IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20777

KATHY N. BURDEN, ET AL.,

Plaintiffs

v.

JOHNSON & JOHNSON MEDICAL, ET AL.,

Defendants

ANSELL HEALTHCARE PRODUCTS INC, formerly known as Ansell Inc,

formerly known as Ansell Perry Inc.; BECTON DICKINSON & CO

Defendants - Cross-Defendants - Appellees

OWENS & MINOR MEDICAL INC; OWENS & MINOR INC

Defendants - Cross-Claimants - Appellants

Appeal from the United States District Court 

for the Southern District of Texas

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

In this products liability suit, we certified to the Texas Supreme Court a

question regarding manufacturers’ duties to defend and indemnify distributors.

The Texas Supreme Court has now answered the question, and we resolve the

remaining issues on appeal. For the following reasons, we AFFIRM in part,

United States Court of Appeals

Fifth Circuit

F I L E D

June 9, 2008

Charles R. Fulbruge III

Clerk
No. 04-20777

2

VACATE in part, and REMAND this case to the district court.

BACKGROUND

On January 21, 2000, Kathy Burden, a dental hygienist, and members of

her family filed a products liability action in Texas state court, naming as

defendants the present appellants, appellees, and over thirty other entities. The

Plaintiffs alleged that Burden was injured by latex gloves manufactured and

sold by the named defendants. Appellants Owens & Minor, Inc. and Owens &

Minor Medical, Inc. (collectively, “Owens”) were sued as distributors. Appellees

Ansell Healthcare Products Inc. (“Ansell”) and Becton, Dickinson, and Company

(“BD”) were sued as manufacturers of the allegedly defective gloves. On March

6, 2000, Owens sentletters to several ofthe defendant manufacturers requesting

thatthose manufacturers indemnify Owens pursuantto Texas Civil Practice and

Remedies §82.002, which requires a manufacturer to “indemnify and hold

harmless a seller againstloss arising out of a products liability action” excepting

losses proven to have been caused by the seller. For reasons that are disputed

by the parties, Owens was ultimately defended by its own outside counsel.

The case was removed to the United States District Courtfor the Southern

District of Texas on May 3, 2000. It was subsequently transferred to the United

States District Court for the Eastern District of Pennsylvania as part of the

multidistrict litigation entitled, In re: Latex Glove Products Liability Litigation.

At some point during the proceedings, Owens filed cross-claims for indemnity

against several manufacturers in the case. Eventually, the Plaintiffs voluntarily

dismissed their claims against Owens because they were unable to show that

Owens had sold any of the latex gloves that allegedly injured Burden. All other

defendants were dismissed for the same or similar reasons. There was never a

finding that any party was negligent or caused the Plaintiffs’ alleged injuries.
No. 04-20777

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However, once the multidistrict litigation proceedings were complete and the

instant case was remanded to the Southern District of Texas, Owens pursued

the cross-claims for indemnity that it had brought against four of the

manufacturers, seeking to recover the costs it had incurred in Burden. Owens

subsequently settled with two of the manufacturers, leaving claims for

indemnity against only Ansell and BD. 

In response to Owens’s cross-claim, BD and Ansell both moved for

summary judgment on the adequacy of their offers to indemnify Owens. BD

argued that it had properly offered to defend and indemnify Owens for claims

arising out of the sale of BD latex gloves. Likewise, Ansell maintained that it

had appropriately offered to defend and indemnify Owens for claims related to

Owens’s alleged sale of Ansell latex gloves. Owens claimed that the offers made

by Ansell and BD were for a “partial limited defense” with conditions, rather

than the sort of full defense and indemnity allegedly required by §82.002. The

District Court rejected many of the arguments presented by the manufacturers,

yet ultimately granted BD’s and Ansell’s motions for summary judgment,

holding that both manufacturers had offered to defend and indemnify Owens to

the satisfaction of their duties under §82.002. In so doing, the District Court

terminated the entire case.

Owens brings this appeal, arguing that the District Court erroneously

granted summary judgementin favor of Ansell and BD. According to Owens, the

District Court improperly concluded that a limited defense was all that was

required under §82.002 and that by defending themselves the manufacturers

had adequately defended Owens. Owens requested that the question on this

issue be certified to the Texas Supreme Court. Owens also argued that the

District Court erred in construing in favor of Ansell and BD allegedly disputed
No. 04-20777

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facts regarding the letters exchanged between the parties. Ansell and BD

respond that Owens has misinterpreted the District Court’s ruling. According

to Ansell and BD, the District Court correctly held that Ansell and BD fulfilled

their indemnification obligation because §82.002 only requires a manufacturer

to indemnify a distributor for claims related to the sale of that manufacturer’s

product. Further, Ansell and BD claim that the District Court did not

impermissibly grant summary judgment based upon disputed facts, but rather

correctly drew conclusions of law based upon the undisputed facts presented in

the letters.The parties have stipulated that Owens is an innocent seller and that

BD and Ansell are manufacturers of the latex gloves at issue in this appeal. 

