S.B. No. 28
AN ACT
1-1 relating to responsibility for, and recovery of, damages in certain
1-2 civil actions.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 33, Civil Practice and Remedies Code, is
1-5 amended to read as follows:
1-6 CHAPTER 33. PROPORTIONATE <COMPARATIVE> RESPONSIBILITY
1-7 SUBCHAPTER A. PROPORTIONATE <COMPARATIVE> RESPONSIBILITY
1-8 Sec. 33.001. PROPORTIONATE <COMPARATIVE> RESPONSIBILITY.
1-9 <(a)> In an action to which this chapter applies <recover damages
1-10 for negligence resulting in personal injury, property damage, or
1-11 death or an action for products liability grounded in negligence>,
1-12 a claimant may not recover damages <only> if his percentage of
1-13 responsibility is greater <less> than <or equal to> 50 percent.
1-14 <(b) In an action to recover damages for personal injury,
1-15 property damage, or death in which at least one defendant is found
1-16 liable on a basis of strict tort liability, strict products
1-17 liability, or breach of warranty under Chapter 2, Business &
1-18 Commerce Code, a claimant may recover damages only if his
1-19 percentage of responsibility is less than 60 percent.>
1-20 <(c) In an action in which a claimant seeks damages for harm
1-21 other than personal injury, property damage, or death, arising out
1-22 of any action grounded in negligence, including but not limited to
1-23 negligence relating to any professional services rendered by an
1-24 architect, attorney, certified public accountant, real estate
2-1 broker or agent, or engineer licensed by this state, a claimant may
2-2 recover damages only if his percentage of responsibility is less
2-3 than or equal to 50 percent.>
2-4 Sec. 33.002. APPLICABILITY. (a) Except as provided by
2-5 Subsections (b) and (c), this chapter applies to any cause of
2-6 action based on tort in which a defendant, settling person, or
2-7 responsible third party is found responsible for a percentage of
2-8 the harm for which relief is sought <This chapter does not apply to
2-9 a claim based on an intentional tort or a claim for exemplary
2-10 damages included in an action to which this chapter otherwise
2-11 applies>.
2-12 (b) Notwithstanding Subsection (a), a defendant who, with
2-13 the specific intent to do harm to others, acts in concert with
2-14 another person to engage in the conduct described in the following
2-15 sections of the Penal Code shall be jointly and severally liable
2-16 with such other person for the damages legally recoverable by the
2-17 claimant that were proximately caused by such conduct:
2-18 (1) Section 19.02 (murder);
2-19 (2) Section 19.03 (capital murder);
2-20 (3) Section 20.04 (aggravated kidnapping);
2-21 (4) Section 22.02 (aggravated assault);
2-22 (5) Section 22.011 (sexual assault);
2-23 (6) Section 22.021 (aggravated sexual assault);
2-24 (7) Section 22.04 (injury to child, elderly
2-25 individual, or disabled individual);
2-26 (8) Section 32.21 (forgery);
2-27 (9) Section 32.43 (commercial bribery);
3-1 (10) Section 32.45 (misapplication of fiduciary
3-2 property or property of financial institution);
3-3 (11) Section 32.46 (securing execution of document by
3-4 deception);
3-5 (12) Section 32.47 (fraudulent destruction, removal,
3-6 or concealment of writing); or
3-7 (13) conduct described in Chapter 31 the punishment
3-8 level for which is a felony of the third degree or higher.
3-9 (c) This chapter does not apply to:
3-10 (1) an action to collect workers' compensation
3-11 benefits under the workers' compensation laws of this state
3-12 (Subtitle A, Title 5, Labor Code) <(Article 8306 et seq., Vernon's
3-13 Texas Civil Statutes)> or actions against an employer for exemplary
3-14 damages arising out of the death of an employee; or
3-15 (2) a claim for exemplary damages included in an
3-16 action to which this chapter otherwise applies <an action brought
3-17 under the Deceptive Trade Practices-Consumer Protection Act
3-18 (Subchapter E, Chapter 17, Business & Commerce Code) except as
3-19 specifically provided in Section 17.50 of that Act; or>
3-20 <(3) an action brought under Chapter 21, Insurance
3-21 Code>.
