IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60224

ONEBEACON AMERICA INSURANCE COMPANY, 

 Plaintiff - Appellee

v.

DOROTHY L. BARNETT, Individually, and as Wrongful Death Beneficiary 

of Howard Barnett, Deceased, and on Behalf of all Wrongful Death 

Beneficiaries of Howard Barnett, Deceased, 

 Defendant - Appellant

_____________________________________

DOROTHY L. BARNETT, individually, and as wrongful death beneficiary of 

Howard Barnett, deceased, and on behalf of all wrongful death beneficiaries 

of Howard Barnett, deceased,

 Plaintiff - Appellant

v.

MISSISSIPPI VALLEY SILICA COMPANY,

 Defendant 

ONEBEACON AMERICA INSURANCE COMPANY, formerly known as 

Commercial Union Insurance Company and OneBeacon America Insurance 

Company, formerly known as Commercial Union Insurance Company as 

successor in interest to Columbia Casualty Company,

 Garnishee – Appellee

United States Court of Appeals

Fifth Circuit

FILED

February 27, 2019

Lyle W. Cayce

Clerk

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Appeal from the United States District Court 

for the Southern District of Mississippi,

USDC No. 3:14-CV-41 

 USDC No. 3:14-CV-125

Before SMITH, BARKSDALE, and HO, Circuit Judges.

PER CURIAM: *

Dorothy L. Barnett, individually, and as wrongful death beneficiary of 

Howard Barnett, deceased, and on behalf of all wrongful death beneficiaries of 

Howard Barnett, deceased (Barnett), challenges the summary judgment 

awarded OneBeacon American Insurance Company, asserting: collateral 

estoppel does not bar her claim; and, genuine disputes of material fact exist 

regarding coverage under OneBeacon’s insurance policies. VACATED and 

REMANDED. 

I.

In 2011, Barnett filed a wrongful-death action in Mississippi state court 

against multiple defendants, including Mississippi Valley Silica Company 

(MVSC), alleging her husband contracted and died of silicosis—a lung disease 

caused by inhaling silica dust—while he was employed from 1957-88 by

Mississippi Steel & Iron in Jackson, Mississippi. In 2012, a jury found in favor 

of Barnett, and against MVSC and two other defendants on her negligentfailure-to-warn claim, and awarded her $1,095,000 in compensatory and 

punitive damages. 

 

* 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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MVSC, however, had ceased operating in 1978, and took bankruptcy in 

1998; functionally, MVSC exists only through its insurance carriers. MVSC

carried different insurance policies with different companies throughout its 

operating period, and, in addition to OneBeacon, Barnett has sought to collect 

her judgment against six other previous insurers for MVSC. (Those six other 

insurers are not parties to this action). 

Columbia Casualty Company, now OneBeacon, admits it issued 

insurance policies to MVSC from 1958-67. Only one of those policies, however,

has been located (for 1962-63); the others are lost. 

OneBeacon filed a petition for declaratory judgment in Louisiana state 

court in August 2013 against MVSC, seeking a declaration that its policies 

issued to MVSC do not provide coverage for Barnett’s Mississippi-state-court

judgment. (The Louisiana state court had personal jurisdiction because MVSC 

was incorporated in Louisiana; therefore OneBeacon filed the action there.) 

OneBeacon insists the Louisiana court thoroughly “reviewed the law and the 

evidence”, but Barnett contends the proceeding was functionally a default 

judgment and MVSC was never represented. 

In that regard, the record from the Louisiana proceeding shows 

OneBeacon requested the court verify no answer was filed by MVSC, and a 

preliminary default was entered in mid-September 2013. OneBeacon’s 

attorney moved for declaratory judgment, and offered into evidence, inter alia,

the affidavits of Fitzgerald (the OneBeacon account manager handling 

Barnett’s claim) and Simmonds (an underwriter for one of OneBeacon’s 

predecessor companies, who had knowledge of the types of policies issued 

during the relevant time period)—the evidence in the summary-judgment 

record at hand. OneBeacon then briefly explained its position: MVSC did not 

purchase products-hazard coverage, as discussed infra. 

