897 F.2d 794
Andrew C. SMITH, Plaintiff,v.AMERICAN MEDICAL SYSTEMS, INC., Defendant-Appellee,v.HUMANA HOSPITAL CORPORATION, INC., Defendant-Appellant.
No. 88-5527.
United States Court of Appeals,Fifth Circuit.
April 4, 1990.

1
Richard Francis and Jerry A. Gibson, Plunkett, Gibson & Allen, San Antonio, Tex., for defendant-appellant.


2
John Milano, Jr., Thornton, Summers, Biechlin, Dunham & Brown, San Antonio, Tex., for defendant-appellee.


3
Appeal from the United States District Court for the Western District of Texas;  Edward C. Prado, District Judge.


4
Before WILLIAMS and GARWOOD, Circuit Judges, and POLOZOLA,* District Judge.

FRANK J. POLOZOLA, District Judge:

5
In our original opinion,1 we certified the following question to the Texas Supreme Court:


6
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?


7
In response to our certification, the Texas Supreme Court has ruled as follows:2


8
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.


9
For the reasons stated previously, our answer to the certified question is "no".3


10
Therefore, the opinion of the district court is AFFIRMED.



*
 District Judge of the Middle District of Louisiana, sitting by designation


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


