               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

              _______________________________________

                            No. 98-10904
              _______________________________________


FEDERATED MUTUAL INSURANCE COMPANY,

                                                         Plaintiff,
versus


GRAPEVINE EXCAVATION, INC., ET AL

                                                         Defendants,
GRAPEVINE EXCAVATION, INC.,

                        Defendant-Third Party Plaintiff-Appellant,
versus


MARYLAND LLOYDS, a Lloyds Insurance Company,


                                   Third Party Defendant-Appellee.
                      _______________________

          Appeal from the United States District Court
               for the Northern District of Texas
                     _______________________

                         February 2, 2001

Before JONES and WIENER, Circuit Judges, and WALTER, District
Judge.*

PER CURIAM:

     The district court rendered summary judgment in favor of Third

Party Defendant-Appellee Maryland Lloyds (“Maryland”).   We held on

appeal that Maryland had breached its contract with Third Party


     *
      District Judge of the Western District of Louisiana, sitting
by designation.
Plaintiff-Appellant Grapevine Excavation Inc. (“GEI”), reversed the

district court’s grant of summary judgment and rendered judgment in

favor of GEI,1 and remanded the case for the district court to

determine the appropriate remedy.     From that remand, however, we

withheld the issue of GEI’s entitlement to attorney’s fees incurred

in prosecuting this action, retaining jurisdiction for the limited

purpose of making that determination, and in turn certifying that

question to the Supreme Court of Texas.    We asked:

          In a policyholder’s successful suit for breach of
     contract against an insurance company that is subject to
     one or more of the provisions listed in § 38.006, is the
     insurance company liable to its policyholder for
     reasonable attorney’s fees incurred in pursuing the
     breach-of-contract action, either under an Insurance Code
     provision listed in § 38.006, or under § 36.001 if
     application of one or more of those sections does not
     result in the award of attorney’s fees?2

The Supreme Court of Texas answered in the affirmative:

          We hold that in a policyholder’s successful suit for
     breach of contract against an insurer that is subject to
     the provisions listed in section 38.006, the insurer is
     liable for reasonable attorney’s fees incurred in
     pursuing the breach-of-contract action under section
     38.001 unless the insurer is liable for attorney’s fees
     under another statutory scheme. Accordingly, we answer
     the certified question from the Fifth Circuit Court of
     Appeals yes.3

     1
      197 F.3d 720 (5th Cir. 1999).
     2
      197 F.3d 730, 732 (5th Cir. 1999).
     3
      2000 WL 890386 (Tex. Jul 06, 2000)(NO. 99-1227), rehearing
overruled (Jan 18, 2001). To the extent that the Supreme Court of
Texas’s answer to our question in the instant case conflicts with
our decisions in Lafarge Corp. v. Hartford Cas. Ins. Co., 61 F.3d
389, 402-03 (5th Cir. 1995) and Bituminous Cas. Corp. v. Cacuum
Tanks, Inc., 975 F.2d 1130, 1133 (5th Cir. 1992), those cases are

                                2
GEI is therefore entitled to recover its reasonable attorney’s

fees.

     As the district court originally ruled against GEI, that court

has not had an opportunity to determine the quantum of attorney’s

fees and costs to which GEI is entitled.    We remand this additional

issue with instructions for the district court to conduct such

proceedings as it deems necessary and appropriate to ascertain the

amount of GEI’s reasonable attorney’s fees and costs, and to enter

judgment accordingly.    This panel retains limited jurisdiction to

hear any appeal that might arise from the remand of this issue.



REMANDED   on   issue   of   attorney’s   fees   and   costs;   LIMITED

JURISDICTION RETAINED by this panel to hear future appeals, if any,

regarding attorney’s fees and costs.




no longer binding precedent of this Court.       See FDIC v. Abraham,
137 F.3d 264, 268-69 (5th Cir. 1998).

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