               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

              _______________________________________

                            No. 98-30780
              _______________________________________

VIRGINIA WOODFIELD, et al.,
                                                          Plaintiffs,

NATIONWIDE MUTUAL INSURANCE CO.,

                           Plaintiff-Third Party Defendant-Appellant,

versus

CHARLIE BOWMAN, et al.,
                                                          Defendants,

PLANET INSURANCE CO.,
                            Defendant-Third Party Plaintiff-Appellee.

         _________________________________________________

            Appeal from the United States District Court
                for the Eastern District of Louisiana

         _________________________________________________
                          October 19, 1999

Before JONES and WIENER, Circuit Judges, and LITTLE, Chief District
Judge*

WIENER, Circuit Judge:

     In this diversity case, arising from a multi-vehicle highway

accident,    Third-party     Defendant-Appellant   Nationwide   Mutual

Insurance Co. (“Nationwide”) appeals the judgment of the district

court holding it liable to Third-party Plaintiff-Appellee Planet


    *
      District Judge of the Western District of Louisiana, sitting
by designation.

                                    1
Insurance Co. (“Planet”), which had settled with parties who were

covered by the uninsured motorist (“UM”) provisions of policies

issued by Nationwide.     In this appeal, Nationwide challenges the

jury’s determination of liability and the quantum of the trial

court’s judgment, which exceeds the sum paid in settlement by

Planet.    We affirm.

                                     I.

                         Facts and Proceedings

     The pile-up that led to this lawsuit occurred on Interstate 10

in St. Tammany Parish, Louisiana.         Because of road construction,

Plaintiff Virginia Woodfield, driving in a van with her minor

daughter, Plaintiff Kimberly Woodfield (the “Woodfields”), merged

to the left lane and came to a complete stop. Several vehicles

back, Defendant Wilson Scott (“Scott”), an employee of Defendant

Lane Trucking (“Lane”), was driving a tractor trailer in the left

lane of the same highway, and was slowing down as he approached the

construction area when he was passed on his right by Defendant

Charlie Bowman (“Bowman”). Immediately after passing Scott, Bowman

zipped into the left lane, directly ahead of Scott, and was rear-

ended.     This caused Bowman to rear-end the vehicle ahead of him,

driven by Celine Nederveld (not a party to the lawsuit), and she in

turn rear-ended the Woodfields’ van.

     The    Woodfields   initially    sued   (1)   Bowman,   (2)   Bowman’s

insurer, Allstate Insurance Co. (“Allstate”), (3) Scott, (4) Lane,



                                     2
and (5) Lane’s Insurer, Planet.              The Woodfields amended their

complaint to add their uninsured motorist carrier, Nationwide, as

another defendant. The Woodfields subsequently settled with Bowman

and Allstate for $10,000 (the Allstate policy limit) and dismissed

them from the suit.       The Woodfields also settled with Scott, Lane,

and Planet for $400,000.           An integral part of that settlement

agreement is an assignment to Planet of the Woodfields’ right,

title, and interest in any and all claims against Nationwide in the

subject   litigation      for     the    injuries    sustained     by    Virginia

Woodfield.   In implementation of that assignment, Planet filed a

third-party complaint against Nationwide.

      By consent of the parties, the case was tried to a jury before

a   magistrate   judge.      In    the   liability    stage   of   the    Planet-

Nationwide portion of the litigation, the jury found Bowman 100% at

fault for the accident and exonerated Scott from any liability.                In

the damages stage, the jury found that the Woodfields had suffered

damages totalling $589,973.86.            As Bowman, the sole tortfeasor,

was insured only for $10,000, Nationwide was held liable under the

UM provision of the policies that it had issued to the Woodfields,

and a judgment was entered in favor of Planet, the Woodfields’

putative assignee, but was limited to the $400,000 that Planet had

paid the Woodfields in settlement.

      At the request of both parties, the magistrate judge vacated

that judgment and allowed additional arguments regarding offset,



                                         3
subrogation, contribution, and insurance coverage relative to the

quantum of the judgment.   The court again concluded that Planet

could not recover more than the $400,000 settlement amount and

allowed Nationwide a $48,870.44 offset,1 producing a net judgment

for Planet of $351,129.56 plus interest and costs.

     Both parties again filed post-trial motions: Planet sought to

recover the full $589,973.86 amount assessed by the jury, less any

offset; Nationwide requested a new trial and other relief.      No

longer limiting Planet’s recovery to the amount that it had paid

the Woodfields, the court reinstated the judgment in the amount

awarded by the jury but reduced it to $422,365.86 and deducted the

offset of $48,870.44, to produce a final judgment of $373,495.242

which Nationwide now appeals.