3-22 (d) Notwithstanding anything to the contrary stated in the
3-23 sections of the Penal Code listed in Subsection (b), that
3-24 subsection shall not apply unless the claimant proves the defendant
3-25 acted or failed to act with intent to do harm as defined in this
3-26 section.
3-27 (e) For purposes of this section, a person acts with intent
4-1 to do harm with respect to the nature of the person's conduct and
4-2 the result of the person's conduct when it is the person's
4-3 conscious effort or desire to engage in such conduct for the
4-4 purpose of doing substantial harm to others.
4-5 (f) Nothing in this section shall require a submission to
4-6 the jury of a question regarding conduct by any party absent
4-7 sufficient evidence to support the submission.
4-8 (g) The jury shall not be made aware through voir dire,
4-9 introduction into evidence, instruction, or any other means that
4-10 the conduct to which Subsection (b) applies is defined by the Penal
4-11 Code.
4-12 Sec. 33.003. DETERMINATION OF PERCENTAGE OF <COMPARATIVE>
4-13 RESPONSIBILITY. The trier of fact, as to each cause of action
4-14 asserted, shall determine the percentage of responsibility, stated
4-15 in whole numbers, for the following persons with respect to each
4-16 person's causing or contributing to cause in any way the harm for
4-17 which recovery of damages is sought, whether by negligent act or
4-18 omission, by any defective or unreasonably dangerous product, by
4-19 other conduct or activity that violates an applicable legal
4-20 standard, or by any combination of these:
4-21 (1) each claimant;
4-22 (2) each defendant; <and>
4-23 (3) each settling person; and
4-24 (4) each responsible third party who has been joined
4-25 under Section 33.004.
4-26 Sec. 33.004. JOINDER OF RESPONSIBLE THIRD PARTIES.
4-27 (a) Except as provided in Subsections (d) and (e), prior to the
5-1 expiration of limitations on the claimant's claim for damages
5-2 against the defendant and on timely motion made for that purpose, a
5-3 defendant may seek to join a responsible third party who has not
5-4 been sued by the claimant.
5-5 (b) Nothing in this section shall affect the third-party
5-6 practice as previously recognized in the rules and statutes of this
5-7 state with regard to the assertion by a defendant of rights to
5-8 contribution or indemnity. Nothing in this section shall affect
5-9 the filing of cross-claims or counterclaims.
5-10 (c) A seller eligible for indemnity under Section 82.002
5-11 shall not be joined as a responsible third party under this section
5-12 unless there is alleged against the seller a claim for relief based
5-13 on the seller's negligence, intentional misconduct, or other act or
5-14 omission, such as negligently modifying or altering a product, for
5-15 which the seller is independently liable to the claimant.
5-16 (d) A third party claim by a defendant under this section
5-17 may be filed, even though the claimant's action against the
5-18 responsible third party would be barred by limitations, if the
5-19 third party claim is filed on or before 30 days after the date the
5-20 defendant's answer is required to be filed. This section shall not
5-21 apply if the limitations period governing the claimant's action
5-22 against the defendant joining the responsible third party is longer
5-23 than the limitations period governing the claimant's action against
5-24 the responsible third party.
5-25 (e) A claimant may join a responsible third party, even
5-26 though such joinder would otherwise be barred by limitations, if
5-27 the claimant seeks to join the responsible third party not later
6-1 than 60 days after a third party claim is filed under Subsection
6-2 (d).
