BILL ANALYSIS
S.B. 28
By: Sibley (Junell)
05-01-95
Committee Report (Amended)
BACKGROUND
Chapter 33, Civil Practice and Remedies Code, sets out the
application of joint and several liability which governs how
percentages of liability in a civil action are determined and
attributed to defendants in a civil lawsuit. The doctrine of joint
and several liability applies when more than one defendant
tortiously contributed to a plaintiff's injuries. The joint and
several doctrine allows plaintiffs to recover the full amount of
the damages arising from injury from any one or any combination of
the defendants who tortiously contributed to the injury. The
plaintiff cannot recover in the aggregate more than the full amount
of the damages, nor can a defendant be made part of any recovery
unless that defendant is found fully liable by the judge or jury.
A defendant is held liable for harm if the fact finder determines
that defendant's wrongful conduct was an actual and proximate cause
of the entire injury. That is, "but for" the defendant's action,
the injury would not have occurred. After such a finding is made,
an allocation may be made to each person who has similarly caused
the plaintiff's entire injury.
The plaintiff is entitled to one recovery for the single injury.
A plaintiff is permitted to collect one judgment from either
defendant. The culpable defendants are permitted to exert rights
against one another for financial contribution to that recovery.
Under current law, a business may be held responsible not only for
its own conduct, but also for someone else's.
PURPOSE
S.B. 28 sets forth the procedure for recovering damages in certain
civil actions and limits the conditions under which a court is
authorized to find a defendant jointly and severally liable for a
claimant's damages.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 33, Civil Practice and Remedies Code, as
follows:
CHAPTER 33. New heading: PROPORTIONATE RESPONSIBILITY
SUBCHAPTER A. New heading: PROPORTIONATE RESPONSIBILITY
Sec. 33.001. New heading: PROPORTIONATE RESPONSIBILITY.
Created from existing Section 33.001. Prohibits a claimant
from recovering damages if the claimant's percentage of
responsibility is greater than 50 percent. Deletes
Subsections (b) and (c) to eliminate the distinction between
claimant's ability to recover damages for negligence, personal
injury, and other forms of harm.
Sec. 33.002. APPLICABILITY. (a) Provides that this chapter
applies to any cause of action based on a tort in which a
defendant, settling person, or responsible third party is
found responsible for a percentage of the harm for which
relief is sought, except as provided by Subsections (b) and
(c).
(b) Requires a defendant who, with specific intent to do
harm to others, acts in concert with another person to
engage in the conduct described in the following sections of
the Penal Code, to be jointly and severally liable with such
other person for the damages legally recoverable by the
claimant that were proximately caused by such conduct:
Sections 19.02 (murder), 19.03 (capital murder), 20.04
(aggravated kidnapping), 22.02 (aggravated assault), 22.011
(sexual assault), 22.021 (aggravated sexual assault), 22.04
(injury to child, elderly individual or disabled
individual), 32.21 (forgery), 32.43 (commercial bribery),
32.45 (misapplication of fiduciary property or property of
a financial institution), 32.46 (securing execution of a
document by deception), 32.47 (fraudulent destruction,
removal, or concealment of writing), or conduct described in
Chapter 31 in terms of a third degree felony or higher.
(c) Provides that this chapter does not apply to (1) an
action to collect workers' compensation benefits under the
workers' compensation laws of this state, or actions against
an employer for exemplary damages arising out of the death
of an employee or (2) a claim for exemplary damages included
in an action to which this chapter otherwise applies.
Deletes a provision providing that this Act does not apply
to an action brought under Chapter 17E, Business and
Commerce Code or an action brought under Chapter 21,
Insurance Code.
(d) Prohibits Subsection (b) from applying unless the
claimant proves the defendant acted or omitted to act with
intent to do harm, as defined in this section, unless
otherwise provided for in certain sections of the Penal
Code.
(e) Provides that a person acts with intent to do harm with
respect to the nature and result of the person's conduct
when it is the person's conscious effort or desire to engage
in such conduct for the purpose of doing substantial harm to
others.
(f) Prohibits anything herein from requiring a submission to
the jury of a question regarding conduct by any party absent
sufficient evidence to support such submission.
(g) Prohibits making the jury aware through voir dire,
introduction into evidence, instruction, or any other means,
that the conduct to which Subsection (b) applies is defined
by the Penal Code.
Sec. 33.003. New heading: DETERMINATION OF PERCENTAGE OF
RESPONSIBILITY. Adds each responsible third party who has
been joined under Section 33.004 to the list of persons for
whom the trier of fact is required to determine the percentage
of responsibility, stated in whole numbers, for causing or
contributing to cause the harm for which damages are sought,
whether by negligent act or omission, by any defective or
unreasonably dangerous product, or by other conduct or
activity that violates an applicable legal standard.
Sec. 33.004. JOINDER OF RESPONSIBLE THIRD PARTIES. (a)
Authorizes a defendant to seek to join a responsible third
party who has not been sued by the claimant prior to the
expiration of limitations on the claimant's claim for damages
against the defendant.
(b) Prohibits anything in this section from affecting the
third party practice as previously recognized in the rules
and statutes of this state with regard to the assertion by
a defendant of rights to contribution or indemnity.
(c) Prohibits the joinder of a seller eligible for indemnity
under Section 82.002, Civil Practice and Remedies Code, as
a responsible third party unless there is alleged against
the seller a claim for relief based on the seller's
negligence, intentional misconduct or other act or omission
for which the seller is independently liable to the
claimant.
(d) Authorizes a third party claim by a defendant to be
filed, even though the claimant's action against the third
party would be barred by limitations, if the third party
claim is filed on or before 30 days after the date the
defendant's answer is required to be filed. This section
shall not apply if the limitations period governing the
claimant's action against the defendant joining the third
party is longer than the limitations period governing the
claimant's action against the responsible third party.