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The Louisiana court ruled from the bench in favor of OneBeacon, and 

granted the declaratory judgment. Barnett insists she was never provided any 

notice for, nor joined in, the Louisiana declaratory action by OneBeacon 

against MVSC. 

In district court in January 2014, OneBeacon filed against Barnett the

complaint for declaratory judgment in this action, seeking “enforc[ement] [of] 

the Louisiana state court judgment ruling that the policies issued by 

OneBeacon to [MVSC] do not provide coverage for the claims asserted by 

Barnett . . . ”. Later that month, Barnett filed in Mississippi state court a writ 

of garnishment against OneBeacon, which it removed to district court, and 

consolidated with its pending declaratory action. 

OneBeacon moved for summary judgment, seeking a declaration of its 

liability and a dismissal of Barnett’s garnishment claim. The district court 

granted summary judgment in favor of OneBeacon, concluding: Barnett was 

collaterally estopped by the Louisiana state court judgment; but, even on the 

merits, OneBeacon’s policies for MVSC did not provide coverage for her 

Mississippi-state-court judgment. 

II. 

Barnett challenges the district court’s sua sponte application of collateral 

estoppel, which was based on the Louisiana state-court judgment in favor of 

OneBeacon against MVSC. In the district court’s, in the alternative, granting

summary judgment for OneBeacon on the merits regarding coverage vel non, 

the court stated it “finds itself in lockstep with the Louisiana state court, and 

. . . the policies issued by OneBeacon to [MVSC] do not provide coverage for the 

judgment rendered in favor of Barnett against [MVSC] by the Mississippi state 

court”. Barnett contends summary judgment on that basis is improper, 

asserting: there are genuine disputes of material fact regarding OneBeacon’s 

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lost policies; and, as a matter of law, the language of the above-referenced 1962-

63 policy is ambiguous. 

A summary judgment is reviewed de novo, “applying the same criteria”

employed by the district court. E.g., Norman v. Apache Corp., 19 F.3d 1017, 

1021 (5th Cir. 1994) (citations omitted). All reasonable inferences must be 

drawn in favor of the nonmovant, but “a party cannot defeat summary 

judgment with conclusory allegations, unsubstantiated assertions, or only a 

scintilla of evidence”. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 

343 (5th Cir. 2007) (internal quotation marks and citation omitted).

Summary judgment is appropriate where “there is no genuine dispute

[of] material fact”, and “movant is entitled to judgment as a matter of law”. 

Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the 

suit under the governing law”, thereby “preclud[ing] the entry of summary 

judgment”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 

“dispute about a material fact is ‘genuine[]’ . . . if the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party”. Id. 

For the reasons that follow, this action is remanded for trial, but with 

our panel’s retaining jurisdiction. As the parties conceded at oral argument, 

no jury demand was made; therefore, this matter is to be tried by the court 

(bench trial).

A. 

This court reviews de novo, as a question of law, both the preclusive effect 

of a prior judgment, Test Masters Educ. Serv., Inc., v. Singh, 428 F.3d 559, 571 

(5th Cir. 2005), and the application of collateral estoppel, United States v. 

Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997).

Although, as a general rule, collateral estoppel must be pleaded as an 

affirmative defense, the district court raised collateral estoppel sua sponte.

