Seelin Medical, Inc. v. Invacare Corporation

Opinion

Opinion filed September 28, 2006

Opinion filed September 28, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00116-CV

                                                    __________

                                  SEELIN MEDICAL, INC., Appellant

                                                             V.

                               INVACARE CORPORATION, Appellee

                                          On Appeal from the 70th District Court

                                                           Ector County, Texas

                                                Trial Court Cause No. A-115,714

                         O P I N I O N   O N   M O T I O N   F O R   R E H E A R I N G

Seelin Medical, Inc. has filed a motion for rehearing asking this court to withdraw and modify our opinion and judgment dated August 31, 2006.  Seelin=s motion identifies no error in our opinion or judgment and is, therefore, overruled.

Seelin=s prayer asks in the alternative that we direct the trial court to consider the costs prior to the filing of plaintiff=s third amended petition as well as the costs, fees, and damages incurred by Seelin in prosecution of the indemnity obligation against Invacare.  That request raises an issue not properly before us.  The trial court=s summary judgment held that Invacare owed Seelin no duty.  We have previously held that this was partially incorrect because Invacare did owe a duty to Seelin to indemnify it for claims relating to the walker.  Because the trial court has not yet been afforded an opportunity to quantify the extent of this duty and because this requires the resolution of factual issues, it would be improper for us to grant Seelin=s alternative request.  The motion is, therefore, overruled.

RICK STRANGE

JUSTICE

September 28, 2006

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.