REVISED, April 28, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30411

FEDERAL DEPOSIT INSURANCE

CORPORATION, as receiver and

subrogee of Capital Union Savings

FA and Capital-Union Savings

Association and in its corporate

capacity as manager of the FSLIC

Resolution Fund,

Plaintiff-Appellant,

versus

INSA S. ABRAHAM, ET AL.,

Defendants,

INSA S. ABRAHAM, NAYLOR M. CRAGIN,

JAMES S. EMERY, CHARLES C. GARVEY,

WILLIAM L. MILLER, G. ALLEN PENNIMAN,

JR., RAYMONE G. POST, JR., M. J.

RATHBONE, JR., PAUL R. REEVES, ROBERT

M. STUART, O.M. THOMPSON, JR., O.M.

THOMPSON, III, WILLIAM H. WRIGHT, JR.,

DANIEL H. HOFFMAN, JR., HIBERNIA

NATIONAL BANK, in its capacity as

curator of the property and estate

of Henry W. Jolly, Jr.,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

March 13, 19981 The FDIC’s late efforts to create a gen uine issue of

material fact by recharacterizing Appellees’ action in the

repurchase of Royal Palm’s participation is unavailing; at worst it

amounted to gross negligence and at best to a permissible exercise

of their collective business judgment.

2 La. Rev. Stat. Ann. § 6:291 (West 1986) (amended 1992). The

1992 amendments to Title 6 of the Louisiana Revised Statutes made

§ 6:291 applicable to officers and directors of banks and bank

holding c ompanies only, adding a new provision —— § 6:786 —— to

cover officers and directors of o t her financial institutions,

presumably in cluding savings and loan associations and other

“thrifts.”

2 Before JOLLY, WIENER and STEWART, Circuit Judges.

WIENER, Circuit Judge.

The FDIC, as statutory successor to t he RTC, appeals the

district court’s grant of summary judgmen t dismissing the suit

filed by the RTC in June 1993 against fifteen (15) former officers

and directors (collectively, Appellees) of Capital-Union Savings,

F.A. The gravamen of the district court’s judgment was its

determination that the claims asserted against Appellees for breach

of their fiduciary duties sounded in unintent ional tort, i.e.,

negligence (or gross negligence), and were thus time barred by

Louisiana’s one-year prescriptive period; that none of the claims

against Appellees

—— including the claim arising from the

repurchase of another thrift’s participati o n in the so-called

Esplanade Mall Loa n 1

—— rose to the level of fraud, self-dealing,

bad faith, or any other kind of misdeed that would con stitute a

breach of Appellees’ fiduciary duty o f “good faith” under the

applicable state statute. 2

The district court concluded that its decision was mandated by3 96 F.3d 128 (5th Cir. 1996), r eh’g and suggestion for reh’g

en banc denied , 104 F.3d 700 (5th Cir. 1997).

4 Id. at 133-34.

5 I d. at 133 (citing FDIC v. Duffy

, 47 F.3d 146, 152 (5th

Cir. 1995) (quoting Gerdes v. Estate of Cush

, 95 3 F.2d 201, 205

(5th Cir. 1992)).

6 691 So.2d 213 (La. Ct. App.), writ denied

, 696 So.2d 1008

(La.), recons. denied , 701 So.2d 146 (La. 1997).

7 La. Rev. Stat. Ann. § 12:91 (West 1994).

3 our holding in FDIC v. Barton

, 3 in the opinion of which w e state

that “[g]ross negligence is a violation of the duty of care, but

unless it is coupled with fraud, a breach of trust or other ill

acts, it does not constitute a breach of fiduciary duty.” 4 The

Barton op inion goes on to say that “[t]o set out a claim for the

breach of fiduciary duty, the FDIC would have to have alleged the

failure of good faith and loyalty by the Directors.” 5

The principal thrust of the FDIC’s position on appeal is that,

irrespective of what we h eld in B arton

, we are now Erie -bound to

abandon that case as binding precedent and follow the subsequent,

purportedly opposite holding of a Louisiana intermediate court of

appeal in Theriot v. Bourg

. 6 In considering the fiduciary duty of

corpor ate directors in Louisiana under the Business Corporation

Law, 7 which contained language identical to the wording of the

statutes that applied to bank and savings and loan directors at the

times relevant to the instant sui t, the T heriot court merely

approved the trial court’s jury charge which described the duty of

officers and directors of Louisiana cor porations as “two-fold:

First, is the duty to act in good faith. Second, there is the duty8 Theriot , 691 So.2d at 221-22.

