Barbara Ann Brachett v. Universal Life Ins. Co., 519 F.2d 1072 (5th Cir. 1975). · Go Syfert
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Barbara Ann Brachett v. Universal Life Ins. Co., 519 F.2d 1072 (5th Cir. 1975). Cases Citing This Book View Copy Cite
14 citation events across 8 distinct courts.
Strongest positive: Aminta Flores, Cross-Appellants v. Edinburg Consolidated Independent School District, Cross-Appellees (ca5, 1984-09-17)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Aminta Flores, Cross-Appellants v. Edinburg Consolidated Independent School District, Cross-Appellees (2×)
5th Cir. · 1984 · confidence medium
Moreover, this circuit has already indicated that it does not believe Griffin to change the Texas law of res judicata; in Brachett v. Universal Life Insurance Co., 519 F.2d 1072, 1073 (5th Cir.1975),--a post-Griffin decision--we restated the traditional Texas formulation of res judicata (almost exactly as it was later restated by the Texas Supreme Court in Crow ) without citing Griffin, but citing Abbott Laboratories v. Gravis 5 It is unquestioned that a Sec. 1983 claim can be advanced in a state court suit, as state courts exercise concurrent jurisdiction with federal courts over such claims.
discussed Cited as authority (rule) City of Cleveland v. Cleveland Electric Illuminating Co.
N.D. Ohio · 1980 · confidence medium
See, Cromwell v. County of Sac, 94 U.S. 351 , 24 L.Ed. 195 (1877); Rogoski v. City of Muskegon, 550 F.2d 1075 (6th Cir. 1977); Brachett v. Universal Life Insurance Company, 519 F.2d 1072, 1073 (5th Cir. 1975); Pan American Match, Inc. v. Sears, Roebuck and Co., 454 F.2d 871 (1st Cir.), cert. denied, 409 U.S. 892 , 93 S.Ct. 113 , 34 L.Ed.2d 149 (1972); Harrison v. Bloomfield Building Industries, Inc., 435 F.2d 1192 (6th Cir. 1970); Flynn v. State Board of Chiropractic Examiners, 418 F.2d 668 (9th Cir. 1969); Saylor v. Lindsley, 391 F.2d 965 (2d Cir. 1968); see also, Hart v. Federal Reserve Bank…
examined Cited as authority (rule) Chester M. Himel v. Continental Illinois National Bank and Trust Company of Chicago (4×) also: Cited "see"
7th Cir. · 1979 · confidence medium
The district court’s determination that “plaintiffs have suggested no substantial reason and have presented no evidence for their failure [to allege the present claims] . . .,” 430 F.Supp. at 654 (citing Brachett v. Universal Life Insurance Co., 519 F.2d 1072,1073 (5th Cir. 1975)), was in error.
cited Cited "see" Tyson v. Pathman
N.D. Miss. · 1988 · signal: see · confidence high
See Brachett v. Universal Life Insurance Co., 519 F.2d 1072, 1073 (5th Cir.1975).
discussed Cited "see" Garr v. Lerner
S.D.N.Y. · 1981 · signal: see · confidence high
See Brachett v. Universal Life Insurance Co., 519 F.2d 1072, 1073 (5th Cir. 1975) (applying Texas law); Texas Water Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex.1979); Astra Bar, Inc. v. Manges, 608 S.W.2d 702, 705 (Tex.Civ.App.1980); cf. Gatzemeyer v. Vogel, 589 F.2d 360, 364 (8th Cir. 1978).
Retrieving the full opinion text from the archive…
Barbara Ann BRACHETT, Plaintiff-Appellee,
v.
UNIVERSAL LIFE INSURANCE COMPANY, Defendant-Appellant
75-1509.
Court of Appeals for the Fifth Circuit.
Sep 19, 1975.
519 F.2d 1072
1975 U.S. App. LEXIS 12700
Dewey J. Gonsoulin, Beaumont, Tex., for defendant-appellant., Alan McNeill, Beaumont, Tex., for plaintiff-appellee.
Gewin, Goldberg, Dyer.
Cited by 12 opinions  |  Published
PER CURIAM:

This is an appeal by Universal Life Insurance Company from a judgment for Brachett in the amount of $16,000, representing proceeds of insurance on the life of her husband. Universal argues that res judicata bars this suit. We agree and reverse.

[*1073] On November 6, 1971, Washington, an agent of Universal, solicited an application for mortgage cancellation life insurance from Brachett’s husband. After the first three months’ premium was paid, Washington told him that the policy would be in force as soon as he passed the required physical, which he did on November 8. On November 21, before the policy was issued by Universal, Bra-chett’s husband died.

Universal refused payment on the policy, and Brachett, as beneficiary, sued in Texas state court for breach of contract, alleging the policy to be in force upon her husband’s passing the physical. Judgment was entered for Universal on the basis that Washington had no authority to issue an oral binder on the policy. Thus, no contract existed at the time of death. Subsequently, Brachett filed this suit in the United States district court, based upon the same facts, but alleging negligence of agent Washington in making the oral binder rather than breach of contract. Universal raised and preserved its res judicata defense by motions for summary judgment, directed verdict, and judgment notwithstanding the verdict. The district court rejected the defense and entered judgment on a jury finding of negligence.

Both Texas and federal courts have held res judicata to bar a plaintiff from raising in a second suit involving the same parties and subject matter as a prior suit a claim which with diligence could have been litigated in the prior suit. Hall v. Tower Land and Investment Co., 5 Cir. 1975, 512 F.2d 481, 483; Wasoff v. American Automobile Insurance Co., 5 Cir. 1971, 451 F.2d 767, 769; Seaboard Coast Line Railroad Co. v. Gulf Oil Corp., 5 Cir. 1969, 409 F.2d 879, 881; Midessa Television Co. v. Motion Pictures for Television, Inc., 5 Cir. 1961, 290 F.2d 203, 204; Abbott Laboratories v. Gravis, Tex.1971, 470 S.W.2d 639, 642.

The parties to this suit are identical to those in the prior state court suit. The negligence and contract claims involve the same subject matter, both arising out of precisely the same set of facts and involving the violation of the same primary duty. See Seaboard, supra at 881. Texas Rules of Civil Procedure 48 permits alternative theories, regardless of consistency, to be pleaded in the same suit. Since Brachett could have raised the negligence claim against Universal in the initial state court action, res judicata bars this second suit. [1]

Reversed.

1

. Universal likewise would have prevailed in the collateral estoppel defense which it raised. See Stevenson v. International Paper Co., 5 Cir. 1975, 516 F.2d 103 at p. 110.