UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-11233
Summary Calendar
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WESTERN HERITAGE INSURANCE COMPANY,
Plaintiff/Counter-Defendant/Appellee,
versus
STEVE ROBERTSON; JERRY JONES; BOB HEARN doing
business as Bob Hearn Transport,
Defendants,
STEVE ROBERTSON; BOB HEARN doing business
as Bob Hearn Transport,
Defendants/Counter-Claimants,
STEVE ROBERTSON,
Defendant/Counter-Claimant/Appellant.
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No. 97-11306
Summary Calendar
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WESTERN HERITAGE INSURANCE COMPANY,
Plaintiff-Appellee,
versus
STEVE ROBERTSON, ET AL.,
Defendants,
STEVE ROBERTSON; BOB HEARN, doing business
as Bob Hearn Transport,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Texas
(4:96-CV-250-Y)
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August 19, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
As the backdrop to this consolidated appeal, Western Heritage
Insurance Company filed the underlying declaratory judgment action,
claiming that it had no duty to defend or indemnify either Bob
Hearn, Jr. d/b/a Bob Hearn Transport or Jerry Jones for claims
arising out of an automobile accident involving Jones and Steve
Robertson. Robertson appeals the summary judgment in favor of
Western Heritage; and Robertson and Hearn appeal the award of
attorneys’ fees to Western Heritage.
Robertson contends that there is a genuine issue of material
fact as to whether Bob Hearn, Jr. and/or Jerry Jones were covered
by the Western Heritage policy. Based upon our de novo review of
the summary judgment record, we conclude that summary judgment was
appropriate, essentially for the reasons stated by the district
court. See Western Heritage Ins. Co. v. Robertson, No. 4:96-CV-
250-Y (N.D. Tex. 28 Aug. 1997) (unpublished). The summary judgment
evidence showed that the Western Heritage policy was issued to Bob
Hearn, Sr. d/b/a Bob Hearn Transport. There was no competent
summary judgment evidence that Jones was an employee of Hearn
Transport. Likewise, there was no evidence that Bob Hearn, Jr.
(the person against whom Robertson obtained a default judgment in
state court) owned, operated, or worked for Bob Hearn Transport
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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either at the time of the accident or at the time Robertson filed
the state court liability action. Accordingly, Western Heritage
had no duty to defend Jones or Bob Hearn, Jr. in the state court
actions brought against them by Robertson; and Western Heritage is
not liable for the default judgment entered against Bob Hearn, Jr.
in the state court action.
Robertson contends also that the district court erred by
refusing to abate or dismiss this action because of a prior-filed
state court action. For essentially the reasons stated by the
district court in its order denying Robertson’s motion to abate or
dismiss, we hold that the district court did not abuse its
discretion by concluding that abstention was not appropriate. See
Western Heritage Ins. Co. v. Robertson, No. 4:96-CV-250-Y (N.D.
Tex. 25 Feb. 1997) (unpublished).
Robertson contends that the attorney’s fee award is erroneous
because state law does not permit the award of attorneys’ fees;
equity does not support the award; and Western Heritage’s proof was
insufficient. Hearn contends that Western Heritage’s motion for
such fees was untimely; that Western Heritage failed to properly
serve the motion; and that fees were improperly awarded against him
and Robertson, jointly and severally.
Western Heritage sought attorneys’ fees pursuant to the Texas
Declaratory Judgment Act, TEX. CIV. PRAC. & REM. CODE § 37.009 (Texas
DJA). The order awarding fees cites no other basis for the award.
In Utica Lloyd’s of Tex. v. Mitchell, 138 F.3d 208 (5th Cir. 1998)
(decided approximately five months after the district court’s order
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awarding attorneys’ fees), our court held that “a party may not
rely on the Texas DJA to authorize attorney’s fees in a diversity
case because the statute is not substantive law”. Id. at 210.
Accordingly, Western Heritage recognizes that the award must be
reversed, but urges that we reconsider Utica Lloyd’s. Of course,
we cannot do so; one panel of this court may not overrule the
decision of a prior panel in the absence of en banc reconsideration
or a superseding decision of the Supreme Court. E.g., Burlington
Northern R. Railroad v. Brotherhood of Maintenance of Way
Employees, 961 F.2d 86, 89 (5th Cir. 1992), cert. denied, 506 U.S.
1071 (1993).
In the alternative, Western Heritage asserts that the award
can be affirmed on the ground that Robertson and Hearn acted in bad
faith. Because Western Heritage did not seek the award on that
ground in the district court, Robertson and Hearn had no
opportunity to respond to it, and the district court had no
opportunity to consider it. Under those circumstances, we will not
consider the issue for the first time on appeal. Of course, if the
district court wishes to consider that ground on remand, it is free
to do so.
For the foregoing reasons, the summary judgment in favor of
Western Heritage is AFFIRMED. The order awarding attorneys’ fees
is VACATED and the case is REMANDED to the district court.
AFFIRMED, in part; VACATED, in part; and REMANDED
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