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Our court has recognized two instances in which such a sua sponte ruling is 

permissible: “both actions were brought in courts of the same district”, 

Trammell Crow Residential Co. v. Am. Prot. Ins. Co., 574 F. App’x 513, 522 

(5th Cir. 2014) (citations omitted); or, “‘all of the relevant facts are contained 

in the record and . . . uncontroverted’”, Mowbray v. Cameron Cty., 274 F.3d 

269, 281 (5th Cir. 2001) (quoting Am. Furniture Co., Inc. v. Int’l 

Accommodations Supply, 721 F.2d 478, 482 (5th Cir. Unit A 1981)). Because 

the Louisiana state-court proceeding and the action at hand were obviously not 

“brought . . . in . . . the same district”, Trammel, 574 F. App’x at 522, and

because, as explained infra, relevant facts contained in the record are far from 

“uncontroverted”, Mowbray, 274 F.3d at 281, the district court erred in sua 

sponte applying collateral estoppel. 

In addition, both parties agree on appeal that collateral estoppel does not 

bar Barnett’s claim. In that regard, we also conclude on the merits of collateral 

estoppel vel non that its application would be improper under both Mississippi 

and Louisiana law. We also review the district court’s applying Mississippi 

collateral-estoppel law to a Louisiana-state-court judgment, in contravention 

of the Supreme Court’s decision in Kremer v. Chemical Construction

Corporation, 456 U.S. 461 (1982). 

As noted, the district court applied Mississippi collateral-estoppel rules, 

although Barnett contends Louisiana law applies to that issue. Although 

ultimately we conclude collateral estoppel would be inapplicable under either 

State’s law, the choice of Mississippi law in determining the preclusive effect 

of a Louisiana-state-court judgment was arguably in error. “Rather, [28 U.S.C. 

§ 1738 (State and territorial statutes and judicial proceedings; full faith and 

credit)] . . . commands a federal court to accept the rules chosen by the State 

from which the judgment is taken.” Kremer, 456 U.S. at 482 (emphasis added)

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(citations omitted); see also Cox v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th 

Cir. 2016); Thompson v. Dall. City Att’y’s Office, 913 F.3d 464, 468 (5th Cir. 

2019). 

Moreover, we are satisfied the collateral-estoppel holding under 

Mississippi law constitutes error. In Mississippi, “[c]ollateral estoppel applies 

where three elements are present: ‘(1) the issue involved in the second suit 

was identical to the one involved in the previous suit; (2) the issue was actually 

litigated in the prior action; and, (3) the resolution of the issue was necessary 

to the prior judgment’”. Evans v. Sharpley, 607 So. 2d 1210, 1213 (Miss. 1992) 

(quoting In the Interest of K.M.G., 500 So. 2d 994, 997 (Miss. 1987)). The 

district court grounded its holding in the erroneous conclusion that Barnett 

was “in privity” with MVSC, a party in the Louisiana declaratory-action. 

As noted, Barnett was not a party to the Louisiana-state-court action by 

OneBeacon against MVSC. Unlike American Furniture, where the court also 

sua sponte raised collateral estoppel based on a prior Louisiana state-court 

judgment, American Furniture was a party to the prior state-court litigation,

and directly litigated the relevant issues; therefore, “[i]t may not later pursue 

its position in the federal court diversity suit . . . ”. Am. Furniture, 721 F.2d at 

482. Because Barnett was not a party to the Louisiana state-court action, she 

is not bound by the prior judgment, nor does it preclude her bringing this 

action. Taylor v. Sturgell, 553 U.S. 880, 884 (2008) (“It is a principle of general 

application in . . . jurisprudence that one is not bound by a judgment in 

personam in a litigation in which he is not designated as a party or to which 

he has not been made a party by service of process.” (internal quotation marks 

omitted) (quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940))); 18A Wright & 

Miller, Federal Practice & Procedure § 4449 & n.22 (3d ed. 2017). 

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And, as also noted, Barnett was not “in privity” with one of the original 

parties under Mississippi law. She was not within the “chain of sale” of 

MVSC’s purchase of insurance, Little v. V & G Welding Supply, Inc., 704 So. 

2d 1336, 1339 (Miss. 1997), was not connected by a prior attorney-client 

relationship, Claiborne v. Ocwen Loan Servicing, LLC, 194 So. 3d 877, 880 

(Miss. Ct. App. 2015), and did not “stand in mutual or successive relationship 

to the same [r]ights of property”, Clement v. R.L. Burns Corp., 373 So. 2d 790, 

794 (Miss. 1979) (internal quotation marks and citation omitted). 