9 864 F.2d 1147, 1152 (5th Cir. 1989) (holding that simple

negligence alone was insufficient to establish personal liability

of an off icer or director of a nonprofit Louisiana corporation;

“[I]n order to recover against any defendant, the plaintiff must

establish at least gross negligence on the part of that

defendant.”).

4 to act with due care.

. . . The law does not require that the

officers or directors who breach their fiduciary duties as to the

corporation profit financially from the corporation’s loss before

they can be held liable for damages resulting from their breach of

duty.” 8 The T heriot court went on to say that it was unpersuaded

by our decision in Louisiana World Exposition v. Federal Insurance

Company

. 9

The Louisiana Supreme Court denied writs in Theriot ; and it is

clear that in doing so the court was aware of our Barton opinion,

as it was argued in support of the writ application. What effect,

if any, Barto n may have had in the decision to deny writs is

unknown. What is known, however, is that Theriot did not involve

the issue of time bar. Neither can the opinion in T heriot be read

as a clear an d unequivocal holding —— as the FDIC would have us

read it —— that (1) the version of the state statute defining the

fiduciary duty of officers and directors of banks and savings and

loan associations then in effect created a single duty, (2) such

duty was personal under the Louisiana scheme rather than general or

delictual, or (3) the prescriptive period applicable to any breach

of the duty, whether it be the facet implicating loyalty and good

faith or the facet comprising the “prudent man” rule, was subject10 FDIC v. Myers , 955 F.2d 348, 349 (5th Cir. 1992).

1 1 F loors Unlimited, Inc. v. Fieldcrest Cannon, Inc.

, 55 F.3d

181, 184 (5th Cir. 1995).

12 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

1 3 L adue v. Chevron, U.S.A., Inc.

, 920 F.2d 272, 274

(5th Cir.), reh’g denied

, 925 F.2d 1461 (1991) (citing Commissioner

of Internal Revenue v. Estate of Bosch

, 387 U.S. 456, 465, 87 S.

Ct. 1176, 1783, 18 L.Ed.2d 886 (1967)).

1 4 I d. (internal citat ions omitted). C .f. Green v. Walker

, 910 F.2d 291, 294 (5th Cir. 1990) (Louisiana appellate court

decision merely a “guide” to federal court in its decision-making

5 to the prescriptive period of ten years.

Our well-known standard of review of the district court’s

grant of summary judgment is de novo

. 10 “To the extent a district

court’s grant of summary judgment is based on an interpretation of

state law , our review of that determination is also d e novo .” 11

Even though federal subject matter jurisdiction of the case we

review on appeal today is not grounded in diversity of citizenship,

we nonetheless apply the rules of interpretation that have evolved

since Erie Railroad v. Tompkins 12 to the controlling state law here

under examination. “When adjudicating claims for which state law

provides the rules of decision, even when those claims are `federal

questions’ in form, we are bound to apply the law as interpreted by

the state’s highest court.” 13 And, when a state’s highest court has

not spoken on an issue, our task is to determine as best we can how

that court would rule if the issue were before it. In so doing, we

are bound by an inter mediate state appellate court decision only

when we “remain unconvinced `by other . . . data that the highest

court of the state would decide otherwise.’” 14process) and Wood v. Armco, Inc. , 814 F.2d 211, 213 n.5 (5th Cir.

1987) (“The decision of an intermediate appellate state court

guides, but is not necessarily controlling upon, the federal court

when determining what the applicable state law is.”).