                                II.

                             Analysis

A.   Standards of Review

     Questions of law such as the interpretation of a statute or a

contract, legal conclusions of the district court, and choice of




         1
          The following amounts were offset:        $10,000.00 for
Allstate’s settlement payment to the Woodfields, $28,433.06 for
Nationwide’s payments for medical bills, $1,437.38 for Nationwide’s
payments for property damage, and $9,000.00 for Nationwide’s
settlement payment to Kimberly and John Woodfield.
     2
      The magistrate judge granted Nationwide’s motion to alter or
amend the judgment only in respect to the date used in calculating
legal interest.

                                 4
law are subject to de novo review.3              Findings of fact are reviewed

for clear error.4       The decision to grant or deny a motion for a new

trial       will   be   disturbed   only      for   abuse    of    discretion    or

misapprehension of the law.5

B.   Issues

     Nationwide first argues that the court erred in concluding

that the Woodfields validly assigned Planet their rights against

Nationwide.        Second, Nationwide asserts that the Woodfields waived

their right to recover under the UM provisions of the policies by

failing to obtain Nationwide’s consent to settle.                 Nationwide then

argues that, in the event we should determine that the assignment

was valid and that coverage was not waived, we should apply

Louisiana law, which prohibits “stacking” of UM policy limits, and

cap Nationwide’s liability at $100,000, the limit of one policy.

Alternatively, Nationwide would have us subtract $22,365.86 from

Planet’s judgment,         that   being    the    amount    by   which   the   final

judgment against Nationwide (before offset) exceeds the $400,000

that Planet paid in settlement.               Finally, Nationwide argues that

the jury clearly erred in finding Bowman 100% liable and seeks

reversal of the verdict or a new trial on liability.

        3
       E.g., Pearlman v. Pioneer Ltd. Partnership, 918 F.2d 1244
(5th Cir. 1990).
        4
            See, e.g., Bolding v. C.I.R., 117 F.3d 270, 273 (5th Cir.
1997).
        5
       Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 252
(5th Cir. 1990).

                                          5
       Planet counters by insisting, first, that under controlling

law,       the   Woodfields’         assignment        was    valid   and,   second,     that

Nationwide waived its right to insist on its consent as a condition

to settlement, both by failing to raise the defense in a timely

manner and by denying UM coverage.                      With respect to the amount of

the judgment, Planet argues that Mississippi law, which permits

stacking, should govern interpretation and application of the terms

of the policy.              Planet also argues that the jury verdict, and not

the settlement amount, was the proper measure of damages because,

under Louisiana law, the purchaser of litigious rights, who is a

conventional —— as opposed to an equitable —— subrogee, is entitled

to all rights of the original obligee.6                      Finally, Planet asks us to

affirm       the    jury         verdict   and        the    lower    court’s   denial     of

Nationwide’s motion for a new trial.

C.   Assignment of Rights in the Lawsuit

       First, we conclude that the Woodfields’ assignment of rights

to   Planet        is       a   valid   sale     of    litigious      rights,   i.e.,     the

plaintiff’s rights in a filed lawsuit, and that the assignment

incorporates            a       conventional      subrogation.            The   issue      of



       6
      See La. Civ. Code art. 1827, cmt. (d) (expressly overruling
cases which limited the subrogee’s recovery to the amount he
actually paid the obligee); id. art. 2652 (establishing that
litigious rights may be assigned and that assignee steps into shoes
of assignor as to all rights, including right to recover more than
amount paid for the litigious rights unless the obligor timely
offers to acquire these rights from the assignee for the price paid
and ceases to contest or defend against the claim).

                                                 6
assignability of these rights is governed by Louisiana law7 which

provides that litigious rights are rights in an already-filed

personal injury suit and are “real” rights, not “strictly personal”

