Boston Mtl Ins Co v. Gil

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 17, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40919
Summary Calendar
BOSTON MUTUAL INSURANCE COMPANY,
Plaintiff-Appellee,
versus
LAZARO LEONARDO GIL, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:01-CV-61
--------------------
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Lazaro Leonardo Gil, Jr. (“Gil”) appeals the district court’s
grant of summary judgment in favor of Boston Mutual Insurance
Company (“Boston Mutual”). Boston Mutual sought equitable
subrogation for the benefits Gil received from a third party upon
settling his state court personal injury lawsuit. Gil argues that
his mental condition prevented him from adequately representing

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No. 02-40919
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himself in the district court, and that his attorney in the state
court suit failed to negotiate a settlement with Boston Mutual
prior to closing his case. Because Gil did not raise the above
arguments in the district court, the review is for plain error.
United States v. Olano, 507 U.S. 725 (1993). Gil has failed to
establish that the alleged errors affected his substantial rights
in the district court. See United States v. Calverley, 37 F.3d
160, 162-64 (5th Cir. 1994)(en banc). Gil’s contention that he is
entitled to relief because the magistrate judge did not use her
best efforts to settle this case in mediation lacks merit because
the district court did not have an obligation to attempt to settle
Gil’s case in mediation. See E.D. TEX. LOCAL R. APP. H.
This court reviews a grant of summary judgment de novo,
viewing the evidence in the light most favorable to the nonmovant.
See Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998). Texas
law recognizes the doctrine of equitable subrogation. See General
Star Indem. Co. v. Vesta Fire Ins. Corp., 173 F.3d 946, 949 (5th
Cir. 1999)(citation omitted). “To establish a cause of action for
equitable subrogation, a claimant must show that (1) it discharged
a debt for which another party was primarily liable, and (2) it
paid the debt involuntarily.” See Pitts v. Architectural
Utilities, Inc., 1997 WL 119574, *3
(Tex. App.-Dallas 1997)(citation omitted).
The summary judgment evidence provided by Boston Mutual met
its burden of showing that no genuine issue of material fact

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existed. See FED. R. CIV. P. 56(c). The evidence established that
Gil received a settlement from a third party which included
reimbursement for past medical expenses and lost wages.
Consequently, Gil was made whole by his $750,000.00 settlement in
state court. See Ortiz v. Great S. Fire & Cas. Ins. Co., 597
S.W.2d 342, 343 (Tex. 1980).
The district court’s grant of summary judgment in favor of
Boston Mutual is AFFIRMED.

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