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
 

* 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that this opinion should not be published and is not precedent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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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 Co. v. Robertson, No. 4:96-CV250-Y (N.D. Tex. 28 Aug. 1997) (unpublished).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
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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