                                                                rights,8

heritable    and   freely   assignable.9   In   the   instant   case,   the

Woodfields assigned Planet their rights to recover in a lawsuit

already pending against Nationwide; they did not purport to assign

their UM coverage as such.       Thus, the assignment was valid under

the scheme of Louisiana’s Civil Code, and Planet stepped into the

shoes of the Woodfields for the purposes of this lawsuit.10              In

addition, the Woodfields accomplished the assignment to Planet

through express language in a written settlement agreement as part



         7
        In diversity cases, federal courts apply the law of the
forum state, here, Louisiana. See Erie R.R. Co. v. Tompkins, 304
U.S. 64 (1938); Klaxton Co. v. Stentor Elec. Manuf. Co., 313 U.S.
487 (1941).
     8
       La. Civ. Code art. 2642 & cmts. (providing that all rights
are assignable except those which are strictly personal).
     9
       See La. Civ. Code art. 2652 (“Sale of litigious rights”).
Article 2652 specifically provides: “When a litigious right is
assigned, the debtor may extinguish his obligation by paying to the
assignee the price the assignee paid for the assignment....” The
article affirms the Louisiana litigious rights doctrine under which
such rights are freely heritable and assignable. See also Nathan
v. Touro Infirmary, 512 So.2d 352, 354-55 (La. 1987) (holding that
Louisiana legislatively overruled common law rule that tort action
abates on death of victim); Guirdy v. Theriot, 377 So.2d 319, 323-
24 (La. 1979) (noting “significant difference between inheriting an
instituted action and inheriting the right to institute an
action”).
    10
       Rather than formally moving to be substituted as the Party-
Plaintiff, Planet filed a third-party complaint again Nationwide.

                                     7
of the consideration for the $400,000 paid by Planet; therefore,

the   type    of    subrogation     that          resulted   is    conventional       (or

contractual) rather than legal (or equitable).11

      Nationwide asks us to follow the Louisiana Court of Appeal’s

holding in Constans v. Choctaw Transport, Inc.12 to the effect that

conventional       subrogation     of    a       personal    injury     claim    is   not

permitted.13        We   decline   this      invitation.           We   have    recently

confirmed     our    recognition        of       the   Louisiana    Supreme      Court’s

distinction between a personal injury claim that is the subject of

an extant lawsuit, which is heritable and assignable, and a claim

that is merely an inchoate personal injury cause of action that has

not yet been sued on, which is strictly personal and not heritable

or assignable.14         As Constans conflicts with our precedent, we

      11
         See La. Civ. Code art. 1827 (providing that conventional
subrogation is subject to the rules governing assignment of
rights).    “‘Conventional’ subrogation occurs when an obligee
receives performance from a third person and in express terms
subrogates that person to the rights of the obligee, even without
the obligor’s consent.      ‘Legal’ subrogation takes place by
operation of law in favor of an obligor who pays a debt he owes
with others and who has recourse against those others as a result
of the payment. Wilhite v. Schendle, 92 F.3d 372, 376 (5th Cir.
1996) (citations omitted) (construing Louisiana law).
      12
        712 So.2d 885 (La. App. 1997), writ denied, 716 So.2d 892
(La. 1998) (allowing contribution under legal subrogation theory).
      13
           Id. at 895.
      14
       In re Pembo, 32 F.3d 566 (unpublished table decision), No.
94-30036, slip op. at 4 (5th Cir. July 28, 1994) (according to 5th
Cir. Rule 47.5.3, “[u]npublished opinions issued before January 1,
1996, are precedent”); see also Parich v. State Farm Mutual Auto.
Ins. Co., 919 F.2d 906, 917 & n.3 (5th Cir. 1990) (applying
Louisiana law on assignment of rights but finding assignment

                                             8
decline to follow it.15   And, as Louisiana law is clear that the

express assignment of a cause of action for which suit has been

instituted is valid, we do not need to reach Planet’s alternative

recovery theories of legal subrogation and unjust enrichment.

     Nationwide next argues that under the terms of the UM policies

themselves the assignment was invalid because the Woodfields failed

to obtain the insurer’s consent to settle.   We hold, however, that

Nationwide waived its right to assert this affirmative defense

under the consent-to-settle clause of the insurance policy by



invalid as suit had not been filed).
     15
        As often noted, we are a strict stare decisis court: One
panel of this court cannot disregard, much less overrule, the
decision of a prior panel, even on decisions involving
interpretation of state law. Only supervening contrary decisions
of the state’s highest court or the supervening enactment of a
controlling statute will render our decisions clearly wrong and
thus no longer precedential. FDIC v. Abraham, 137 F.3d 264, 267-68
(5th Cir. 1998).    Therefore, we will not ignore our own prior
decisions to apply the rule of Constans which, after all, was
decided by one of five intermediate Louisiana appellate courts
only, particularly in the face of two state supreme court decisions
contra. We emphasize the narrowness of our holding in this case:
We do not establish a general rule that conventional subrogation
results from every sale of litigious rights. In this case, the
deliberate wording of the Woodfield-Planet settlement agreement,
specifying that the objects of the assignment are the assignors’
right, title, and interest in the lawsuit makes clear that the
subrogation is conventional; in the absence of a specific
settlement contract or assignment instrument, however, the sale of
a litigious right would still result in subrogation —— albeit
possibly legal rather than conventional —— of the purchaser to the
rights of the seller,.    Any conclusion we might reach on that
question would be dicta. In the context of the Louisiana concept
of litigious rights, what is crucial is not the label applied to
the type of subrogation but the fact that the assignment is of an
interest in an existing lawsuit, as distinguished from an inchoate
right to sue.