In our previous opinion in this case, Burden v. Johnson & Johnson

Medical, we agreed with Owens on the first issue and decided to certify the

following question to the Texas Supreme Court: 

When a distributor sued in a products liability action seeks

indemnification from less than all of the manufacturers implicated

in the case, does a manufacturer fulfill its obligation under Texas

CivilPractice and Remedies §82.002 by offering indemnification and

defense for only the portion of the distributor's defense concerning

the sale or alleged sale of that specific manufacturer’s product, or

must the manufacturer indemnify and defend the distributor

against all claims and then seek contribution from the remaining

manufacturers. 

447 F.3d 371, 375 (5th Cir. 2006). On March 28, 2008, the Texas Supreme Court

answered the certified question in Owens & Minor v. Ansell Healthcare Prods.,

Inc., --- S.W.3d ---, 2008 WL 821035 (Tex. Mar. 28, 2008) (published). The Texas

Supreme Court concluded that “the product manufacturers satisfy their

statutory duty [under section 82.002] to the seller by offering to indemnify and

defend it only for any costs associated with their own products.” Id. at *7. 
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We now proceed to resolve the remaining issues on appeal after receiving

this guidance from the Texas Supreme Court.

ANALYSIS

Owens’s argument that the manufacturers’ offer to indemnify and defend

the seller only for costs associated with their own products does not satisfy

section 82.002 is now foreclosed by the Texas Supreme Court’s decision. The

district court therefore reached the correct result as dictated by the Texas

Supreme Court in concluding that a manufacturer’s offer to indemnify and

defend the seller for costs associated with their own products satisfies its section

82.002 obligation. 

Apartfrom this first argument, Owens also presents a separate argument

that the district court made an erroneous factual finding when it concluded that

the manufacturers, BD and Ansell, actually made an offer to indemnify and

defend Owens for costs associated with their own products. The district court,

on summary judgment, construed a series of letters between the manufacturers

and the seller as constituting the manufacturers’ offer to indemnify and defend

and the seller’s rejection of that offer. The district court concluded that “[a] fair

reading of the letters shows that the manufacturers were willing to defend

Owens until it was proven that Burden did not use their gloves.”

“This court reviews a district court’s grant of summary judgment de novo,

applying the same standards as the trial court.” Jenkins v. Cleco Power, LLC,

487 F.3d 309, 313 (5th Cir. 2007). “Summary judgment is proper if the evidence

shows that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Id. “The Court views all

evidence in the light most favorable to the non-moving party and draws all

reasonable inferences in that party's favor.” Id. at 313-14. 
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A. Summary Judgment For Ansell was Proper

In a letter to Owens’s counsel on March 24, 2000, responding to Owens’s

query as to whether Ansell was willing to defend Owens in pending litigation,

Ansell,through its counsel, specifically refers to the Burden case, and notes that:

As I have stated, Ansell is committed to defending any claims

related to its products provided that we can agree upon an

appropriate method whereby Ansell Healthcare Products, Inc. only

defends its natural rubber latex gloves in this litigation.

The letter also states:

While Ansell is committed to defending any claims relating to its latex

gloves in accordance with its contractual obligations, Ansell cannot defend

Owens & Minor, Inc. with respect to distribution of other manufacturer’s

natural rubber latex gloves.

After unequivocally promising Owens a full defense of claims relating to its own

latex gloves in the Burden litigation, Ansell’s counsel suggested as “prudent” to

waitto see if any agreementis reached by pending negotiations. Ansell’s counsel

was merely suggesting this course of action: 

We therefore suggest that we defer any further discussions between

our respective clients until such time as there is some direction from

the manufacturers’ and distributors’ group as to whether a

resolution can be arrived at regarding the distributors’ tender of

defense.

(emphasis added). Ansell’s counsel finishes the letter stating, “[i]f you do not

agree with this course of action, please call me so that we can discuss this matter

further.” Ansell’s offer to defend is fully consistent with the statutory obligation

under section 82.002 as construed by the recent Texas Supreme Court decision.

Owens, 2008 WL 821035, at *7 (“[T]he product manufacturers satisfy their

statutory duty [under section 82.002] to the seller by offering to indemnify and
No. 04-20777

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defend it only for any costs associated with their own products.”). Ansell needed

only to offer a defense of claims, as it did, relating to its own products.

Furthermore, Ansell clearly did not condition its defense of claims on the

outcome of the pending negotiations but only suggested that they defer further

discussions about the defense until pending negotiations reach some result.

Ansell also signaled its willingness to discuss and reconsider this suggestion.