6-3 SUBCHAPTER B. CONTRIBUTION
6-4 Sec. 33.011. DEFINITIONS. In this chapter:
6-5 (1) "Claimant" means a party seeking recovery of
6-6 damages pursuant to the provisions of Section 33.001, including a
6-7 plaintiff, counterclaimant, cross-claimant, or third-party
6-8 plaintiff seeking recovery of damages. In an action in which a
6-9 party seeks recovery of damages for injury to another person,
6-10 damage to the property of another person, death of another person,
6-11 or other harm to another person, "claimant" includes both that
6-12 other person and the party seeking recovery of damages pursuant to
6-13 the provisions of Section 33.001.
6-14 (2) "Defendant" includes any party from whom a
6-15 claimant seeks recovery of damages pursuant to the provisions of
6-16 Section 33.001 at the time of the submission of the case to the
6-17 trier of fact.
6-18 (3) "Liable defendant" means a defendant against whom
6-19 a judgment can be entered for at least a portion of the damages
6-20 awarded to the claimant.
6-21 (4) "Percentage of responsibility" means that
6-22 percentage, stated in whole numbers, attributed by the trier of
6-23 fact to each claimant, each defendant, <or> each settling person,
6-24 or each responsible third party with respect to causing or
6-25 contributing to cause in any way, whether by negligent act or
6-26 omission, by any defective or unreasonably dangerous product, by
6-27 other conduct or activity violative of the applicable legal
7-1 standard, or by any combination of the foregoing, the personal
7-2 injury, property damage, death, or other harm for which recovery of
7-3 damages is sought.
7-4 (5) "Settling person" means a person who at the time
7-5 of submission has paid or promised to pay money or anything of
7-6 monetary value to a claimant at any time in consideration of
7-7 potential liability pursuant to the provisions of Section 33.001
7-8 with respect to the personal injury, property damage, death, or
7-9 other harm for which recovery of damages is sought.
7-10 (6)(A) "Responsible third party" means any person to
7-11 whom all of the following apply:
7-12 (i) the court in which the action was
7-13 filed could exercise jurisdiction over the person;
7-14 (ii) the person could have been, but was
7-15 not, sued by the claimant; and
7-16 (iii) the person is or may be liable to
7-17 the plaintiff for all or a part of the damages claimed against the
7-18 named defendant or defendants.
7-19 (B) The term "responsible third party" does not
7-20 include:
7-21 (i) the claimant's employer, if the
7-22 employer maintained workers' compensation insurance coverage, as
7-23 defined by Section 401.011(44), Labor Code, at the time of the act,
7-24 event, or occurrence made the basis of the claimant's suit; or
7-25 (ii) a person or entity that is a debtor
7-26 in bankruptcy proceedings or a person or entity against whom this
7-27 claimant's claim has been discharged in bankruptcy, except to the
8-1 extent that liability insurance or other source of third party
8-2 funding may be available to pay claims asserted against the debtor.
8-3 (7) "Toxic tort" means a cause of action in tort or
8-4 for breach of implied warranty under Chapter 2, Business & Commerce
8-5 Code, for damages of any kind arising out of or caused by exposure
8-6 to or the deposit, discharge, or release into the environment of
8-7 hazardous chemicals, hazardous wastes, hazardous hydrocarbons,
8-8 similarly harmful organic or mineral substances, hazardous
8-9 radiation sources, and other similarly harmful substances,
8-10 including torts arising out of exposure to such substances in the
8-11 work place, but not including any "drug" as defined in Section
8-12 82.005(d)(2).
8-13 Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is
8-14 not barred from recovery under Section 33.001, the court shall
8-15 reduce the amount of damages to be recovered by the claimant with
8-16 respect to a cause of action by a percentage equal to the
8-17 claimant's percentage of responsibility.
