Baker, et al v. Dearie

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
December 29, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 04-30915
____________
BOYD BAKER; SARAH BAKER; CAMERAS AMERICA LLC,
Plaintiffs-Appellants,
versus
HAROLD DEARIE, ET AL,
Defendants,
CANAL INDEMNITY CO.,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
USDC No. 2:03-CV-678-C
Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Boyd Baker, Sarah Baker, and Cameras America, L.L.C. (collectively, “Cameras”) appeal the

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district court’s summary judgment in favor of Canal Indemnity Company (“Canal”). Cameras argues
that the district court erred in holding that Canal had no duty to defend Cameras in two state lawsuits,
one in Louisiana and one in Texas.
At the time of the district court’s summary judgment, a Louisiana district court had held that
Canal had a duty to defend Cameras in the Louisiana litigation. A state appellate court affirmed that
holding before the parties submitted their briefs in this appeal. Subsequent to oral argument in this
appeal, the Louisiana Supreme Court denied Canal’s writ application seeking further review.
Canal conceded in its brief that the denial of its writ application by the Louisiana Supreme
Court would render the state court’s determination final. It also conceded that such a determination
would have a preclusive effect in this litigation. See Law Offices of Moore & Assocs. v. Aetna Ins.
Co., 902 F.2d 418, 420 (5th Cir. 1990) (“In [a] diversity case, state law determines the preclusive
effect of a prior state court judgment.” (internal quotation omitted)); LA. REV. STAT. 13:4231(3) (“A
judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action
between them, with respect to any issue actually litigated and determined if its determination was
essential to that judgment.”). We therefore reverse the judgment of the district court as to the
Louisiana litigation.
As to the Texas litigation, the district court awarded Canal summary judgment for multiple
reasons, including that the events described in the Texas petition could not be construed as
occurrences under the policy and that the policy’s work product exclusion is applicable. Cameras’s
brief does not address these holdings at all. Its contention that the district court’s judgment should
be reversed as to the Texas litigation is therefore waived for inadequate briefing. See FED. R. APP.
P. 28(a)(9)(A).

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For the foregoing reasons, we REVERSE the judgment of the district court as it relates to
the Louisiana litigation and REMAND to the district court for further proceedings consistent with
this opinion. We AFFIRM the judgment of the district court as it relates to the Texas litigation.

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