Owens never responded to this letter and never asked Ansell to follow up with

its unequivocal offer to defend the claims. We find no ambiguity that Ansell

plainly offered to defend Owens in the Burden suit satisfying its statutory

obligation; the offer to defend was never accepted. We must accept the letter’s

plain meaning. Cf. Valmont Energy Steel, Inc. v. Commercial Union Ins. Co.,

359 F.3d 770, 773 (5th Cir. 2004) (“If the court finds no ambiguity, the court's

duty is to enforce the policy according to its plain meaning.”). Owens’s erroneous

interpretation of the letters does not by itself create any ambiguity. See Forbau

v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994); Valmont, 359 F.3d at 774

(“Courts can only consider the parties’ interpretation of a contract if the court

first determines a contract to be ambiguous.”). Under the plain language of the

letters, we must rule in favor of Ansell; therefore, there is no genuine issue of

material fact and summary judgment was appropriate in favor of Ansell. 

B. Summary Judgement For BD was Improper

Owens does raise a genuine issue of material fact as to BD’s alleged offer

to defend Owens in the Burden suit. It is undisputed that BD, unlike Ansell,

never responded to Owens’s query concerning BD’s defense of claims in the

Burden suit. BD instead suggests it provided Owens a standing offer to defend

its own products in all claims againstits latex gloves in several letters before the
No. 04-20777

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Burden suit was actually filed. Reading the letters in favor of the non-movant

Owens, it is not clear that the letters constituted an offer to defend or indemnify

in the Burden case. Even assuming BD’s interpretation of the letters, it is not

clear that BD extended any valid offer to defend Owens in satisfaction of its

statutory obligation. BD concedes that Owens rejected the terms and conditions

of BD’s standing offer in late 1999 and that Owens had insisted that any defense

and indemnity agreement with BD cover all latex gloves sold by Owens and not

just BD’s latex gloves.

In January 2000, Burden filed her suit against Owens and BD. In March

2000, Owens sent a letter to BD requesting the manufacturers to defend against

the Burden claims. In the letter, Owens stated: 

Owens &Minor has been sued in [Burden] based on productliability

claims that your product injured the plaintiff. As Owens & Minor

did not manufacture or play any role whatsoever in the

manufacturing of your company’s product, we ask that you accept

this defense.

In its appellate brief, BD interprets this Owens letter as “represent[ing] that

each manufacturer had a duty to defend Owens & Minor for its own gloves in the

Burden case.” Appellee BD’s Brief, at 9 (emphasis added). BD thus reads the

letter to suggest that Owens may have changed course and is now only

requesting each manufacturer to defend claims against its own gloves in the

Burden case. Yet, BD never responded to the letter and assumed Owens would

reject BD’s offer of a defense in this new case. However, given Owens’s possible

change in position, BD was arguably incorrect in assuming that Owens would

reject another offer to defend. Moreover, this assumption does not vitiate BD’s

statutory obligation to offer to defend the claims. The previous “standing” offer

to defend in a previous case was rejected. “[U]nder Texas law, once an offer is
No. 04-20777

1 We do not rely nor cite to the Bateman materials found in the appellate record

excerpts and brief. We have also decided to remand the question of whether BD offered to

defend its claims in the Burden case to the district court. Therefore, the motions to strike

the references to the Bateman materials are mooted.

9

rejected, the general rule is that the offer is thereby terminated, and

consequently it cannot be accepted.” Harris v. Mickel, 15 F.3d 428, 431 (5th Cir.

1994). It is therefore entirely plausible that (1) Owens solicited for a defense

under terms different from the past; (2) BD’s past offer, once rejected, can not

constitute a standing offer because it cannot be accepted; and, therefore, (3) BD

did not offer to defend claims as required by section 82.002 and/or improperly

assumed Owens would reject any new offers in the Burden case. Given this

possible interpretation of events based on the existing record, there remains an

issue of material fact as to whether an offer was provided in satisfaction of

section 82.002; thus, summary judgment for BD was improper.1 We vacate the

district court’s summary judgment for BD and remand the case to the district

court to determine if BD offered to defend Owens in the Burden suit in

satisfaction of its statutory obligations and for further proceedings.

C. We Do Not Reach Owens’s Contentions as to Costs and Fees

Finally, Owens contends the district court erred in finding that its

attorney’s fees in the Burden case are unnecessary. The district court found that

Owens’s “fees and costs were unnecessary because the manufacturers’ offers of

defense were adequate.” Since we conclude in accord with the district court that

Ansell is not liable to defend Owens, we do not need reach the issue of fees and

costs, since Ansell’s offer of a defense by Owens was adequate and therefore

satisfied any duty under section 82.002. Owens, 2008 WL 821035, at *7 (“[T]he

product manufacturers satisfy their statutory duty [under section 82.002] to the
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seller by offering to indemnify and defend it only for any costs associated with

their own products.”). Since we are vacating the district court’s summary

judgment for BD and remanding the case to the district court for further

proceedings to determine if BD also satisfied its duties under section 82.002, we

also do not need to reach the fees and costs issue atthis time with regards to BD.

CONCLUSION

Accordingly, we now AFFIRM the district court’s summary judgment for

Ansell and VACATE the district court’s summary judgment for BD. We

REMAND this case to the district court for further proceedings consistent with

this opinion.