8-18 (b) If the claimant has settled with one or more persons,
8-19 the court shall further reduce the amount of damages to be
8-20 recovered by the claimant with respect to a cause of action by a
8-21 credit equal to one of the following, as elected in accordance with
8-22 Section 33.014:
8-23 (1) the sum of the dollar amounts of all settlements;
8-24 or
8-25 (2) a dollar amount equal to the sum of the following
8-26 percentages of damages found by the trier of fact:
8-27 (A) 5 percent of those damages up to $200,000;
9-1 (B) 10 percent of those damages from $200,001 to
9-2 $400,000;
9-3 (C) 15 percent of those damages from $400,001 to
9-4 $500,000; and
9-5 (D) 20 percent of those damages greater than
9-6 $500,000.
9-7 (c) The amount of damages recoverable by the claimant may
9-8 only be reduced once by the credit provided for in Subsection (b).
9-9 (d) This section shall not apply to benefits paid by or on
9-10 behalf of an employer to an employee pursuant to workers'
9-11 compensation insurance coverage, as defined in Section 401.011(44),
9-12 Labor Code, in effect at the time of the act, event, or occurrence
9-13 made the basis of claimant's suit.
9-14 Sec. 33.013. AMOUNT OF LIABILITY. (a) Except as provided
9-15 in Subsections (b) and (c), a liable defendant is liable to a
9-16 claimant only for the percentage of the damages found by the trier
9-17 of fact equal to that defendant's percentage of responsibility with
9-18 respect to the personal injury, property damage, death, or other
9-19 harm for which the damages are allowed.
9-20 (b) Notwithstanding Subsection (a), each liable defendant
9-21 is, in addition to his liability under Subsection (a), jointly and
9-22 severally liable for the damages recoverable by the claimant under
9-23 Section 33.012 with respect to a cause of action if<:>
9-24 <(1)> the percentage of responsibility attributed to
9-25 the defendant is greater than 50 <20> percent<; and>
9-26 <(2) only for a negligence action pursuant to Section
9-27 33.001(a) or (c), the percentage of responsibility attributed to
10-1 the defendant is greater than the percentage of responsibility
10-2 attributed to the claimant>.
10-3 (c) Notwithstanding Subsections <Subsection> (a) and (b),
10-4 each liable defendant is, in addition to his liability under
10-5 Subsection (a), jointly and severally liable for the damages
10-6 recoverable by the claimant under Section 33.012 with respect to a
10-7 cause of action if<:>
10-8 <(1) no percentage of responsibility is attributed to
10-9 the claimant and> the percentage of responsibility attributed to
10-10 the defendant is equal to or greater than 15 <10> percent and:<;
10-11 or>
10-12 (1) <(2)> the claimant's personal injury, property
10-13 damage, <or> death, or other harm is caused by the depositing,
10-14 discharge, or release into the environment of any hazardous or
10-15 harmful substance as described in Section 33.011(7) <Subdivision
10-16 (3)>; or
10-17 (2) <(3)> the claimant's personal injury, property
10-18 damage, <or> death, or other harm resulted from a <">toxic tort.<"
10-19 "Toxic tort" means a cause of action in tort or for breach of
10-20 implied warranty under Chapter 2, Business & Commerce Code, arising
10-21 out of exposure to hazardous chemicals, hazardous wastes, hazardous
10-22 hydrocarbons, similarly harmful organic or mineral substances,
10-23 hazardous radiation sources, and other similarly harmful substances
10-24 (which usually, but need not necessarily, arise in the work place),
10-25 but not including any "drug" as defined in Section 81.001(3), Civil
10-26 Practice and Remedies Code.>
10-27 (d) This section does not create a cause of action.
11-1 Sec. 33.014. ELECTION OF CREDIT FOR SETTLEMENTS. <(a)> If
11-2 a claimant has settled with one or more persons, an election must
11-3 be made as to which dollar credit is to be applied under Section
11-4 33.012(b). This election shall be made by any defendant filing a
11-5 written election before the issues of the action are submitted to
11-6 the trier of fact and, when made, shall be binding on all
11-7 defendants. If no defendant makes this election or if conflicting
11-8 elections are made, all defendants are considered to have elected
11-9 Subdivision (2) of Section 33.012(b).