                                9
failing to plead it adequately.

      As a preliminary matter, we note that under the choice of law

provisions of Louisiana, the forum state,16 issues concerning the

terms of an insurance policy are governed by Mississippi law.                The

Louisiana Civil Code’s generally applicable choice of law article

specifies that “an issue in a case having contacts with other

states is governed by the law of the state whose policies would be

most seriously impaired if its law were not applied to the case.”17

Specifically regarding contracts, the Code instructs courts to

assess the strength of the relevant policies of the involved states

in light of the place of negotiation, formation, and performance of

the   contract    as   well   as   the   location   of   the   object   of   the

contract.18    Applying these principles, Louisiana courts generally

choose the law of the state in which the insurance policy in

question was issued to govern the interpretation of the terms of

the policy.19     In the instant case, these principles lead us to

conclude that Mississippi law governs the policy terms.

      The     Woodfields’     Nationwide      policies     were   issued      in



      16
        Federal courts apply the choice of law provisions of the
forum state, here, Louisiana. Duhon v. Union Pac. Resources Co.,
43 F.3d 1011, 1013 (5th Cir. 1995).
      17
           La. Civ. Code art. 3515.
      18
           Id. art. 3537.
      19
       Anderson v. Oliver, 705 So.2d 301, 305-06 (La. App. 1998)
(relying on Louisiana Civil Code choice of law articles); Holcomb
v. Universal Ins. Co., 640 So.2d 718, 722 (La. App. 1998).

                                         10
Mississippi,        to      Mississippi       residents,         covering    vehicles

principally garaged in Mississippi.               In contrast, the only contact

between the Nationwide policies and Louisiana is the situs of the

accident on a highway in Louisiana.                      Mississippi has a more

substantial interest in uniform application of its laws governing

insurance contracts than Louisiana has in providing an insurance

remedy to an out-of-state resident who happens to sustain injury

while        transitorily     within    the      state’s    borders.        Nationwide

nevertheless contends that the Louisiana Insurance Code establishes

a presumption that courts should apply Louisiana law to matters

concerning UM policies.20 In Anderson v. Oliver,21 however, the only

Louisiana       appellate     court    to     consider     the    precise    question

specifically disapproved of the suggestion that the UM statute

includes a choice of law presumption, even though that court would

have reached the same result, applying Louisiana law under the

traditional “interest analysis” codified in the above-referenced

conflict of laws statutes.22            Therefore, under the choice of law

provisions of the forum state of Louisiana, we apply Mississippi

law to interpret the terms of the UM policies at issue.

     We begin our substantive analysis by observing that the

parties do not dispute that (1) consent-to-settle provisions are


        20
             See Trautman v. Poor, 685 So.2d 516, 521 (La. App. 1996).
     21
             705 So.2d 301 (La. App. 1998).
     22
             Id. at 305.

                                            11
enforceable under Mississippi law,23 (2) the Nationwide policies at

issue contain such clauses, requiring the insured to obtain written

consent of the insurer to settle any action brought against a

potentially liable party, or (3) the Woodfields failed to obtain

Nationwide’s consent to settle with Planet, Allstate, and their

respective insureds.     Planet nevertheless contends, first, that

Nationwide waived the right to assert its consent-to-settle defense

by failing to plead it; and, second, that Nationwide is estopped

from asserting this defense by its denial of coverage.   As we agree

that Nationwide failed to plead this defense and thus waived it, we

do not reach the res nova Mississippi law question whether an

insurer that denies coverage is estopped to assert its rights under

the policy clause requiring the insured to obtain the insurer’s

consent to settle. We thus avoid “the always-dangerous undertaking

of predicting what [Mississippi] courts would hold if the issue

were presented squarely to them.”24

     Nationwide asserts that it did plead the consent-to-settle

affirmative defense. It points to its “Fourth Defense” to Planet’s

third-party complaint:    “The claims, demands and causes of action

asserted by Wilson Scott, Lane Trucking Company, Inc. and Planet

Insurance Company are barred, or alternatively, reduced, by the

    23
       See, e.g., St. Paul Property & Liab. Ins. Co. v. Nance, 577
So.2d 1238, 1242 (Miss. 1991); United States Fidelity & Guar. Co.
v. Hillman, 367 So.2d 914, 921 (Miss. 1979).
    24
      Stephens v. State Farm Mutual Auto. Ins. Co., 508 F.2d 1363,
1366 (5th Cir. 1975).

