By Junell, et al. H.B. No. 4
74R2943 DAK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to responsibility for, and recovery of, damages in certain
1-3 civil actions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 33, Civil Practice and Remedies Code, is
1-6 amended to read as follows:
1-7 CHAPTER 33. PROPORTIONATE <COMPARATIVE> RESPONSIBILITY
1-8 <SUBCHAPTER A. COMPARATIVE RESPONSIBILITY>
1-9 Sec. 33.001. DEFINITIONS. In this chapter:
1-10 (1) "Claimant" means a party seeking recovery of
1-11 damages, including a plaintiff, counterclaimant, cross-claimant, or
1-12 third-party plaintiff seeking recovery of damages. In an action in
1-13 which a party seeks recovery of damages for injury to another
1-14 person, damage to the property of another person, death of another
1-15 person, or other harm to another person, "claimant" includes both
1-16 that other person and the party seeking recovery of damages.
1-17 (2) "Defendant" includes any party from whom a
1-18 claimant seeks recovery of damages at the time of the submission of
1-19 the case to the trier of fact.
1-20 (3) "Liable defendant" means a defendant against whom
1-21 a judgment can be entered for at least a portion of the damages
1-22 awarded to the claimant.
1-23 (4) "Percentage of responsibility" means that
1-24 percentage attributed by the trier of fact as provided by Section
2-1 33.004.
2-2 (5) "Settling person" means a person who at the time
2-3 of submission has paid or promised to pay money or anything of
2-4 monetary value to a claimant at any time in consideration of
2-5 potential liability with respect to the harm for which recovery of
2-6 damages is sought.
2-7 Sec. 33.002 <33.001>. PROPORTIONATE <COMPARATIVE>
2-8 RESPONSIBILITY. <(a)> In an action to which this chapter applies
2-9 under Section 33.003 <recover damages for negligence resulting in
2-10 personal injury, property damage, or death or an action for
2-11 products liability grounded in negligence>, a claimant may recover
2-12 damages only if the claimant's <his> percentage of responsibility
2-13 is less than or equal to 50 percent.
2-14 <(b) In an action to recover damages for personal injury,
2-15 property damage, or death in which at least one defendant is found
2-16 liable on a basis of strict tort liability, strict products
2-17 liability, or breach of warranty under Chapter 2, Business &
2-18 Commerce Code, a claimant may recover damages only if his
2-19 percentage of responsibility is less than 60 percent.>
2-20 <(c) In an action in which a claimant seeks damages for harm
2-21 other than personal injury, property damage, or death, arising out
2-22 of any action grounded in negligence, including but not limited to
2-23 negligence relating to any professional services rendered by an
2-24 architect, attorney, certified public accountant, real estate
2-25 broker or agent, or engineer licensed by this state, a claimant may
2-26 recover damages only if his percentage of responsibility is less
2-27 than or equal to 50 percent.>
3-1 Sec. 33.003 <33.002>. APPLICABILITY. (a) Except as
3-2 provided by Subsection (b), this chapter applies to any tort,
3-3 including an action to recover damages for:
3-4 (1) negligence resulting in personal injury, property
3-5 damage, or death;
3-6 (2) products liability grounded in negligence;
3-7 (3) personal injury, property damage, or death in
3-8 which at least one defendant is found liable on a basis of strict
3-9 tort liability, strict products liability, or breach of warranty
3-10 under Chapter 2, Business & Commerce Code;
3-11 (4) harm, other than personal injury, property damage,
3-12 or death, arising out of any action grounded in negligence,
3-13 including negligence relating to any professional services rendered
3-14 by an architect, attorney, certified public accountant, real estate
3-15 broker or agent, or engineer licensed by this state; or
3-16 (5) an intentional act. <This chapter does not apply
3-17 to a claim based on an intentional tort or a claim for exemplary
3-18 damages included in an action to which this chapter otherwise
3-19 applies.>
3-20 (b) This chapter does not apply to:
3-21 (1) an action to collect workers' compensation
3-22 benefits under the workers' compensation laws of this state
3-23 (Subtitle A, Title 5, Labor Code) <(Article 8306 et seq., Vernon's
3-24 Texas Civil Statutes)> or actions against an employer for exemplary
3-25 damages arising out of the death of an employee;
3-26 (2) an action brought under the Deceptive Trade
3-27 Practices-Consumer Protection Act (Subchapter E, Chapter 17,
4-1 Business & Commerce Code) except as specifically provided in
4-2 Section 17.50 of that Act; <or>
4-3 (3) an action brought under Chapter 21, Insurance
4-4 Code; or
4-5 (4) a claim for exemplary damages included in an
4-6 action to which this chapter applies.
