law-indemnity | duty to indemnify | indemnification
INDEMNITY
In Fireman's Insurance Co. v. Burch, 442 S.W.2d 331, 332 (Tex. 1968), the Texas Supreme Court held
that a trial court cannot determine a claim for indemnity before liability is established in the underlying
case because any such opinion would be purely advisory. See also State Farm Lloyds v. C.M.W., 53
S.W.3d 877, 893 (Tex. App.-Dallas 2001, pet. denied). The Court later limited this holding in Farmers
Texas County Mutual Insurance, Co. v. Griffin, 955 S.W.2d 81, 84 (Tex. 1997), concluding that, under
limited circumstances, a claim for indemnity could be litigated while the underlying litigation remained
pending. Specifically, the Court held “the duty to indemnify is justiciable before the insured's liability is
determined in the liability lawsuit when the insurer has the duty to defend and the same reasons that
negate the duty to defend likewise negate any possibility the insurer will ever have a duty to indemnify.”
Griffin, 955 S.W.2d at 84 (emphasis in original). It reasoned that under those circumstances, “no facts
could be developed” in the underlying tort suit that could alter the court's conclusion no duty to
indemnify existed. Id.
SOURCE: DALLAS COURT OF APPEAL - 05-10-00655-CV - 10/19/11
TEXAS SUPREME COURT DECISIONS
Frymire Engineering Co. v. Jomar International, No. 06-0755 (Tex. June 13, 2008)(Willett)
(indemnity, equitable subrogation standing, construction law)
FRYMIRE ENGINEERING COMPANY, INC. BY AND THROUGH REAL PARTY IN INTEREST, LIBERTY MUTUAL
INSURANCE COMPANY v. JOMAR INTERNATIONAL, LTD. AND MIXER S.R.L.; from Dallas County; 5th district
(05-04-01717-CV, 194 SW3d 713, 05-30-06)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Don R. Willett delivered the opinion of the Court.
Ansell Healthcare Products, Inc. v. Owens & Minor, Inc., No. 06-0386 (Tex. Apr. 4, 2008)(per curiam) (product
liability, indemnification for litigation costs)
ANSELL HEALTHCARE PRODUCTS, INC. AND BECTON, DICKINSON AND COMPANY v. OWENS &
MINOR, INC. AND OWENS & MINOR MEDICAL, INC.; from Bowie County; 6th district (06-04-00136-CV,
189 S.W.3d 889, 03-31-06) 2 petitions
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the
trial court.
PETITION FOR REVIEW DENIED IN THE FOLLOWING CASES FROM THE
COURTS OF APPEALS
08-0344
SHELL OIL COMPANY v. E.I. DU PONT DE NEMOURS AND COMPANY; from Harris County; 1st district
(01-07-00118-CV, ___ SW3d ___, 11-15-07, pet. denied Aug 2008)
Opinion below: E. I. du Pont v. Shell Oil Co. (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Jennings)
(breach of indemnification agreement, segregation, defense costs, indemnity claim)
08-0114
AYRES WELDING COMPANY v. CONOCO, INC.; from Harris County; 14th district
(14-06-00532-CV, 243 SW3d 177, 10-11-07, pet. denied July 2008) (indemnity)
08-0201
MAXUS ENERGY CORPORATION v. OCCIDENTAL CHEMICAL CORPORATION; from Dallas County; 5th district
(05-06-01299-CV, 244 SW3d 875, 02-01-08, pet. denied July 2008)(interpretation of an indemnity provision in
a stock purchase agreement)
08-0241
GENERAL STAR INDEMNITY COMPANY v. GULF COAST MARINE ASSOCIATES, INC.; from Harris County;
14th district (14-06-00662-CV, ___ SW3d ___, 02-14-08, pet. denied June 2008) [Dissent in 14-06-00662-CV]
(insurer's duty to indemnify, duty to defend)
08-0139
MARYLAND CASUALTY COMPANY, NATIONAL STANDARD INSURANCE COMPANY, AND MARYLAND
LLOYDS v. SOUTH TEXAS MEDICAL CLINICS, P.A.; from Wharton County; 13th district
(13-06-00089-CV, ___ SW3d ___, 01-10-08, pet. denied 2008)(duty to defend employment suit, summary
judgment, defense costs)
Also see:
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