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897 F2d 794 Smith v. American Medical Systems Inc

897 F.2d 794

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.

1

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

2

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

3

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

4

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

FRANK J. POLOZOLA, District Judge:

5

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

6

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?

7

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

8

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.

9

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

10

Therefore, the opinion of the district court is AFFIRMED.

*

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