Andrew C. Smith v. American Medical Systems, Inc. v. Humana Hospital Corporation, Inc.

897 F.2d 794, 1990 U.S. App. LEXIS 4768, 1990 WL 28664

Opinion

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.

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.