Federated Mutual Insurance v. Grapevine Excavation, Inc.

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).

3