An insurance company retained a consultant to provide services in connection with the defense of an insurance claim. The insurance company had previously retained the consultant on multiple occasions. Each time the consultant accepted a job, including in the case at bar, it routinely confirmed the engagement by letter to which it attached standard “Terms and Conditions” that included a forum selection clause providing for exclusive venue for litigation between the parties in Texas. When a dispute arose between the parties, the insurance company filed suit against the consultant in Louisiana. The consultant contested venue based on the forum selection clause. The insurance company argued that it never agreed to the consultant’s unilateral Terms and Conditions and, alternatively, that the forum selection clause was unenforceable in Louisiana as a per se violation of public policy.
The Supreme Court of Louisiana affirmed the trial court’s ruling that the Terms and Conditions were part of the agreement between the parties, even though the insurance company never signed an agreement with the consultant. Because the consultant had routinely attached the Terms and Conditions to all its engagement confirmation letters to the insurer in the past, because there was nothing indicating the insurer objected to the Terms and Conditions prior to this suit, and because the parties had followed the billing procedures in the Terms and Conditions, the parties’ course of conduct showed their “tacit agreement” to the Terms and Conditions and the exclusive forum selection clause included therein.
The court then resolved a Louisiana circuit court split regarding whether exclusive forum selection clauses were against Louisiana public policy and not enforceable. The court overruled the leading circuit court case and held exclusive forum selection clauses to be generally enforceable and not a per se violation of public policy in Louisiana.