiction if . . . the defendant prior to the
commencement of the proceedings had agreed to submit to the
jurisdiction of the foreign country court with respect to the
subject matter involved.”11 Since Cohen entered such an agreement
before Lloyd’s began the proceedings against him, the district
court simply could not sustain Cohen’s challenge to personal
jurisdiction.
II.
Cohen also challenges the notice provided him of the suit.

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12 Id. § 36.005(b)(1).
13 Noting that the agency was created not for the benefit of the
principle, Cohen, but for the benefit of another, Lloyd’s, the
court deemed the authority granted to the agent to be a “power
given as security.” Applying common law (Restatement of Agency)
the court then noted that the revocability of an agency differs for
the two: while an agency created for the benefit of the principle
is revocable by the principle, the power given as security (not
created for the benefit of the principle) is revocable only in
accordance with the agreement by the which the power was created.
The court held that the Equitas contract was the agreement by which
the power was created and looked to that contract for the rights of
revocation.
5
The Texas Recognition Act provides the court discretion not to
recognize a foreign country judgment if the defendant “did not
receive notice of the proceedings in sufficient time to defend.”12
The district court determined that Cohen received adequate notice
through the service of the agent because his attempted revocation
of the agency was ineffective.
Relying on the Equitas contract provision quoted above, the
court held that it was the agent AUA9 and not Cohen who had the
right to revoke the agent’s authority and that from Cohen’s
perspective, the appointment was irrevocable.13 Accordingly, AUA9
remained Cohen’s agent and through the agent, Cohen received
sufficient notice of the proceedings. We discern no error in this
holding and affirm.
III.
Finding no error in the court’s analysis on either point, we
AFFIRM.

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