Boston Mtl Ins Co v. Gil

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 21, 2003
• Docket: 02-40919
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 17, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-40919 Summary Calendar

BOSTON MUTUAL INSURANCE COMPANY,

Plaintiff-Appellee,

versus

LAZARO LEONARDO GIL, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:01-CV-61 --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Lazaro Leonardo Gil, Jr. (“Gil”) appeals the district court’s

grant of summary judgment in favor of Boston Mutual Insurance

Company (“Boston Mutual”). Boston Mutual sought equitable

subrogation for the benefits Gil received from a third party upon

settling his state court personal injury lawsuit. Gil argues that

his mental condition prevented him from adequately representing

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-40919 -2-

himself in the district court, and that his attorney in the state

court suit failed to negotiate a settlement with Boston Mutual

prior to closing his case. Because Gil did not raise the above

arguments in the district court, the review is for plain error.

United States v. Olano, 507 U.S. 725 (1993). Gil has failed to

establish that the alleged errors affected his substantial rights

in the district court. See United States v. Calverley, 37 F.3d

160, 162-64 (5th Cir. 1994)(en banc). Gil’s contention that he is

entitled to relief because the magistrate judge did not use her

best efforts to settle this case in mediation lacks merit because

the district court did not have an obligation to attempt to settle

Gil’s case in mediation. See E.D. TEX. LOCAL R. APP. H.

This court reviews a grant of summary judgment de novo,

viewing the evidence in the light most favorable to the nonmovant.

See Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998). Texas

law recognizes the doctrine of equitable subrogation. See General

Star Indem. Co. v. Vesta Fire Ins. Corp., 173 F.3d 946, 949 (5th

Cir. 1999)(citation omitted). “To establish a cause of action for

equitable subrogation, a claimant must show that (1) it discharged

a debt for which another party was primarily liable, and (2) it

paid the debt involuntarily.” See Pitts v. Architectural

Utilities, Inc., 1997 WL 119574, *3

(Tex. App.-Dallas 1997)(citation omitted).

The summary judgment evidence provided by Boston Mutual met

its burden of showing that no genuine issue of material fact No. 02-40919 -3-

existed. See FED. R. CIV. P. 56(c). The evidence established that

Gil received a settlement from a third party which included

reimbursement for past medical expenses and lost wages.

Consequently, Gil was made whole by his $750,000.00 settlement in

state court. See Ortiz v. Great S. Fire & Cas. Ins. Co., 597

S.W.2d 342, 343 (Tex. 1980).

The district court’s grant of summary judgment in favor of

Boston Mutual is AFFIRMED.