Smith v. American Medical Systems, 88-5527
Decision Date | 04 April 1990 |
Docket Number | No. 88-5527,88-5527 |
Parties | Andrew C. SMITH, Plaintiff, v. AMERICAN MEDICAL SYSTEMS, INC., Defendant-Appellee, v. HUMANA HOSPITAL CORPORATION, INC., Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
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.
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
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.
* District Judge of the Middle District of Louisiana, sitting by designation.
3 Id. at 145.
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