11-10 Sec. 33.015. CONTRIBUTION. (a) If a defendant who is
11-11 jointly and severally liable under Section 33.013 pays a percentage
11-12 of the damages for which the defendant is jointly and severally
11-13 liable greater than his percentage of responsibility, that
11-14 defendant has a right of contribution for the overpayment against
11-15 each other liable defendant to the extent that the other liable
11-16 defendant has not paid the percentage of the damages found by the
11-17 trier of fact equal to that other defendant's percentage of
11-18 responsibility.
11-19 (b) As among themselves, each of the defendants who is
11-20 jointly and severally liable under Section 33.013 is liable for the
11-21 damages recoverable by the claimant under Section 33.012 in
11-22 proportion to his respective percentage of responsibility. If a
11-23 defendant who is jointly and severally liable pays a larger
11-24 proportion of those damages than is required by his percentage of
11-25 responsibility, that defendant has a right of contribution for the
11-26 overpayment against each other defendant with whom he is jointly
11-27 and severally liable under Section 33.013 to the extent that the
12-1 other defendant has not paid the proportion of those damages
12-2 required by that other defendant's percentage of responsibility.
12-3 (c) If for any reason a liable defendant does not pay or
12-4 contribute the portion of the damages required by his percentage of
12-5 responsibility, the amount of the damages not paid or contributed
12-6 by that defendant shall be paid or contributed by the remaining
12-7 defendants who are jointly and severally liable for those damages.
12-8 The additional amount to be paid or contributed by each of the
12-9 defendants who is jointly and severally liable for those damages
12-10 shall be in proportion to his respective percentage of
12-11 responsibility.
12-12 (d) No defendant has a right of contribution against any
12-13 settling person.
12-14 Sec. 33.016. CLAIM AGAINST CONTRIBUTION DEFENDANT. (a) In
12-15 this section, "contribution defendant" means any defendant,
12-16 counterdefendant, or third-party defendant from whom any party
12-17 seeks contribution with respect to any portion of damages for which
12-18 that party may be liable, but from whom the claimant seeks no
12-19 relief at the time of submission.
12-20 (b) Each liable defendant is entitled to contribution from
12-21 each person who is not a settling person and who is liable to the
12-22 claimant for a percentage of responsibility but from whom the
12-23 claimant seeks no relief at the time of submission. A party may
12-24 assert this contribution right against any such person as a
12-25 contribution defendant in the claimant's action.
12-26 (c) The trier of fact shall determine as a separate issue or
12-27 finding of fact the percentage of responsibility with respect to
13-1 each contribution defendant and these findings shall be solely for
13-2 purposes of this section and Section 33.015 and not as a part of
13-3 the percentages of responsibility determined under Section 33.003.
13-4 Only the percentage of responsibility of each defendant and
13-5 contribution defendant shall be included in this determination.
13-6 (d) As among liable defendants, including each defendant who
13-7 is jointly and severally liable under Section 33.013, each
13-8 contribution defendant's percentage of responsibility is to be
13-9 included for all purposes of Section 33.015. The amount to be
13-10 contributed by each contribution defendant pursuant to Section
13-11 33.015 shall be in proportion to his respective percentage of
13-12 responsibility relative to the sum of percentages of responsibility
13-13 of all liable defendants and liable contribution defendants.
13-14 Sec. 33.017. PRESERVATION OF EXISTING RIGHTS OF INDEMNITY.
13-15 Nothing in this chapter shall be construed to affect any rights of
13-16 indemnity granted to a seller eligible for indemnity by Chapter 82,
13-17 the Texas Motor Vehicle Commission Code (Article 4413(36), Vernon's
13-18 Texas Civil Statutes), or any other statute, nor shall it affect
13-19 rights of indemnity granted by contract or at common law. To the
13-20 extent of any conflict between this chapter and any right to
13-21 indemnification granted by Section 82.002, the Texas Motor Vehicle
13-22 Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
13-23 or any other statute, contract, or common law, those rights of
13-24 indemnification shall prevail over the provisions of this chapter.
