Andrew C. Smith, Plaintiff, v. American Medical Systems, Inc., Defendant-appellee, v. Humana Hospital Corporation, Inc., Defendant-appellant, 897 F.2d 794 (5th Cir. 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.