Louis H. Oss and Michelle S. Oss v. United Services Automobile Association

ALVIN B. RUBIN, Circuit Judge:

An insured who had been tendered the medical expenses covered by the medical payments clause of his automobile insurance policy seeks to justify his refusal to subrogate the insurer to his rights against a third party tortfeasor on the ground that, while he had recovered all of the tort-feasor’s assets available for compensation, he had still realized far less than the amount of damages suffered. Under Texas law, applicable to this diversity case, this is a sufficient basis on which to withstand summary judgment in favor of the insurer, and we therefore reverse…