Similarly, Barnett did not “control” the action by OneBeacon against 

MVSC, and it is extremely unlikely—to say the least—her “interests were 

represented adequately by a party in the original suit”: MVSC did not even 

appear. Sw. Airlines Co. v. Tex. Int’l Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 

1977) (citations omitted); see also Montana v. United States, 440 U.S. 147, 164 

n.11 (1979). As such, we agree with the parties that Mississippi collateral 

estoppel does not bar Barnett’s claim. 

Finally, and in accordance with the Court’s decision in Kremer, we 

further conclude Barnett’s claim is not precluded under Louisiana law. See 

Kremer, 456 U.S. at 482. In Louisiana, a party is collaterally estopped if “[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 [the] judgment”. La. Stat. 

Ann. § 13:4231(3) (1991). Barnett does not have an “identity” with one of the 

original parties under Louisiana law, because “a privy is defined as ‘one who 

. . . has acquired an interest in the subject matter affected by the judgment 

through or under one of the parties, as by inheritance, succession, purchase or 

assignment’”. Alpine Meadows, L.C. v. Winkler, 154 So. 3d 747, 757–58 (La. 

Ct. App. 2014) (quoting Five N Co., L.L.C. v. Stewart, 850 So. 2d 51, 61 (La. Ct. 

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App. 2003)), writ denied, 169 So. 3d 357 (La. 2015). Barnett falls within none 

of those four categories; accordingly, her claim is also not barred by Louisiana 

collateral-estoppel rules. 

B.

As noted, the district court, in the alternative, granted summary 

judgment for OneBeacon on the merits of coverage, concluding MVSC did not 

purchase products-hazard coverage and, therefore, Barnett’s Mississippi-statecourt tort judgment was not covered under the policies. Because genuine 

disputes of material fact and issues of law exist regarding coverage, the

summary judgment on the merits is vacated and this matter is remanded to 

district court for the above-described bench trial. 

1.

The district court did not evaluate the weight of the lost policies, instead 

focusing solely on the weight and relevance of the 1962-63 “rediscovered” 

policy. In instances where the district court did not explicitly address an issue 

on summary judgment in the first instance, our court has found it “advisable 

to vacate the district court’s grant of summary judgment with regard to the 

issue and remand it for further consideration . . . [with] no opinion on the 

merits of the issue”. Auclair v. Sher, 63 F.3d 407, 410 (5th Cir. 1995) (footnote 

omitted); accord Firefighters’ Ret. Sys. v. EisnerAmper, L.L.P., 898 F.3d 553, 

561 (5th Cir. 2018) (remanding for consideration of issue not addressed by 

district court).

The district court’s sole treatment of the missing policies is in its

discussing Simmonds’ affidavit, in which he stated he had “personal knowledge 

of . . . the types of policies and their terms in existence during the period 1957 

to 1987”. But, Simmonds’ statement does not directly address the absence of 

the other policies and how to determine their terms and conditions of coverage. 

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The parties also dispute whether “products-hazard” coverage was 

purchased. According to the 1962-63 policy, an injury falls within the 

“products-hazard” if, after goods or products are manufactured by the named 

insured, the “accident occurs after possession of such goods or products has 

been relinquished to others by the named insured”, and “the accident occurs 

away from premises . . . controlled by the named insured”. 