1 5 S ee La. Rev. Stat. Ann § 6:293, added by Acts 1992, No.650,

and § 6:787, added by Acts 1992, No. 586 (West Supp. 1998).

6 Among the “other . . . data” that might contribute to our

remaining unconvinced that the Louisiana Supreme Court would decide

contrary to our decision in Barton is the fact that the Louisiana

statutes that deli neate the fiduciary duties of an officer or

director of a bank or other financial institution were amended in

1992 by legislation (which, incidentally, appears to conform to our

holding in Barton ) clarifying that an action for the breach of an

officer’s or director’s duty of care (including a breach based on

gross negligence) has a different prescriptive period than a breach

of the duty of good faith (intentional breach es of the duty of

loyalty, and acts or omissions of bad faith, fraud, or violations

of law). The clarifying legislation specifies that negligence

actions against such fiduciaries must be filed within one (1) year

following the date of the act, omission, or neglect, or within one

(1) year after it was or should have been discovered, but in no

case later than three (3) years from the date of the act, omission

or neglect. On the other hand, that legislation specifies a twoyear prescriptive period and four-year preemptive period for such

fiduciaries’ intentional and fraudulent breaches of the duty of

good faith of such fiduciaries. 15 Such expressions by the Louisiana

legislatur e augur against an eventual Louisiana Supreme Court

holding that would make Barton clearly wrong.16 S ongbyrd, Inc. v. Bearsville Records, Inc., et al.

,

104 F.3d 773, 776 (citing Alvin B. Rubin, H azards of a Civilian

Venturer in a Federal Court: Travel and Tra vail on The Erie

Railroad , 48 La.L.Rev. 1369, 1372 (1988)).

1 7 U nited States v. Taylor

, 933 F.2d 307 , 313 (5th Cir.),

cert. denied , 502 U.S. 883, 112 S. Ct. 235, 116 L.Ed.2d. 191

7 And, if we are chary to rely on

—— much les s be bound by ——

the holding o f one intermediate state appellate court as the

harbinger of such a future ruling by the state’s highest court, we

are doubly so when, as now, the state in question i s Louisiana,

where the primary sources of law are its constitution, codes, and

statutes and the decisions of its courts are secondary sources of

law until and unless the numbers and unanimity of such decisions

achieve the force of law through the Civil Law doctrine of

jurisprudence constante

. 16 Likewise, our usual reluctance to use the

single holding of but one among a number of intermediate state

courts of appeal as the foundation of an “ Erie -guess” about how the

highest court of the state might rule on a given issue of state law

is further heightened in the instant case by the realization that

the FDIC’s pu rpose in urging us to do so is to have us disregard

our decision in Barton in favor of such a guess. Thus the appeal

we consider today places us squarely at the legal intersection

where the foregoing Erie rules for interpreting state law collide

with the doctrine of stare decisis

.

We are, of course, a strict stare decisis court. One aspect

of that doctrine to which we adhere without exception is the rule

that one panel of this court cannot disregard, much less overrule,

the decision of a prior panel. 17 Adherence to this rule is no less(1991).

1 8 B roussard v. Southern Pac. Transp. Co.

, 665 F.2d 1387, 1389

(5th Cir. 1982) ( en banc ).

19 P ruitt v. Levi Strauss & Co. , 932 F.2d 458, 465 (5th Cir.

1991)(citing F arnham v. Bristow Helicopters, Inc.

, 776 F.2d 535,

537 (5th Cir. 1985)); see Lee v. Frozen Food Express, Inc.

, 592 F.2d 27 1, 272 (5th Cir. 1979) (our own precedent “should be

followed by other panels

. . . absent a sub sequent state court

decision or statutory amendment which makes this Court’s decision

clearly wrong.”).

20 776 F.2d 535, 537 (5th Cir. 1985).

2 1 B roussard

, 665 F.2d at 1389 (quoting Lee

, 592 F.2d at 272).

