Opinion
No. 88-5527.
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.
In our original opinion, we certified the following question to the Texas Supreme Court:
Smith v. American Medical Systems, Inc., 876 F.2d 434 (5th Cir. 1989).
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:
Humana Hospital Corp. v. American Medical Systems, Inc., 785 S.W.2d 144 (Texas 1990).
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".
Id. at 145.
Therefore, the opinion of the district court is AFFIRMED.