OneBeacon asserts such coverage was required to be purchased 

separately; but, Barnett contends products-hazard coverage is part of the 

general-liability policy unless expressly excluded. The burden of proof depends 

on which construction is correct. Under both Louisiana and Mississippi law, 

“the existence . . . of a contract is a question of fact” to be decided by the finder 

of fact. Townsend v. Urie, 800 So. 2d 11, 15 (La. Ct. App.) (citation omitted), 

writ denied, 797 So. 2d 674 (La. 2001); accord Hunt v. Coker, 741 So. 2d 1011, 

1014 (Miss. Ct. App. 1999). An insurance policy’s being simply a contract, the 

question whether MVSC purchased a separate form of products-hazard 

exclusion would most closely resemble the factual determination for whether a 

contract exists. More generally, a genuine dispute of material fact exists for 

whether products-hazard was required to be purchased separately or operated

as an exclusion to coverage. 

In Fitzgerald’s affidavit, he states MVSC “agreed during litigation that 

it did not purchase [products-hazard] coverage from OneBeacon”. Because

OneBeacon asserts it is Barnett’s burden to prove coverage, it contends this 

statement all but defeats her claim. Barnett, by contrast, notes Fitzgerald’s 

statement is based solely on a joint stipulation in Scarborough v. Northern

Assurance Company of America, 718 F.2d 130 (5th Cir. 1983) (stipulation of 

facts regarding the terms of a policy issued to MVSC by OneBeacon, before the 

1962-63 policy was discovered), not on any first-hand knowledge of the lost 

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policies; and, more to the point, that stipulation states “the policies of 

insurance issued by Insurers to MVSC contained a products exclusion”, 

potentially affecting the burden of proof. (emphasis added). 

Finally, the parties dispute whether Barnett’s negligent-failure-to-warn 

claim would qualify for coverage under the policy language. The parties also 

apparently dispute whether negligent-failure-to-warn is a products-liability 

injury, and therefore falls within the products-hazard, depending on which 

State’s products-liability law would apply. 

In short, there are genuine disputes of material fact and issues of law 

regarding the lost policies, and the operation of products-hazard as either 

separate coverage or an exclusion, that arguably affect these mixed questions

of law and fact. Without expressing an opinion on coverage under the missing 

policies, the burden of proof, the nature of “products-hazard coverage” or 

whether Barnett’s negligent-failure-to-warn claim qualifies, we remand for 

evaluation by the district court of these, and other, issues at the bench trial. 

2.

In addition, the parties dispute the interpretation of the “rediscovered” 

1962-63 policy language. Under both Louisiana and Mississippi law, 

determining “[w]hether or not ambiguity exists in an insurance policy is . . . a 

question of law”. Smith v. Am. Family Life Assurance Co. of Columbus, 584 

F.3d 212, 215 (5th Cir. 2009) (applying Louisiana law) (citation omitted);

Barden Miss. Gaming LLC d/b/a Fitzgerald’s Casino v. Great N. Ins., 576 F.3d 

235, 238 (5th Cir. 2009) (applying Mississippi law). 

Barnett contends her Mississippi-state-court tort judgment falls within 

the 1962-63’s policy’s coverage under Coverage B “Bodily Injury Liability—

Except Automobile”, which shows a premium of $127.42, and a limit of liability 

of $200,000 for “aggregate products”. Paragraph 6 of the policy “states ‘the 

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limits of bodily injury liability . . . stated in the declaration as “aggregate 

products” are respectively the total limits of the company’s liability for all 

damages arising out of the products hazard’”. Barnett notes Item 3 on the 

declarations page states “insurance afforded is only with respect to such . . . of 

the following coverages as are indicated by a specific premium charge”; and,

because the “aggregate products” shows an advance premium of $127.42, it is 

reasonable it qualifies for coverage under the language of Item 3, (particularly 

since, under Coverage D on the declarations page, aggregate products for 

“Property Damage Liability-Except Automobile” shows “Nil”). 

OneBeacon disagrees, pointing to the consolidated liability schedule

which shows apparently nothing was paid for “aggregate products” as the 

advance premiums under Coverage B total $127.42, showing nothing for 

“aggregate products”, which states only “Nil-See Endorsement”. When asked 

at oral argument to explain the incongruity between the two pages, OneBeacon 

admitted it did not know because “the record doesn’t indicate what that was”. 

