Seelin Medical, Inc. v. Invacare Corporation--Appeal from 70th District Court of Ector County

State: Texas

Court: Texas Northern District Court

Docket No: 11-05-00116-CV

Case Date: 09/28/2006

Plaintiff: Cregory Wheeler

Defendant: The State of Texas--Appeal from 114th District Court of Smith County

Preview:Seelin Medical, Inc. v. Invacare Corporation--Appeal from 70th District Court of Ector County
Opinion filed September 28, 2006 Opinion filed September 28, 2006 In The Eleventh Court of Appeals ____________ No. 11-05-00116-CV __________ SEELIN MEDICAL, INC., Appellant V. INVACARE CORPORATION, Appellee On Appeal from the 70th District Court Ector County, Texas Trial Court Cause No. A-115,714 OPINIONONMOTIONFORREHEARING Seelin Medical, Inc. has filed a motion for rehearing asking this court to withdraw and modify our opinion and judgment dated August 31, 2006. Seelin=s motion identifies no error in our opinion or judgment and is, therefore, overruled.

Seelin=s prayer asks in the alternative that we direct the trial court to consider the costs prior to the filing of plaintiff=s third amended petition as well as the costs, fees, and damages incurred by Seelin in prosecution of the indemnity obligation against Invacare. That request raises an issue not properly before us. The trial court=s summary judgment held that Invacare owed Seelin no duty. We have previously held that this was partially incorrect because Invacare did owe a duty to Seelin to indemnify it for claims relating to the walker. Because the trial court has not yet been afforded an opportunity to quantify the extent of this duty and because this requires the resolution of factual issues, it would be improper for us to grant Seelin=s alternative request. The motion is, therefore, overruled. RICK STRANGE JUSTICE September 28, 2006 Panel consists of: Wright, C.J., and

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McCall, J., and Strange, J.

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