                                 12
doctrines of accord and satisfaction, transaction and compromise,

waiver and/or release.”              The district court, in its May 6, 1998

Order and Reasons in response to the parties’ cross-motions to

vacate        the    judgment,   held      that   such   “boilerplate”     defensive

pleading is insufficient under Federal Rule of Civil Procedure 8(c)

to apprise Planet of Nationwide’s affirmative defense under the

specific consent-to-settle provision of the insurance policy, and

thus Nationwide waived the defense.                We agree.

     An insured’s failure to obtain the insurer’s consent to settle

is an affirmative defense under Mississippi law.25                       The Federal

Rules require an affirmative defense to be pleaded; failure to

plead such a defense constitutes waiver.26                An affirmative defense

is subject to the same pleading requirements as is the complaint.27

Even though the aim of the relaxed notice pleading standards of

Federal Rule of Civil Procedure 8 is to prevent parties from being

defaulted           for   committing       technical     errors,28   a     defendant

nevertheless          must   plead    an    affirmative    defense   with     enough



    25
      See, e.g., Hillman, 367 So.2d at 916 (noting that any action
by insured that prejudices subrogation rights of insurer is an
affirmative defense which must be pleaded).
    26
       Trinity Carton Co. v. Falstaff Brewing Corp., 767 F.2d 184,
194 (5th Cir. 1985).
         27
        See Fed. R. Civ. P. 8(e) (requiring all pleadings to be
“simple, concise, and direct”).
         28
        Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.
1987) (noting that technical failure to comply with rule 8(c) is
not fatal).

                                             13
specificity or factual particularity to give the plaintiff “fair

notice” of the defense that is being advanced.29           We acknowledge

that in some cases, merely pleading the name of the affirmative

defense —— as Nationwide contends it did —— may be sufficient.30

In the instant case, however, Nationwide’s baldly “naming” the

broad affirmative defenses of “accord and satisfaction” and “waiver

and/or release” falls well short of the minimum particulars needed

to identify the affirmative defense in question and thus notify

Planet    of   Nationwide’s   intention   to   rely   on   the   specific,

contractual defense of requiring the Woodfields to obtain the

insurer’s consent before settling with Planet.

     The “fair notice” pleading requirement is met if the defendant

“sufficiently articulated the defense so that the plaintiff was not

a victim of unfair surprise.”31     In prior cases, we have employed

a fact-specific analysis in deciding whether the plaintiff was

    29
       “Although absolute specificity in pleading is not required,
fair notice of the affirmative defense is.” Automated Med. Labs.
v. Armour Pharm. Co., 629 F.2d 1118, 1122 (5th Cir. 1980) (citing
Rule 8(c)); see also Ingraham, 808 F.2d at 1079 (“A defendant
should not be permitted to ‘lie behind a log’ and ambush a
plaintiff with an unexpected defense.”).
    30
       American Motorists Ins. Co. v. Napoli, 166 F.2d 24, 26 (5th
Cir. 1948) (holding, in negligence action arising from car
collision, that pleading “contributory negligence” without
extensive factual allegations is sufficient); cf. Home Ins. Co. v.
Matthews, 998 F.2d 305, 309 (5th Cir. 1993) (noting that improper
labeling of defense was not prejudice where defensive pleading set
out detailed facts and where state law itself was unclear on
distinction between “waiver” and “estoppel”).
     31
       Matthews, 998 F.2d at 309 (citing Bull’s Corner Restaurant
v. Director, FEMA, 759 F.2d 500, 502 (5th Cir. 1985)).

                                   14
unfairly surprised.32      For example, in Trinity Carton Corp. v.