At best, it is unclear why the policy language shows a paid-premium for 

“aggregate products” on the declarations page, but apparently not on the 

consolidated-liability schedule, creating an ambiguity. None of OneBeacon’s 

summary-judgment evidence addresses Barnett’s position regarding the 

$200,000 limit of liability for “aggregate products”, or the meaning of 

Paragraph 6 and its inclusion of “the products hazard”. Therefore, OneBeacon 

has not met its burden to show, as a matter of law, the 1962-63 insurance policy 

unambiguously precludes coverage. 

Although, at the outset, we noted interpretation of an insurance policy 

is a legal question, we go no further than stating the 1962-63 policy contains 

ambiguities; nor do we express any opinion as to the potential outcome 

stemming from those ambiguities. Under both Louisiana and Mississippi law, 

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once a policy is determined to be ambiguous, or further fact-finding is 

necessary to determine the effect of an ambiguity, a fact-finder must address 

those questions. Westerfield v. LaFleur, 493 So. 2d 600, 605 (La. 1986) 

(“[S]ummary judgment may not be rendered declaring lack of coverage unless 

there is no reasonable interpretation of the policy, when applied to the 

undisputed material facts . . ., under which coverage could be afforded.” 

(citation omitted)); Luquette v. Allstate Ins. (Indem.) Co., 174 So. 3d 736, 745

(La. Ct. App.), writ denied, 180 So. 3d 300 (La. 2015); Clark v. State Farm Mut. 

Auto. Ins., 725 So. 2d 779, 781 (Miss. 1998) (“The initial question of whether 

the contract is ambiguous is a matter of law, but the subsequent interpretation 

of the ambiguous contract presents a finding of fact.” (cleaned up and citations 

omitted)); see also W. Line Consol. Sch. Dist. v. Cont’l Cas. Co., 632 F. Supp. 

295, 301 (N.D. Miss. 1986). In the light of these ambiguities our court remands

this matter for evaluation at the bench trial of these, and other, issues

including choice of law and the interpretation of the ambiguous language.

C.

As noted, even though we remand this matter for trial, our panel retains 

jurisdiction over this appeal. See, e.g., United States v. Arellano-Banuelos, 912 

F.3d 862, 869 (5th Cir. 2019); Castillo v. City of Weslaco, 369 F.3d 504, 507 (5th 

Cir. 2004); Royal Bank of Can. v. Trentham Corp., 665 F.2d 515, 519 (5th Cir. 

Unit A 1981). In the interest of expediency, given this litigation began in state 

court nearly eight years ago, and with this action’s being filed in mid-January 

2014, the bench trial must be completed within 60 days from the date of this 

opinion. See Royal Bank of Can., 665 F.2d at 519. The parties conceded at oral 

argument that discovery is complete; it shall not be reopened on remand. 

The district court’s findings of fact and conclusions of law, including 

entry of judgment, must be filed within 30 days from the last day of trial. See 

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id.; see also Fed. R. Civ. P. 52(a)(1); 58. The findings and conclusions should 

include a conflict-of-laws analysis, as appropriate, given the lingering dispute 

between the parties over whether Louisiana or Mississippi law governs.

Any post-trial motions must be filed within 28 days from judgment. See 

Fed. R. Civ. P. 52(b); 59(b), (d), (e). All responses must be filed within 14 days; 

and, an order ruling on a motion must be entered within 30 days of the motion’s 

filing. 

III.

For the foregoing reasons, the judgment is VACATED and this matter

REMANDED. We retain jurisdiction over this appeal. Therefore, and in 

accordance with the above-imposed schedule’s ending with the entry of posttrial rulings: after the trial transcript, district court’s findings, conclusions,

and final judgment, and post-trial rulings are entered in district court, the

district court clerk shall return this matter to this court for disposition by this 

panel. 

Upon receipt, a briefing schedule will be set. 

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