4-7 Sec. 33.004 <33.003>. DETERMINATION OF PERCENTAGE OF
4-8 <COMPARATIVE> RESPONSIBILITY. (a) The trier of fact, as to each
4-9 cause of action asserted, shall determine the percentage of
4-10 responsibility for the following persons with respect to their
4-11 causing or contributing to cause in any way, including by negligent
4-12 act or omission, by any defective or unreasonably dangerous
4-13 product, by other conduct or activity that violates an applicable
4-14 legal standard, or by any combination of these, the harm for which
4-15 recovery of damages is sought:
4-16 (1) each claimant;
4-17 (2) each defendant; <and>
4-18 (3) each settling person; and
4-19 (4) any other person, subject to Section 33.005,
4-20 without regard to whether that person was or could have been named
4-21 as a party to the action.
4-22 Sec. 33.005. PERCENTAGE OF RESPONSIBILITY FOR A NONPARTY.
4-23 (a) The trier of fact may determine the percentage of
4-24 responsibility for a person who is not a party to the action or is
4-25 not a settling person only if the defendant files a pleading in the
4-26 action stating:
4-27 (1) the person's name and last known address or, if
5-1 the name and address is not known, the best identification of the
5-2 person that is possible under the circumstances; and
5-3 (2) the basis for believing the person to be wholly or
5-4 partially at fault.
5-5 (b) The defendant must file the pleading required by this
5-6 section not later than the 90th day after the date the defendant is
5-7 served process in the action unless the court grants leave to file
5-8 the pleading at a later time.
5-9 <Sections 33.004-33.010 reserved for expansion>
5-10 <SUBCHAPTER B. CONTRIBUTION>
5-11 <Sec. 33.011. DEFINITIONS. In this chapter:>
5-12 <(1) "Claimant" means a party seeking recovery of
5-13 damages pursuant to the provisions of Section 33.001, including a
5-14 plaintiff, counterclaimant, cross-claimant, or third-party
5-15 plaintiff seeking recovery of damages. In an action in which a
5-16 party seeks recovery of damages for injury to another person,
5-17 damage to the property of another person, death of another person,
5-18 or other harm to another person, "claimant" includes both that
5-19 other person and the party seeking recovery of damages pursuant to
5-20 the provisions of Section 33.001.>
5-21 <(2) "Defendant" includes any party from whom a
5-22 claimant seeks recovery of damages pursuant to the provisions of
5-23 Section 33.001 at the time of the submission of the case to the
5-24 trier of fact.>
5-25 <(3) "Liable defendant" means a defendant against whom
5-26 a judgment can be entered for at least a portion of the damages
5-27 awarded to the claimant.>
6-1 <(4) "Percentage of responsibility" means that
6-2 percentage attributed by the trier of fact to each claimant, each
6-3 defendant, or each settling person with respect to causing or
6-4 contributing to cause in any way, whether by negligent act or
6-5 omission, by any defective or unreasonably dangerous product, by
6-6 other conduct or activity violative of the applicable legal
6-7 standard, or by any combination of the foregoing, the personal
6-8 injury, property damage, death, or other harm for which recovery of
6-9 damages is sought.>
6-10 <(5) "Settling person" means a person who at the time
6-11 of submission has paid or promised to pay money or anything of
6-12 monetary value to a claimant at any time in consideration of
6-13 potential liability pursuant to the provisions of Section 33.001
6-14 with respect to the personal injury, property damage, death, or
6-15 other harm for which recovery of damages is sought.>
6-16 <Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is
6-17 not barred from recovery under Section 33.001, the court shall
6-18 reduce the amount of damages to be recovered by the claimant with
6-19 respect to a cause of action by a percentage equal to the
6-20 claimant's percentage of responsibility.>
6-21 <(b) If the claimant has settled with one or more persons,
6-22 the court shall further reduce the amount of damages to be
6-23 recovered by the claimant with respect to a cause of action by a
6-24 credit equal to one of the following, as elected in accordance with
6-25 Section 33.014:>
6-26 <(1) the sum of the dollar amounts of all settlements;
6-27 or>
7-1 <(2) a dollar amount equal to the sum of the following
7-2 percentages of damages found by the trier of fact:>
7-3 <(A) 5 percent of those damages up to $200,000;>
7-4 <(B) 10 percent of those damages from $200,001
7-5 to $400,000;>
7-6 <(C) 15 percent of those damages from $400,001
7-7 to $500,000; and>
7-8 <(D) 20 percent of those damages greater than
7-9 $500,000.>
7-10 <(c) The amount of damages recoverable by the claimant may
7-11 only be reduced once by the credit provided for in Subsection (b).>
7-12 Sec. 33.006 <33.013>. Amount of Liability. (a) This
7-13 section applies only if a claimant is not barred from recovery
7-14 under Section 33.002.
