Climmie Craft v. Crowley Marine Services, Inc. F/K/A Delta Steamship Lines, Inc.

CLIMMIE CRAFT * NO. 2024-C-0602

VERSUS *
COURT OF APPEAL
CROWLEY MARINE *
SERVICES, INC. F/K/A DELTA FOURTH CIRCUIT
STEAMSHIP LINES, INC. *
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2023-11586, DIVISION “B”
Honorable Marissa Hutabarat
******
Judge Rachael D. Johnson
******
(Court composed of Judge Dale N. Atkins, Judge Rachael D. Johnson, Judge
Nakisha Ervin-Knott)

Kevin J. Lavie
Joseph E. Lee, III
PHELPS DUNBAR LLP
Canal Place, Suite 2000
New Orleans, 70130-6534

COUNSEL FOR RELATOR/APPLICANT

David Ryan Cannella
Christopher C. Colley
Kristopher L. Thompson
Emily C. LaCerte
BARON & BUDD, P.C.
2600 Citibank, Suite 400
Baton Rouge, 70808

COUNSEL FOR RESPONDENT

WRIT GRANTED, JUDGMENT VACATED
September 25, 2024

RDJ Relator Crowley Marine Services, Inc. f/k/a Delta Steamship Lines, Inc.
DNA (“Relator”) seeks supervisory review of the trial court’s August 30, 2024
NEK
interlocutory judgment granting an exception of res judicata, motion for partial

summary judgment, and/or motion to strike defenses. The trial court sustained the

exception of res judicata, granted summary judgment, and struck all defenses

concerning any issue that had been actually litigated and determined in Mr. Jerry

Craft’s (“Mr. Craft”) case.1 On the exception of res judicata, the trial court found:

Under Louisiana R.S. 13:4231, there is issue preclusion
as to the 2018 final judgment finding Jerry Craft was
occupationally exposed to asbestos while employed by
defendants James J. Flanagan Shipping Corporation and
Crowley Marine Services, Inc., who were both found to
be at fault for his exposure and asbestos-related diagnosis
of mesothelioma. Accordingly, the exception of res
judicata as filed by the plaintiff in this matter is
sustained.

In Relator’s writ application, Relator alleges that res judicata does not apply

because the parties are not the same and the causes of action asserted in the case

sub judice did not exist at the time of the final judgment in Mr. Craft’s case.

Relator further alleges that a res judicata ruling will hinder its ability to argue

1 Civil District Court for the Parish of Orleans, Case No. 2017-06069. (“Mr. Craft’s Case”) The

appeal for this case is Craft v. Ports America Gulfport, Inc., 18-0814 (La. App. 4 Cir. 5/8/19),
273 So. 3d 517.

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whether Mr. Craft had significant exposure to asbestos such that the amount he

brought home caused Respondent Climmie Craft’s (“Respondent”) lung cancer.

Respondent argues that although res judicata applies under La. R.S. 13:4231, the

court’s ruling does not prevent Relator from arguing the extent of Respondent’s

exposure to asbestos through her husband and that Relator owed a duty to

Respondent. After reviewing the Relator’s application and Respondent’s

opposition, we grant the Relator’s writ.

According to La. R.S. 13:4231, res judicata applies:

(1) If the judgment is in favor of the plaintiff, 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 merged in the
judgment.
(2) If 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.
(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.

To succeed on a res judicata claim, the following five elements must be met:

(1) the judgment is valid; (2) the judgment is final; (3)
the parties are the same; (4) the cause or causes of action
asserted in the second suit existed at the time of final
judgment in the first litigation; and (5) the cause or
causes of action asserted in the second suit arose out of
the transaction or occurrence that was the subject matter
of the first litigation.

Kimball v. Kamenitz, 21-0101, p. 21 (La. App. 4 Cir. 10/26/21), 331 So. 3d 474,

488 (quoting Myers v. Nat’l Union Fire Ins. Co. of La., 09-1517, p. 7 (La. App. 4

Cir. 5/19/10), 43 So. 3d 207, 211).

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Pursuant to the elements outlined in Kimball, the res judicata claim fails.

The case does not involve the same parties nor did the cause of action asserted in

the Respondent’s suit exist at the time of the final judgment in Mr. Craft’s case.

When evaluating whether the same parties requirement of res judicata is satisfied,

the identity of the parties in the first and subsequent action “must at least be in

privity with each other.” In re Parish, 81 F.4th 403, 415 (5th Cir. 2023). “[A] privy

is defined as ‘one who, after the commencement of an action, 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, 49,490, p. 13 (La. App. 2 Cir. 12/10/14), 154 So. 3d 747, 757-58

(quoting Five N Company, L.L.C. v. Stewart, 02–0181, p. 16 (La. App. 1st Cir.

7/2/03), 850 So. 2d 51, 61). “It is not sufficient to merely show that the party and

the nonparty have common or parallel interests in the factual and legal issues

presented in the respective actions.” Slaughter v. Atkins, 305 F. Supp. 3d 697, 709

(M.D. La. 2018). Respondent and Mr. Craft are not the same party, and there is no

privity by way of inheritance, succession, purchase, or assignment. Respondent

and Mr. Craft have their own individual claim to asbestos-related exposure and

simply because both parties have a common or parallel interest is not sufficient for

res judicata to apply.

Further, the cause of action asserted in the case sub judice did not exist at the

time of final judgment in Mr. Craft’s case. The final judgment in Mr. Craft’s case

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is dated July 10, 2018. Respondent did not discover that she had asbestos-related

lung cancer until on or about September 27, 2023.

Accordingly, we grant Relator’s writ and vacate the August 30, 2024

interlocutory judgment granting an exception of res judicata, motion for partial

summary judgment, and/or motion to strike defenses.

WRIT GRANTED, JUDGMENT VACTED

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