Falstaff Brewing Corp.,33 we held that the defendant waived his

defenses of failure of consideration and failure to agree on all

essential terms by not raising them until several months after the

jury’s verdict.    Finding no justification for the delay in raising

the defenses, we noted that “[the defendant] necessarily was put on

notice by the very nature of the suit that these matters of

affirmative defense would be relevant to, if not potentially

controlling of, the determination of liability.”34

     Likewise, we discern no justification here for Nationwide’s

having waited until after the trial to inject into the dispute its

rights under the explicit contractual provision requiring the

insured to     obtain   consent   to   settle.   Nationwide,   itself   an

insurance company, was put on notice of the potential need to

assert its consent-to-settle defense by the very nature of the


     32
       See, e.g., Ingraham, 808 F.2d at 1079 (noting that failure
to plead statutory limit on medical malpractice liability
prejudiced plaintiffs who would have offered additional proof of
damages or pleaded other theories of recovery with more vigor had
they know of the defense); Marine Overseas Servs., Inc. v.
Crossecean Shipping Co., 791 F.2d 1227, 1233 (5th Cir. 1986)
(noting that although defense of agency relationship was not
pleaded, parties were well aware it was an issue); Bull’s Corner
Restaurant, 759 F.2d at 502 (finding statutory exclusion adequately
pleaded where facts recited in complaint related to the exclusion
even if it was not mentioned by name); Automated Med. Labs., 629
F.2d at 1122 (holding that pleading statute of frauds for first
time in one sentence of pre-trial memorandum was inadequate).
     33
          767 F.2d 184 (5th Cir. 1985).
     34
          Id. at 194.

                                       15
instant third-party complaint, which arose only because of a

settlement     agreement   between    another    insurer     (Planet)     and

Nationwide’s own insureds (the Woodfields). Nationwide had already

been added to the suit as a defendant by the time of the Planet-

Woodfield settlement and the filing of Planet’s subsequent third-

party complaint.

       In addition, Nationwide’s post-trial, post-hoc suggestion that

the consent to settle provision was “exactly” what it meant by

pleading the “Fourth Defense” rings hollow, to say the least.             Not

until after the June 1996 trial, during a second round of post-

trial pleadings, did Nationwide advance such a connection.              True,

Nationwide had mentioned the consent-to-settle clause of the policy

during the first round of post-trial motions, in which both parties

requested reconsideration of the amount of the judgment in light of

offset, subrogation, indemnity, and contribution issues.          But even

though Nationwide relied on the consent-to-settle clause in that

memorandum to the court on those specific issues, at no time did it

imply, much less assert, that it had previously pleaded it as an

affirmative defense; neither did it mention the “Fourth Defense” at

that   time.    In   ruling   on   those   motions,   the   district    court

correctly observed that “this issue had not been raised for the

first time until the current memoranda were filed with the court.

The issue does not appear well framed in the pre-trial order and it

would seem that such an issue should be framed as an affirmative



                                     16
defense in Nationwide’s answer, which, in fact, it was not.”

      After entry of that order, Nationwide again requested post-

judgment relief. Faced with the magistrate judge’s conclusion that

it had not pleaded the affirmative defense, Nationwide proffered

the   general,   non-contractual    “Fourth    Defense”    to   support   its

assertion of having adequately pleaded the specific, contractually

based consent-to-settle defense.         We cannot credit such a re-

characterization to reverse the jury’s determination of liability.35

Accordingly, we affirm the district court’s ruling that by failing

to plead it, Nationwide waived the right to assert a defense under

the   consent-to-settle    clause   of   the   policies,    and   that    the

Woodfields validly settled and assigned their litigious rights

against Nationwide to Planet.




D.    Quantum of Damages

      We now address Nationwide’s concern with the amount of the

judgment rendered against it.       First, Nationwide contends that we

should apply Louisiana law (which does not permit stacking) and cap

its liability at $100,000, the limit of UM coverage under one

      35
       “A busy district court need not allow itself to be imposed
upon by the presentation of theories seriatim.”         Freeman v.
Continental Gin Co., 381 F.2d 459, 469 (5th Cir. 1967) (disallowing
untimely amended pleading); see also Union Planters Nat’l Leasing
Inc., 687 F.2d 117, 121 (5th Cir. 1982) (denying request to amend
answer and noting that “concerns of finality in litigation become
more compelling [when] the litigant has had the benefit of a day in
court”).

                                    17
policy.36     Planet counters that the district court was correct in

applying Mississippi law, under which “stacking” of policies is

allowed.     Second, Nationwide argues under Constans that, as Planet

is a subrogee to the rights of the Woodfields, it cannot recover

more than the amount of the settlement, or $400,000.               Planet

counters by asking us to uphold the full amount of the judgment

even though, as adjusted by the court, it exceeds the settlement

amount by $22,365.86.     We affirm the district court’s decision on

both points.