13-25 SECTION 2. Title 4, Civil Practice and Remedies Code, is
13-26 amended by adding Chapter 95 to read as follows:
13-27 CHAPTER 95. PROPERTY OWNER'S LIABILITY FOR ACTS OF INDEPENDENT
14-1 CONTRACTORS AND AMOUNT OF RECOVERY
14-2 Sec. 95.001. DEFINITIONS. In this chapter:
14-3 (1) "Claim" means a claim for damages caused by
14-4 negligence, including a counterclaim, cross-claim, or third party
14-5 claim.
14-6 (2) "Claimant" means a party making a claim subject to
14-7 this chapter.
14-8 (3) "Property owner" means a person or entity that
14-9 owns real property primarily used for commercial or business
14-10 purposes.
14-11 Sec. 95.002. APPLICABILITY. This chapter applies only to a
14-12 claim:
14-13 (1) against a property owner, contractor, or
14-14 subcontractor for personal injury, death, or property damage to an
14-15 owner, a contractor, or a subcontractor or an employee of a
14-16 contractor or subcontractor; and
14-17 (2) that arises from the condition or use of an
14-18 improvement to real property where the contractor or subcontractor
14-19 constructs, repairs, renovates, or modifies the improvement.
14-20 Sec. 95.003. LIABILITY FOR ACTS OF INDEPENDENT CONTRACTORS.
14-21 A property owner is not liable for personal injury, death, or
14-22 property damage to a contractor, subcontractor, or an employee of a
14-23 contractor or subcontractor who constructs, repairs, renovates, or
14-24 modifies an improvement to real property, including personal
14-25 injury, death, or property damage arising from the failure to
14-26 provide a safe workplace unless:
14-27 (1) the property owner exercises or retains some
15-1 control over the manner in which the work is performed, other than
15-2 the right to order the work to start or stop or to inspect progress
15-3 or receive reports; and
15-4 (2) the property owner had actual knowledge of the
15-5 danger or condition resulting in the personal injury, death, or
15-6 property damage and failed to adequately warn.
15-7 Sec. 95.004. EVIDENCE ADMISSIBLE. In the trial of a case
15-8 against a contractor, subcontractor, or property owner for personal
15-9 injury, property damage, or death to a contractor, a subcontractor,
15-10 or an employee of a contractor or subcontractor that arises from
15-11 the condition or use of an improvement to real property where the
15-12 contractor or subcontractor constructs, repairs, renovates, or
15-13 modifies the improvement, the trial judge, outside the presence of
15-14 the jury, shall receive evidence of workers' compensation benefits
15-15 paid and shall deduct the amount of the benefits from the damages
15-16 awarded by the trier of fact. The deduction for workers'
15-17 compensation benefits does not apply unless the workers'
15-18 compensation carrier's subrogation rights have been waived.
15-19 SECTION 3. This Act takes effect September 1, 1995, and
15-20 applies to all causes of action that accrue on or after that date.
15-21 This Act applies to all causes of action that accrued before the
15-22 effective date of this Act and on which suit is filed on or after
15-23 September 1, 1996. A cause of action that accrued before the
15-24 effective date of this Act and on which suit is filed prior to
15-25 September 1, 1996, is governed by the law in effect immediately
15-26 prior to the effective date of this Act and that law is continued
15-27 in effect for that purpose.
16-1 SECTION 4. Notwithstanding Section 3 of this Act, Chapter
16-2 95, Civil Practice and Remedies Code, as added by this Act, takes
16-3 effect September 1, 1996, and applies only to a cause of action
16-4 that accrues on or after that date.
16-5 SECTION 5. The importance of this legislation and the
16-6 crowded condition of the calendars in both houses create an
16-7 emergency and an imperative public necessity that the
16-8 constitutional rule requiring bills to be read on three several
16-9 days in each house be suspended, and this rule is hereby suspended.