Black Crystal Co Inc v. Assuranceforeningen

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-30098
BLACK CRYSTAL COMPANY INC.
Plaintiff-Appellant,
VERSUS
ASSURANCEFORENINGEN SKULD,
a Norwegian insurance association
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
00-CV-3479-T
January 8, 2003
Before KING, Chief Judge, and DeMOSS and CLEMENT Circuit Judges.
PER CURIAM:*
BACKGROUND
In July of 1981, the Plaintiff/Appellant, Black Crystal
Company ("Black Crystal"), chartered a vessel that was owned by
*
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that this opinion should not be published and is not precedent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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Polykyn Navigation Corporation ("Polykyn") and Landaf Shipping
Limited ("Landaf"). Numerous disputes arose out of the charter
contract, and eventually Black Crystal sued Polykyn and Landaf in
the United States District Court for the Western District of
Kentucky (the "Kentucky suit"). A default judgment was entered
against Landaf and Polykyn and in favor of Black Crystal in the
Kentucky suit on June 6, 1986. That judgment was in the amount of
$11,312,416.22 plus interest from the date of judgment.1
On October 6, 2000, the Civil District Court for the Parish of
Orleans entered a default judgment (the "Orleans judgment") in
favor of Black Crystal and against Landaf and Polykyn. The Court
in the Orleans judgment ordered that the judgment in the Kentucky
suit “be entitled to full faith and credit in Louisiana and made
executory in Louisiana pursuant to the provisions of the Uniform
Enforcement of Foreign Judgments Act found in the Louisiana Revised
Statutes at 13:4241, et seq.”
On November 22, 2000, Black Crystal filed the instant suit
against the defendant/appellee Assuranceforeningen Skuld (“Skuld”)
alleging that Skuld is the insurer of Landaf and Polykyn and is
therefore liable to Black Crystal based on the revived judgments
entered against Landaf and Polykyn. Black Crystal alleged that the
Louisiana Direct Action Statute, which permits suits by an injured
party directly against the insurer of the tortfeasor, is applicable
1
In 1995, a Greek court recognized the Kentucky judgment
but that Greek court’s decision has no affect on this case.
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in the matter and gives the district court jurisdiction over the
defendant.
On July 26, 2001, Skuld filed a Motion to Dismiss based on
Louisiana prescription. The Motion was granted by the district
court on December 12, 2001, and a judgment dismissing Black
Crystal’s claims with prejudice was entered on December 13, 2001.
Black Crystal now appeals claiming the district court erred in
granting the motion to dismiss and in not affording Black Crystal
an opportunity to amend its pleading.
DISCUSSION
I. Whether the district court erred in granting Skuld’s motion to
dismiss.
The grant of a motion to dismiss is reviewed de novo. St.
Paul Mercury Ins. Co. V. Williamson, 224 F.3d 425, 440 n.8 (5th
Cir. 2000).
Although Skuld was not named in the Kentucky suit or the
Orleans judgment, Black Crystal filed suit against Skuld in the
Eastern District of Louisiana 14 years after the conclusion of the
Kentucky suit in order to enforce the judgment. Black Crystal
alleges that the Louisiana Direct Action Statute, La. Rev. Stat.
§22:655, allows recovery against Skuld in this suit. The Direct
Action Statute allows an injured party, under certain
circumstances, to file suit directly against the insurer of an
alleged tortfeasor. La. Rev. Stat. §22:655.
Black Crystal’s claim has no merit for two alternate reasons.
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First, the Direct Action Statute does not apply to breach of
contract cases. Taylor v. Fishing Tools, Inc., 274 F. Supp. 666,
673 (E.D. La. 1967). According to the briefs and record in this
case, this dispute concerns a breach of contract and therefore the
Direct Action Statute would not apply. Second, even if Black
Crystal’s underlying claim is one in tort, an action under the
Direct Action Statute is subject to a prescriptive period, which
has expired because the Kentucky suit ended 14 years before the
filing of the present action and Skuld was never a party to the
Kentucky action. See Etienne v. Nat’l Auto. Ins. Co., 747 So. 2d
593, 596 (La. Ct. App. 1999), aff'd, 759 So. 2d 51 (La. 2000);
Reeves v. Global Indemnity Co. Of New York, 168 So 488, 489 (La.