      We have already determined that under Louisiana’s choice of

law   statutes,    Mississippi   law,    not   Louisiana’s,   governs   the

interpretation and application of policy terms.37 In a case decided

after the magistrate judge comprehensively addressed the stacking

question in the instant lawsuit, the Mississippi Supreme Court

explicitly held that courts may stack the UM limits of separate

policies, irrespective of the number and amount of premiums paid

for the policies.38 Nationwide issued two policies with UM coverage

to the Woodfields, one policy covering four vehicles and another


       36
         See La. Rev. Stat. § 22:1406(D)(1)(c)(i) (anti-stacking
statute).
      37
           La. Civ. Code arts. 3515, 3537.
      38
        United States Fidelity & Guar. Co. v. Ferguson, 698 So.2d
77, 79 (Miss. 1997) (“We now affirmatively declare that the public
policy of this State mandates stacking of UM coverage for every
vehicle covered under a policy....”). Ferguson was decided July
31, 1997. The magistrate court issued its order regarding stacking
on December 20, 1996.

                                    18
covering a fifth.           When stacked, the aggregate UM limit for all

five        vehicles   is   $500,000,   well   above   the   final   judgment

($422,365.86 gross; $351,129.56 net). As we conclude that there is

no merit in Nationwide’s argument against applying Mississippi law,

there is no basis for capping the damages at $100,000, the UM limit

of one policy.

       In addition, we are satisfied that the district court did not

err in entering a judgment for an amount, prior to offset, higher

than the $400,000 settlement price that the Woodfields received

from Planet in consideration for assigning Planet their rights in

the lawsuit against Nationwide.              Under the Louisiana law that

governs the sale of litigious rights and conventional subrogation,

the assignee/subrogee (Planet) may recover the full amount of the

debt, even if it is greater than the amount paid to the original

obligee (the Woodfields) unless the obligor timely acknowledges the

debt and requests to purchase those rights from the assignee for

the same price.39        Nationwide did neither here.

       A review of the salient facts confirms that Nationwide is not

entitled to limit Planet’s judgment to the amount paid for the

assignment:        The jury returned a verdict of $589,973.86, and the

court rendered a judgment in that amount; at the request of both


       39
       See La. Civ. Code art. 2652 (allowing debtor to extinguish
obligation by “redeeming” the lawsuit for the same amount the
assignee paid for it); Clement v. Sneed Bros., 116 So.2d 269 (La.
1959) (discussing exceptions to debtor’s right to redeem if debtor
is untimely in its request or continues to defend the suit).

                                        19
parties, the court reconsidered the judgment and capped it at

$400,000, the amount of the settlement, then subtracted an offset

to Nationwide; the parties again sought modification, with        Planet

repeating its objection to the amount of the judgment and moving to

reinstate the jury award; the court granted Planet’s motion but

reduced the judgment, first, by deducting the $50,000 awarded to

Mr. Woodfield for loss of consortium and, second, by deducting the

$117,608 awarded to Mrs. Woodfield for lost wages.        The adjusted

amount,    prior   to   offset,   was    $422,365.86.   The   offset   to

Nationwide, which is not disputed, was $48,870.44,40 resulting in

a net judgment of $373,495.24.      The magistrate judge reasoned that

as the amount of the judgment, after remittitur and offset, was

below the $400,000 settlement amount, no further adjustment was

required.     Nationwide argues, however, that the starting point,

before offset, should be $400,000 and asks us to reduce the

judgment by $22,365.86. Importantly, Nationwide never attempted to

redeem the litigious right from Planet and never ceased defending

against the UM claim.     Under these conditions, the law affords the

obligor no “cap.” We affirm the magistrate judge’s final ruling on

the amount of the judgment, albeit for different reasons.

     We have already decided that in regards to the Woodfields’

assignment of rights to Planet under the settlement agreement, (1)

assignment-related issues are governed by the law of the forum


     40
          See supra note 1 (itemizing offset).

                                    20
state (Louisiana), and (2) the comprehensive settlement agreement

includes a valid assignment of the Woodfields’ rights in the

existing     lawsuit    and     a    conventional      subrogation   to    Planet.

