     Case: 16-30128      Document: 00513609760         Page: 1    Date Filed: 07/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                    No. 16-30128                                    FILED
                                  Summary Calendar                              July 26, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
BARRY O. MOSHER, Individually and on Behalf of the Estate of his
Deceased Wife, Priscilla Mosher,

                                                 Plaintiff – Appellant
v.

INDIANA INSURANCE COMPANY,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CV-842


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Barry Mosher appeals the district court’s entry of summary judgment for
Indiana Insurance Company. Indiana was the insurer of a defendant against
whom Mosher had received a default judgment. The district court held that
res judicata arising from a state-court action barred Mosher’s claims against




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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Indiana, and, in the alternative, the claims were meritless under Louisiana
law. We AFFIRM.


                  FACTUAL AND PROCEDURAL BACKGROUND
      In 2006, Barry and Priscilla Mosher filed a lawsuit in Louisiana state
court to recover for injuries sustained in a tractor-trailer accident.                 The
Moshers sued the driver of the tractor-trailer and his employer, Global-Link
Logistics L.L.C. Global-Link never appeared in the lawsuit and was dissolved
in October 2007. Four years after suit was filed, on June 2, 2010, the Moshers
obtained a default judgment against Global-Link for $2.4 million.
      On October 17, 2011, Barry Mosher, by then a widower, 1 filed an
amended petition for damages and a declaratory judgment in state court, in
which he added Indiana Insurance Company as a defendant. Indiana was
Global-Link’s liability insurer at the time of the accident. Mosher sought a
declaration that Indiana’s policy provided insurance coverage for the judgment
against Global-Link. Two months after filing the amended petition in state
court, Mosher initiated a lawsuit in federal court, claiming diversity
jurisdiction and seeking the same relief against Indiana. The district court
stayed the federal lawsuit until the state court lawsuit concluded.
      In state court, Indiana made exceptions to the amended petition based
on prescription/limitations and res judicata.              After the trial court denied
Indiana’s exceptions, Indiana filed a writ application with the Louisiana First
Circuit Court of Appeal. That court granted the writ and reversed the trial
court. The court held that Mosher’s claims against Indiana were prescribed
under Louisiana law because Mosher did not assert those claims within one


      1   In this October 2011 filing, Mosher said his wife had recently died.
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year of the entry of default judgment against Global-Link. The Louisiana First
Circuit denied Mosher’s application for rehearing, and the Louisiana Supreme
Court denied writs in May 2015.
      Mosher then moved to lift the stay in his federal court lawsuit. He
amended his complaint to add a contractual claim against Indiana for its
failure to pay the default judgment against Global-Link. The contractual claim
was based on a provision in the insurance policy that allows a judgment
creditor to proceed directly against Indiana to recover a judgment against the
insured, Global-Link.
      Both Indiana and Mosher moved for summary judgment. The district
court granted Indiana’s summary judgment motion and denied Mosher’s.
Mosher appealed.


                                    DISCUSSION
      We review a district court’s grant of summary judgment de novo. Pierce
v. Dep’t of the U.S. Air Force, 512 F.3d 184, 186 (5th Cir. 2007). “The court
shall grant summary judgment 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.” FED. R. CIV. P. 56(a). The substantive law of Louisiana applies
in this diversity case. See Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d
535, 538 (5th Cir. 2015). We “must give the state court judgment the same
preclusive effect as would be given that judgment under” Louisiana res
judicata 2 principles. See Hogue v. Royse City, 939 F.2d 1249, 1252 (5th Cir.
1991). Under Louisiana law, “a valid and final judgment is conclusive between


      2  We use “res judicata” because that is the term Louisiana courts use, and it
encompasses claim and issue preclusion. See Gabriel v. Lafourche Par. Water Dist., 112 So.
3d 281, 284–85 (La. Ct. App. 2013).
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the same parties . . . to the following extent: . . . [i]f the judgment is in favor of
the defendant, all causes of action existing at the time of final judgment arising
out of the transaction or occurrence that is the subject matter of the litigation
are extinguished and the judgment bars a subsequent action on those causes
of action.” LA. STAT. ANN. § 13:4231(2).
      Mosher first contends res judicata does not bar his contractual claim
because it was not fully ripe until a final judgment in the state court lawsuit
was entered. We disagree. After Mosher added Indiana to the state court
lawsuit, and Indiana then made exceptions to his petition, Mosher could have
brought his claim based on the policy provision allowing judgment creditors to
pursue Indiana directly. If “a party had the opportunity to raise a claim in the
first adjudication, but failed to do so,” res judicata bars the claim. Henkelmann
v. Whiskey Island Pres., LLC, 145 So. 3d 465, 470 (La. Ct. App. 2014) (emphasis
omitted).
      Next, Mosher contends the contractual claim did not arise out of the
same occurrence that was the subject matter of the previous litigation. To
make that determination, we must “examin[e] . . . the facts underlying the
event[s] in dispute.” Holly & Smith Architects, Inc. v. St. Helena Congregate
Facility, 872 So. 2d 1147, 1152 (La. Ct. App. 2004). We agree with the district
court that all of Mosher’s claims arise out of the same underlying facts: the
tractor-trailer accident, the default judgment against Global-Link, and the
insurance policy with Indiana. See Westerman v. State Farm Mut. Auto. Ins.
Co., 834 So. 2d 445, 448 (La. Ct. App. 2002). The district court correctly held
that res judicata applied to the contractual claim.
      Finally, Mosher argues that an exception to res judicata applies because
this case presents “exceptional circumstances.” LA. STAT. ANN. § 13:4232(A)(1).
“[E]xceptional circumstances are found in complex procedural situations, such
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as where a litigant did not have the opportunity to present his claim due to
some quirk in the system. . . . [or] in factual scenarios not anticipated by the
parties or decisions beyond the parties’ control.” Alpine Meadows, L.C. v.
Winkler, 154 So. 3d 747, 759 (La. Ct. App. 2014) (quotations and citation
omitted). Mosher has not shown that his failure to raise his contractual claim
in state court was due to procedural or factual complexities beyond his control.
      The district court properly entered summary judgment for Indiana
because Mosher’s claims in federal court are barred by Louisiana res judicata.
We do not reach the district court’s alternative holding that Mosher’s claims
failed on the merits.
      AFFIRMED.




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