1936).
Moreover, the fact that Black Crystal registered a foreign
judgment in another state does not change the result in this case.
Registration of a foreign judgment is only an enforcement device
and the registered judgment can be accorded no greater effect than
the foreign judgment upon which it is based. La. Rev. Stat.
§13:4242. The foreign judgment of Kentucky is against Landaf and
Polykyn; Skuld is not a party. The revival and registration of the
judgments against Landaf and Polykyn in Orleans does not create a
right of action against the alleged insurer who was not named in
any of the other suits. See Welltech, Inc. v. Abadie, 666 So. 2d
1234, 1236 (La. Ct. App. 1996) (holding that all substantive
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defenses are available against enforcement of foreign judgments),
writ den’d, 672 So. 2d 690 (La. 1996).
The other issues Black Crystal has raised on appeal have no
affect on the outcome of this case. First, Black Crystal claims
that Skuld should not have been allowed to bring its motion to
dismiss after it had answered the complaint. Black Crystal claims
that the motion was a Rule 12(b)(6) motion to dismiss and the court
had no authority to grant the motion at that stage in the
litigation and furthermore that Black Crystal’s ability to respond
to the motion was unduly restricted by the court. Skuld in its
answer stated as a defense that Black Crystal had failed to state
a claim upon which relief could be granted but its motion to
dismiss simply requested the court dismiss the “complaint because
it is time barred.” The district court did refer to the Rule
12(b)(6) standard for dismissal. The court, however, treated the
motion to dismiss like a Rule 56 summary judgment motion and
considered information outside the pleadings, which is permissible
under Rule 12(b). FED. R. CIV. P. 12(b). Also, it appears that
Black Crystal neither made an objection to the court’s
consideration of the motion to dismiss as barred by procedural
rules nor was Black Crystal prevented from bringing any other
information to the court’s attention. Therefore, Black Crystal’s
claims are without merit and the district court properly granted
Skuld’s motion to dismiss because the case could have been
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dismissed as provided for under Rule 56.
Second, Black Crystal claims that Skuld had notice of the
Kentucky suit and therefore is barred from asserting the
prescription defense. However, Black Crystal asserts no facts that
Skuld had notice of the suit in the legal sense but only that Skuld
knew of the Kentucky suit. Nonetheless, Black Crystal’s assertion
is irrelevant. See Brady v. Bernard, 230 So. 2d 413, 415 (La. Ct.
App. 1970) (stating “[w]e have no doubt [Defendant] had actual
knowledge of the pendency of [Plaintiff’s] initial suit . . . but
that ha[s] no bearing on the running of prescription in
[Defendant’s] favor”).
Because the Direct Action Statute does not apply to breach of
contract cases, the instant suit is barred by prescription; and,
because the registration of a foreign judgment can be given no
greater effect than the foreign judgment upon which it is based,
the district court did not err in granting Skuld's Motion to
Dismiss.
II. Whether Black Crystal should have been given the opportunity
to amend its complaint.
A review of the docket sheet reveals that during the pendency
of the proceeding, Black Crystal never requested the opportunity to
amend its pleading. Therefore, the district court did not err
because it never denied Black Crystal the opportunity to amend
because the court was never presented with the opportunity to make
such a denial. On appeal, Black Crystal neither cites authority to
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support its claim that the district court erred nor explains why it
never requested the opportunity to amend. Rather, Black Crystal
simply claims what it would have done if it had the opportunity to
redo the litigation. Therefore the district court did not err.
CONCLUSION
The decision of the district court is affirmed. AFFIRMED.
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