897 F.2d 794 (5th Cir. 1990), 88-5527, Smith v. American Medical Systems

Docket Nº:88-5527.
Citation:897 F.2d 794
Party Name:Andrew C. SMITH, Plaintiff, v. AMERICAN MEDICAL SYSTEMS, INC., Defendant-Appellee, v. HUMANA HOSPITAL CORPORATION, INC., Defendant-Appellant.
Case Date:April 04, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 794

897 F.2d 794 (5th Cir. 1990)

Andrew C. SMITH, Plaintiff,

v.

AMERICAN MEDICAL SYSTEMS, INC., Defendant-Appellee,

v.

HUMANA HOSPITAL CORPORATION, INC., Defendant-Appellant.

No. 88-5527.

United States Court of Appeals, Fifth Circuit

April 4, 1990

Richard Francis and Jerry A. Gibson, Plunkett, Gibson & Allen, San Antonio, Tex., for defendant-appellant.

John Milano, Jr., Thornton, Summers, Biechlin, Dunham & Brown, San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas; Edward C. Prado, District Judge.

Before WILLIAMS and GARWOOD, Circuit Judges, and POLOZOLA, [*] District Judge.

FRANK J. POLOZOLA, District Judge:

In our original opinion, 1 we certified the following question to the Texas Supreme Court:

Under Texas law, is a seller of a product entitled to indemnification from the manufacturer for attorney's fees incurred by seller during the litigation where the manufacturer settles the case with the plaintiff before a judicial determination of the liability of the parties is made?

In response to our certification, the Texas Supreme Court has ruled as follows: 2

Page 795

In this cause, there has been no judicial finding that American Medical Systems was negligent or that the prosthesis was unreasonably dangerous. In other words, there has been no judicial determination--or admission--that American Medical Systems was, or could have been legally liable to Smith in any way. Unless and until there is such a determination, Humana Hospital's claim for indemnity is premature.

For the reasons stated previously, our answer to the certified question is "no". 3

Therefore, the opinion of the district court is AFFIRMED.


Notes:

[*]District Judge of the Middle District of Louisiana, sitting by designation.

[1] Smith v. American Medical Systems, Inc., 876 F.2d 434 (5th Cir.1989).

[2] Humana Hospital Corp. v. American Medical Systems, Inc., 785 S.W.2d 144 (Texas 1990).

[3] Id. at 145.


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