7-15 (b) A <Except as provided in Subsections (b) and (c), a>
7-16 liable defendant is liable to a claimant only for an amount of
7-17 damages calculated by multiplying the total amount of the
7-18 claimant's damages as found by the trier of fact by the defendant's
7-19 percentage of responsibility as found by the trier of fact.
7-20 (c) A court may not enter a judgment against a liable
7-21 defendant that results in the defendant's being jointly liable for
7-22 the claimant's damages. <the percentage of the damages found by
7-23 the trier of fact equal to that defendant's percentage of
7-24 responsibility with respect to the personal injury, property
7-25 damage, death, or other harm for which the damages are allowed.>
7-26 <(b) Notwithstanding Subsection (a), each liable defendant
7-27 is, in addition to his liability under Subsection (a), jointly and
8-1 severally liable for the damages recoverable by the claimant under
8-2 Section 33.012 with respect to a cause of action if:>
8-3 <(1) the percentage of responsibility attributed to
8-4 the defendant is greater than 20 percent; and>
8-5 <(2) only for a negligence action pursuant to Section
8-6 33.001(a) or (c), the percentage of responsibility attributed to
8-7 the defendant is greater than the percentage of responsibility
8-8 attributed to the claimant.>
8-9 <(c) Notwithstanding Subsection (a), each liable defendant
8-10 is, in addition to his liability under Subsection (a), jointly and
8-11 severally liable for the damages recoverable by the claimant under
8-12 Section 33.012 with respect to a cause of action if:>
8-13 <(1) no percentage of responsibility is attributed to
8-14 the claimant and the percentage of responsibility attributed to the
8-15 defendant is greater than 10 percent; or>
8-16 <(2) the claimant's personal injury, property damage,
8-17 or death is caused by the depositing, discharge, or release into
8-18 the environment of any hazardous or harmful substance as described
8-19 in Subdivision (3); or>
8-20 <(3) the claimant's personal injury, property damage,
8-21 or death resulted from a "toxic tort." "Toxic tort" means a cause
8-22 of action in tort or for breach of implied warranty under Chapter
8-23 2, Business & Commerce Code, arising out of exposure to hazardous
8-24 chemicals, hazardous wastes, hazardous hydrocarbons, similarly
8-25 harmful organic or mineral substances, hazardous radiation sources,
8-26 and other similarly harmful substances (which usually, but need not
8-27 necessarily, arise in the work place), but not including any "drug"
9-1 as defined in Section 81.001(3), Civil Practice and Remedies Code.>
9-2 (d) This section does not create a cause of action.