Therefore, under Louisiana Civil Code article 1827 (“Conventional

subrogation by obligee”), the district court was not prohibited

from rendering a judgment in an amount greater than the gross

settlement amount.          Revision comment (d) to article 1827 specifies

that under conventional subrogation, the subrogee “is entitled to

recover the full amount of the debt from the obligor.”41                         In

contrast, Louisiana law limits recovery under legal subrogation and

unjust enrichment —— theories of recovery we do not reach in this

appeal —— to the amount actually paid.42

      The correctness of this result is buttressed by the Louisiana

doctrine of sale of litigious rights:43 When, in a pending lawsuit,

the original plaintiff transfers his position to another for a

specific sum of money, a defendant (such as Nationwide) has a right

either     (1)   to   pay    the    transferee   the    same   amount     that   the

transferee paid the obligee, thus extinguishing all claims and

cutting any future losses, or (2) to continue to defend the action

and   gamble     on   doing    better    (or   risk    doing   worse)     than   the

      41
           La. Civ. Code art. 1827, cmt. d.
      42
       Id. arts. 1830, 2298. And, as noted above, under article
2652, recovery is likewise limited but only if the obligor timely
acknowledges the obligations and offers to purchase the litigious
right for the same price as the assignee paid for it.
      43
           Id. art. 2652.

                                         21
transferee’s valuation of the suit. Here, Nationwide continued to

defend and took the gamble of incurring a judgment in excess of

$400,000 —— and lost.       We agree with the district court’s ultimate

refusal to limit Planet’s recovery to the settlement amount.

      Nationwide nevertheless asks us to rely on Constans,44 this

time for the proposition that a subrogee is “limited to the lesser

of the amount paid in settlement or the virile portion of what is

determined actually to be owed.”45            We again decline to follow

Constans, not because its holding on this issue conflicts with our

own precedent but because the quoted language, read in context,

refers to legal, not conventional subrogation.            Accordingly, while

that portion of Constans is a correct statement of the law in

general, its holding is inapplicable to the instant situation. The

final judgment, after offset, of $373,495.24, is affirmed.

E.   Jury Verdict and New Trial

      Finally, Nationwide contends that the jury committed clear

error      in   finding   Bowman   100%    liable   for   the   accident   and

exonerating Planet’s insureds, Scott and Lane.            Nationwide asks us

to reverse the jury verdict on liability.           We decline to encroach

on the province of the jury as finder of fact in the absence of

clear error or some indication that reasonable jurors could not



     44
           Constans v. Choctaw Transport, Inc., 712 So.2d 885 (La. App.
1997).
      45
           Id. at 895.

                                      22
possibly have arrived at the verdict.46       Both parties presented

ample evidence, and we do not find reversible error in the jury’s

determination.

     On the same basis, Nationwide moved for a new trial which the

district court denied.   We are convinced that the court did not

abuse its discretion in denying that motion and, accordingly,

affirm.

                                 III.

                              Conclusion

     As should now be apparent from the foregoing analysis, we

conclude that the district court correctly entered judgment against

Nationwide based on the jury’s determination of liability under the

UM insurance provisions of the policies.         The district court

correctly held that the Woodfields validly assigned Planet their

litigious rights against Nationwide as an element of the settlement

of all litigation between the Woodfields and Planet. Under the law

of the forum state (Louisiana), rights in an already-filed suit are

freely heritable and thus assignable.      Furthermore, we decline to

find the assignment invalid for the Woodfields’ failure to obtain

the consent of their UM insurer, Nationwide, to settle the claim:

Nationwide failed adequately to plead that specific, contract-based

defense and thus waived it.


    46
       See Granberry v. O’Barr, 866 F.2d 112, 113 (5th Cir. 1988);
see also Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th
Cir. 1978).

                                  23
     We also affirm the district court’s entry of judgment in the

net amount of $373,495.24.        We decline Nationwide’s invitation to

cap the gross amount of the judgment at $100,000, the limit of one

UM policy, by applying Louisiana’s anti-stacking law.                 Instead, we

hold that   under   the   forum    state’s     choice    of     law   provisions,

Mississippi law governs the interpretation of an insurance policy’s

terms and that Mississippi law specifically allows stacking of UM

policy limits.   We also reject Nationwide’s argument that Planet’s

recovery is limited to the $400,000 it paid the Woodfields in the

settlement. Applying Louisiana law on sale of litigious rights and

assignment, we hold that Planet, as the Woodfields’ conventional

assignee and subrogee, is entitled to recover the full amount of

the final judgment.   We find no error in the district court’s entry

of a gross judgment higher than the $400,000 settlement amount.

     Finally, we hold that the jury did not commit reversible error

in finding the uninsured —— or underinsured —— motorist 100%

liable, and that the district court did not abuse its discretion in

denying   Nationwide’s    motion     for   a    new     trial    on   liability.

Therefore, the district court’s orders and judgments from which

Nationwide appeals are, in all respects,

AFFIRMED.




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