(e) Authorizes a claimant to join a responsible third party,
even though such a joinder would otherwise be barred by
limitations, if the claimant seeks to join the responsible
third party within 60 days after a third party claim is
filed.
SUBCHAPTER B. CONTRIBUTION
Sec. 33.011. DEFINITIONS. Adds definitions of "responsible
third party" and "toxic tort" and redefines "percentage of
responsibility." Provides that the term "responsible third
party" does not include an employer who maintained workers'
compensation insurance coverage at the time of the occurrence
made the basis of claimant's suit, a debtor in bankruptcy
proceedings, or a person or entity against whom the claimant's
claim has been discharged in bankruptcy.
Sec. 33.012. AMOUNT OF RECOVERY. Prohibits this section from
applying to benefits paid by or on behalf of an employer to an
employee pursuant to workers' compensation insurance coverage
in effect at the time of the occurrence made the basis of
claimant's suit.
Sec. 33.013. AMOUNT OF LIABILITY. (a) Makes no changes.
(b) Provides that each liable defendant is jointly and
severally liable for the damages recoverable by the claimant
with respect to a cause of action if the percentage of
responsibility attributed to the defendant is greater than
50, rather than 20 percent. Deletes a provision providing
that a liable defendant is jointly and severally liable for
the damages recoverable by the claimant if, only for a
negligence action, the percentage of responsibility
attributed to the defendant is greater than the percentage
of responsibility attributed to the claimant.
(c) Provides that each liable defendant is jointly and
severally liable for the damages recoverable by the claimant
under Section 33.012 with respect to a cause of action if
the percentage of responsibility attributed to the defendant
is greater than 20, rather than 10 percent and the
claimant's personal injury, property damage, death, or other
harm is caused by any hazardous or harmful substance as
described in Subsection 33.011(7) or the claimant's personal
injury property damage, death, or other harm resulted from
a toxic tort.
(d) Provides that this section does not create a cause of
action.
Sec. 33.014. ELECTION OF CREDIT FOR SETTLEMENTS. Makes no
changes.
Sec. 33.015. CONTRIBUTION. Makes no changes.
Sec. 33.016. CLAIM AGAINST CONTRIBUTION DEFENDANT. Makes no
changes.
Sec. 33.017. PRESERVATION OF EXISTING RIGHTS OF INDEMNITY.
Prohibits anything in this Act from being construed to affect
any rights of indemnity granted to a seller eligible for
indemnity by any statute or from affecting rights of indemnity
granted by contract or at common law. Requires the rights of
indemnification to prevail over the provisions of this chapter
to the extent of any conflict between this chapter or any
right to indemnification granted by any statute, contract, or
common law.
SECTION 2. Effective date: September 1, 1995.
Makes application of this Act prospective.
SECTION 3. Emergency clause.
EXPLANATION OF AMENDMENTS
Committee Amendment #1 strikes Section 33.013(c), Civil Practice
and Remedies Code, and replaces it with a new Section 33.013(c)
which provides that, notwithstanding Subsections (a) and (b), each
liable defendant is, in addition to his liability under Subsection
(a), jointly and severally liable with respect to a cause of action
if: the percentage of responsibility attributed to the defendant is
greater than 20 percent; or the claimant's personal injury,
property damage, death, or other harm is caused by discharging
hazardous substances; or the claimant's personal injury, property
damage, death, or other harm resulted from a toxic tort.
SUMMARY OF COMMITTEE ACTION
Pursuant to public notice posted on March 30, 1995, SB 28 was
considered by the Committee on State Affairs in a public hearing on
April 4, 1995. The Chair laid out SB 28 and recognized Rep. Junell
to explain the bill. The following persons testified in favor of
the bill: Larry York representing Texans for Lawsuit Reform;
Shannon Ratliff representing the Texas Civil Justice League; Albert
G. Brown representing himself; Ronnie Rudd representing the Texas
Society of Certified Public Accountants; Mike Gallagher
representing himself; W. David Bayless Sr. representing himself;
Harry Robards representing himself; Reid Garrey representing Texans
for Lawsuit Reform; Frank Cross representing himself; Bill Nunley
representing Texas Agriculture Aviation Association; Ted B. Roberts
representing Texas Association of Business and Chambers of
Commerce; Richard L. Hardcastle representing Texas Agricultural
Aviation Association; Kathleen M. Kerr, PhD. representing the Texas
Chemical Council; Clint Murchison representing himself; Douglas N.
Gordon representing Hoechst Celanese Corporation; Frederick E.
Rowe, Jr. representing himself; Daniel D. Clinton Jr. representing
the Consultant Engineers Council of Texas/Texas Society of
Professional Engineers; and Paula T. Saizan representing the Texas
Society of CPAs. The following persons testified against the bill:
Tom Smitty Smith representing Public Citizen's Members; Bill Lewis
representing Mothers Against Drunk Driving; Dwayne "Sparky"
Anderson representing Clean Water Action; Bill Whitehurst
representing Texas Trial Lawyers Association; Robert B. Kizer
representing himself; Dan Lambe representing himself; and Rick Levy
representing TX AFL-CIO. The Chair left SB 28 pending. SB 28 was
considered by the Committee on State Affairs in a formal meeting on
May 1, 1995. The Chair laid out SB 28. The committee considered
one amendment to the bill. The amendment was adopted by a record
vote of 9 ayes, 6 nays, 0 pnv, and 0 absent. The bill was reported
favorably as amended with the recommendation that it do pass and be
printed, by a record vote of 15 ayes, 0 nay, 0 pnv, and 0 absent.