9-3 <Sec. 33.014. ELECTION OF CREDIT FOR SETTLEMENTS. (a) If a
9-4 claimant has settled with one or more persons, an election must be
9-5 made as to which dollar credit is to be applied under Section
9-6 33.012(b). This election shall be made by any defendant filing a
9-7 written election before the issues of the action are submitted to
9-8 the trier of fact and, when made, shall be binding on all
9-9 defendants. If no defendant makes this election or if conflicting
9-10 elections are made, all defendants are considered to have elected
9-11 Subdivision (2) of Section 33.012(b).>
9-12 <Sec. 33.015. CONTRIBUTION. (a) If a defendant who is
9-13 jointly and severally liable under Section 33.013 pays a percentage
9-14 of the damages for which the defendant is jointly and severally
9-15 liable greater than his percentage of responsibility, that
9-16 defendant has a right of contribution for the overpayment against
9-17 each other liable defendant to the extent that the other liable
9-18 defendant has not paid the percentage of the damages found by the
9-19 trier of fact equal to that other defendant's percentage of
9-20 responsibility.>
9-21 <(b) As among themselves, each of the defendants who is
9-22 jointly and severally liable under Section 33.013 is liable for the
9-23 damages recoverable by the claimant under Section 33.012 in
9-24 proportion to his respective percentage of responsibility. If a
9-25 defendant who is jointly and severally liable pays a larger
9-26 proportion of those damages than is required by his percentage of
9-27 responsibility, that defendant has a right of contribution for the
10-1 overpayment against each other defendant with whom he is jointly
10-2 and severally liable under Section 33.013 to the extent that the
10-3 other defendant has not paid the proportion of those damages
10-4 required by that other defendant's percentage of responsibility.>
10-5 <(c) If for any reason a liable defendant does not pay or
10-6 contribute the portion of the damages required by his percentage of
10-7 responsibility, the amount of the damages not paid or contributed
10-8 by that defendant shall be paid or contributed by the remaining
10-9 defendants who are jointly and severally liable for those damages.
10-10 The additional amount to be paid or contributed by each of the
10-11 defendants who is jointly and severally liable for those damages
10-12 shall be in proportion to his respective percentage of
10-13 responsibility.>
10-14 <(d) No defendant has a right of contribution against any
10-15 settling person.>
10-16 <Sec. 33.016. CLAIM AGAINST CONTRIBUTION DEFENDANT. (a) In
10-17 this section, "contribution defendant" means any defendant, counter
10-18 defendant, or third-party defendant from whom any party seeks
10-19 contribution with respect to any portion of damages for which that
10-20 party may be liable, but from whom the claimant seeks no relief at
10-21 the time of submission.>
10-22 <(b) Each liable defendant is entitled to contribution from
10-23 each person who is not a settling person and who is liable to the
10-24 claimant for a percentage of responsibility but from whom the
10-25 claimant seeks no relief at the time of submission. A party may
10-26 assert this contribution right against any such person as a
10-27 contribution defendant in the claimant's action.>
11-1 <(c) The trier of fact shall determine as a separate issue
11-2 or finding of fact the percentage of responsibility with respect to
11-3 each contribution defendant and these findings shall be solely for
11-4 purposes of this section and Section 33.015 and not as a part of
11-5 the percentages of responsibility determined under Section 33.003.
11-6 Only the percentage of responsibility of each defendant and
11-7 contribution defendant shall be included in this determination.>
11-8 <(d) As among liable defendants, including each defendant
11-9 who is jointly and severally liable under Section 33.013, each
11-10 contribution defendant's percentage of responsibility is to be
11-11 included for all purposes of Section 33.015. The amount to be
11-12 contributed by each contribution defendant pursuant to Section
11-13 33.015 shall be in proportion to his respective percentage of
11-14 responsibility relative to the sum of percentages of responsibility
11-15 of all liable defendants and liable contribution defendants.>
11-16 SECTION 2. Section 32.001, Civil Practice and Remedies
11-17 Code, is amended by adding Subsection (c) to read as follows:
11-18 (c) This chapter does not apply to an action to which
11-19 Chapter 33 applies.
11-20 SECTION 3. This Act takes effect September 1, 1995, and
11-21 applies only to a cause of action that accrues on or after that
11-22 date. A cause of action that accrued before the effective date of
11-23 this Act is governed by the law in effect at the time the action
11-24 accrued, and that law is continued in effect for that purpose.
11-25 SECTION 4. The importance of this legislation and the
11-26 crowded condition of the calendars in both houses create an
11-27 emergency and an imperative public necessity that the
12-1 constitutional rule requiring bills to be read on three several
12-2 days in each house be suspended, and this rule is hereby suspended.