8 immutable when the matter determined by the prior panel is the

interpretation of state law: Such interpretations are no less

binding on subsequent panel s than are prior interpretations of

federal law. 18 Thus, when a panel is considering a governing

question of state law on which a prior panel has ruled, the

subsequent panel’s obligation t o follow that ruling is not

alleviated by intervening decisions of intermediate state appellate

courts unless such “subsequent state court decisions

. . . are

clearly contrary to a previous decision of this court.” 19

This general rule, as quoted from Pruitt

, arises from

identical language in Farnham v. Bristow Helicopters, Inc.

, 20 which

itself relied on the following c omment in B roussard v. Southern

Pacific Transportation Co. :

[A] prior panel decision “should be followed by other

panels without regard to any alleged existing confusion

in state law, absent a subsequent state court decision or

statutory amendment which makes this Court’s [prior]

decision clearly wrong.” 21

Neither Broussard nor Lee clarified precisely what is meant by “a9

subsequent state court decision

. . . which makes this Court’s

[prior] decision clearly wrong,” but, at a minimum, a contrary

ruling squarely on point is required. We read B roussard and Lee to

contemplate a ruling from a state’s highest court only, by virtue

of the close proximity of the references to such courts and

statutory amendments. Admittedly, F arnham relied on two subsequent

contrary state ap pellate court decisions to justify disregarding

our prior precedent; yet even in Farnham there were ultimately four

intermed iate appellate court decisions (two prior and two

s ubsequent) from three of Louisiana’s five courts of appeal, and

the holdings in all four cases were squarely contrary to our

precedent.

We conclude then, that when our Erie analysis of controlling

state law is conducted for the purpose of deciding whether to

follow or depart from prior precedent of this circuit, and neither

a clearly contrary subsequent holding of the highest court of the

state nor a subsequent statutory authority, squarely on point, is

available for g uidance, we should not disregard our own prior

precedent on the basis of subsequent intermediate state appellate

court precedent unless such precedent comprises unanimous or nearunanimous holdings from several

—— preferably a majority

—— of the

intermediate appellate courts of the state in question.

But even in the alternative that we would be prone to

disregard our own precedent on the basis of nothing more than one

contrary opinion of but one of the several intermediate courts of

appeal of the state in question, we would not do so in this case.2 2 Although not at issue here, both cases implicitly recognize

that officers and directors in Louisiana also must discharge their

fiduciary duties in good faith, i.e., free of fraud, self-dealing,

and other s uch ill acts; and, again implicitly, that breach of a

duty of good faith by officers and directors is subject to the ten

year prescription for personal actions.

10 For even a cursory comp arison of the issues, discussions, and

holdings in Barton and Theriot demonstrates beyond cavil that the

pure holding of Theriot is not “clearly contrary” to the holding of

Barton

. In a nutshell, T heriot recognizes that the state statutory

language under examination in both cases requires officers and

directors to discharge their fiduciary duties in ways that are free

of, inter alia

, negligence. 22 B arton

, on the other hand, concerned

only the question whether the breach of a fiduciary’s duty of care

under the prudent man standard of the statute i s subject to the

one-year liberative prescription for delicts or, by virtue of its

inclusion in the statutory listin g of the standards of care of a

fiduciary, is subject to the ten-year prescription that is

applicable to a fiduciary’s breach of the duty of loyalty or good

faith

—— the precise issue on which the decision of the district

court turned in the instant case. Thus, even if aspects of the

reasoning in the state appellate court decision in Theriot are

contrary to some aspects of the reasoning in Barton

, we cannot say

that the holding in Theriot is “clearly” contrary to the holding in

Barton

.

Inasmuch as we agree with the district court’s conclusion that

all claims asserted by the FDIC (including the claim emanating from

the Esplanade Mall matter) sound in negligence, it follows that the11

district court correctly determined that it was constrained by our

decision in Barton to hold that those claims are barred by the oneyear period of prescription for delictual actions. And, as we

reach the same conclusion in our de novo review regarding the

nature of the FDIC’s claims, and

—— like the district court

—— are

bound by the holding in Barton

, we affirm in all respects the

district court’s grant of summary judgment dismissing the claims of

the FDIC against Appellees.

AFFIRMED.