897 F.2d 794
Andrew C. SMITH, Plaintiff,
AMERICAN MEDICAL SYSTEMS, INC., Defendant-Appellee,
HUMANA HOSPITAL CORPORATION, INC., Defendant-Appellant.
United States Court of Appeals,
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
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.