Federal Certification over State Disaster-Immunity Ambiguities:
Breaux v. Worrell and the Fifth Circuit’s Refined Approach to La. R.S. 29:735

Introduction

Breaux v. Worrell, No. 24-30097 (5th Cir. June 25, 2025), arises from a vehicular collision that occurred while out-of-state utility workers were helping Louisiana communities recover from Hurricane Ida. At its core, the dispute concerns whether the Louisiana Homeland Security and Emergency Assistance and Disaster Act of 1993 (La. R.S. 29:721 et seq.) confers immunity on:

• an out-of-state municipality (City of Wilson, North Carolina), and
• its employee-driver (Kevin Worrell)

for negligent acts committed while commuting between a hotel and the disaster-recovery worksite. Confronted with statutory phrases whose meanings have divided district courts—“representative,” “engaged in emergency preparedness,” and “result of such activity”—the Fifth Circuit declined to make an “Erie guess” and instead certified two dispositive questions to the Louisiana Supreme Court.

Summary of the Judgment

The panel (Higginbotham, Willett, and Ho, JJ.) unanimously:

1. Vacated the district court’s grant of summary judgment that had extended statutory immunity to the defendants.
2. Certified two narrow but outcome-determinative questions to the Louisiana Supreme Court:
   1. Whether an out-of-state municipal employee can be a “representative” of Louisiana or its political subdivision under La. R.S. 29:735.
   2. Whether commuting from a recovery site to lodging qualifies as “engaging in … emergency preparedness and recovery activities.”

Judge Ho added a concurrence to emphasize his skepticism that a North Carolina employee could ever be Louisiana’s “representative,” while conceding that state-court guidance is preferable.

Analysis

Precedents Cited and Their Influence

• Statutory Bedrock – La. R.S. 29:735: Provides immunity to the “state, any political subdivision … and, except in cases of willful misconduct, employees or representatives … engaged in … emergency preparedness and recovery activities.” The statutory text itself is the prime authority, yet its undefined terms create the present ambiguity.
• Benton v. State, 332 So.3d 82 (La. 2022) (unpublished): Held that an employee commuting to a disaster site under explicit instructions was “engaged in” emergency preparedness. This offers only partial guidance—Benton did not address return travel nor out-of-state personnel.
• Rabee v. La. Dep’t of Public Safety & Corr., 378 So.3d 71 (La. App. 5 Cir. 2023): Recognized broad immunity for departmental drivers during hurricane response, but again concerned in-state public employees.
• Federal district-court splits:
  • Banks v. City of New Orleans, 628 F. Supp. 2d 686 (E.D. La. 2009) – Restricted “representative” to actors under Louisiana’s “operational control.”
  • Robin v. United States, 2006 WL 2038169 (E.D. La. 2006) – Treated federal contractors working “at the behest of” Louisiana as representatives.
  • Lumpkin v. Lanfair, 2010 WL 3825427 (E.D. La. 2010) – Broadened coverage, reading “representative” functionally.
  The inconsistency among these cases heightened the “closeness” of the questions and strengthened the rationale for certification.
• Erie Doctrine Lineage – e.g., In re Katrina Canal Breaches Litig., 495 F.3d 191 (5th Cir. 2007); American Int’l Specialty Lines v. Canal Indem., 352 F.3d 254 (5th Cir. 2003). These cases direct federal courts sitting in diversity to divine state law but underscore the propriety of certification when statutory gaps are material and doctrinally unsettled.

Legal Reasoning of the Panel

The panel engaged in a classical civilian-law interpretive hierarchy: (1) statutory text, (2) context and legislative purpose, (3) secondary sources and jurisprudence. Finding each step indeterminate, it considered the tripartite Sanders factors for certification:

1. “Closeness”: Undefined statutory terms with conflicting lower-court interpretations.
2. “Comity”: High state interest in post-disaster governance and uniform application of immunity.
3. “Practicality”: Minimal delay expected; clear framing of two discreet issues capable of helpful resolution.

Rather than risk an “Erie guess” susceptible to later repudiation, the court privileged state-court primacy. This approach respects Louisiana’s civil-law tradition where legislation is paramount and judicial gloss subordinate.

Potential Impact of the Judgment

• Immediate Litigation: The Louisiana Supreme Court’s forthcoming answers will resolve Breaux but also dictate outcomes in other Hurricane Ida negligence suits involving outside utility crews.
• Future Disaster Response: Clear definitions of “representative” and scope of “engaged in” activities will guide interstate mutual-aid agreements, insurers, and risk managers. A broad immunity ruling could encourage out-of-state entities to assist Louisiana; a narrow reading might lead to tighter contractual indemnity clauses.
• Certification Practice: The decision refines the Fifth Circuit’s certification rubric, emphasizing state-law ambiguities embedded in civil-law statutes as especially worthy of referral. Expect more certifications when Louisiana’s emergency statutes intersect with tort claims.
• Federal–State Judicial Dialogue: By inviting the state’s highest court to opine, the judgment reinforces cooperative federalism and reduces the likelihood of divergent interpretations between federal and state benches.

Complex Concepts Simplified

Erie Guess

A predictive exercise where a federal court, lacking controlling state authority, estimates how the state’s highest court would rule.

Certification

Procedure allowing a federal court to formally ask a state supreme court to decide unsettled questions of state law.

Civilian Methodology

Interpretive approach prominent in Louisiana, prioritizing statutory text (codes) over judicial precedent, opposite of common-law stare decisis.

Representative (in statutory context)

Typically someone acting on behalf of a governmental entity; the extent of that “behalf” is what Breaux places at issue (employee vs. independent, in-state vs. out-of-state).

Emergency Preparedness and Recovery Activities

Acts that mitigate, respond to, or recover from disasters. The open question: does it include commute time?

Conclusion

Breaux v. Worrell does not yet declare who is or is not immune under La. R.S. 29:735. Instead, it crystallizes two pivotal uncertainties and channels them to the Louisiana Supreme Court. The Fifth Circuit’s step respects Louisiana’s legislative supremacy, seeks uniformity on a statute integral to disaster management, and models judicious restraint. Depending on how Louisiana’s high court answers, the ruling may:

• Expand or confine tort immunity for interstate disaster responders,
• Shape contractual risk allocations in future mutual-aid compacting, and
• Serve as a template for federal courts confronting opaque civil-law enactments elsewhere.

Whatever the outcome, Breaux underscores that when federal courts confront murky state statutes bearing heavily on public policy, certification—rather than conjecture—provides the surest path to principled adjudication.