By: Sibley, et al. S.B. No. 28
A BILL TO BE ENTITLED
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) Prior to the expiration of limitations on the claimant's claim
5-1 for damages against the defendant and on timely motion made for
5-2 that purpose, a defendant may seek to join a responsible third
5-3 party who has not been sued by the claimant.
5-4 (b) Nothing in this section shall affect the third-party
5-5 practice as previously recognized in the rules and statutes of this
5-6 state with regard to the assertion by a defendant of rights to
5-7 contribution or indemnity.
5-8 (c) A seller eligible for indemnity under Section 82.002
5-9 shall not be joined as a responsible third party under this section
5-10 unless there is alleged against the seller a claim for relief based
5-11 on the seller's negligence, intentional misconduct, or other act or
5-12 omission, such as negligently modifying or altering a product, for
5-13 which the seller is independently liable to the claimant.
5-14 (d) A third party claim by a defendant under this section
5-15 may be filed, even though the claimant's action against the
5-16 responsible third party would be barred by limitations, if the
5-17 third party claim is filed on or before 30 days after the date the
5-18 defendant's answer is required to be filed. This section shall not
5-19 apply if the limitations period governing the claimant's action
5-20 against the defendant joining the responsible third party is longer
5-21 than the limitations period governing the claimant's action against
5-22 the responsible third party.
5-23 (e) A claimant may join a responsible third party, even
5-24 though such joinder would otherwise be barred by limitations, if
5-25 the claimant seeks to join the responsible third party not later
5-26 than 60 days after a third party claim is filed under Subsection
5-27 (d).
6-1 SUBCHAPTER B. CONTRIBUTION
6-2 Sec. 33.011. DEFINITIONS. In this chapter:
6-3 (1) "Claimant" means a party seeking recovery of
6-4 damages pursuant to the provisions of Section 33.001, including a
6-5 plaintiff, counterclaimant, cross-claimant, or third-party
6-6 plaintiff seeking recovery of damages. In an action in which a
6-7 party seeks recovery of damages for injury to another person,
6-8 damage to the property of another person, death of another person,
6-9 or other harm to another person, "claimant" includes both that
6-10 other person and the party seeking recovery of damages pursuant to
6-11 the provisions of Section 33.001.
6-12 (2) "Defendant" includes any party from whom a
6-13 claimant seeks recovery of damages pursuant to the provisions of
6-14 Section 33.001 at the time of the submission of the case to the
6-15 trier of fact.
6-16 (3) "Liable defendant" means a defendant against whom
6-17 a judgment can be entered for at least a portion of the damages
6-18 awarded to the claimant.
6-19 (4) "Percentage of responsibility" means that
6-20 percentage, stated in whole numbers, attributed by the trier of
6-21 fact to each claimant, each defendant, <or> each settling person,
6-22 or each responsible third party with respect to causing or
6-23 contributing to cause in any way, whether by negligent act or
6-24 omission, by any defective or unreasonably dangerous product, by
6-25 other conduct or activity violative of the applicable legal
6-26 standard, or by any combination of the foregoing, the personal
6-27 injury, property damage, death, or other harm for which recovery of
7-1 damages is sought.
7-2 (5) "Settling person" means a person who at the time
7-3 of submission has paid or promised to pay money or anything of
7-4 monetary value to a claimant at any time in consideration of
7-5 potential liability pursuant to the provisions of Section 33.001
7-6 with respect to the personal injury, property damage, death, or
7-7 other harm for which recovery of damages is sought.
7-8 (6)(A) "Responsible third party" means any person to
7-9 whom all of the following apply:
7-10 (i) the court in which the action was
7-11 filed could exercise jurisdiction over the person;
7-12 (ii) the person could have been, but was
7-13 not, sued by the claimant; and
7-14 (iii) the person is or may be liable to
7-15 the plaintiff for all or a part of the damages claimed against the
7-16 named defendant or defendants.
7-17 (B) The term "responsible third party" does not
7-18 include:
7-19 (i) an employer who maintained workers'
7-20 compensation insurance coverage, as defined in Section 401.011(44),
7-21 Labor Code, at the time of the act, event, or occurrence made the
7-22 basis of claimant's suit;
7-23 (ii) a person or entity that is a debtor
7-24 in bankruptcy proceedings; or
7-25 (iii) a person or entity against whom the
7-26 claimant's claim has been discharged in bankruptcy.
7-27 (7) "Toxic tort" means a cause of action in tort or
8-1 for breach of implied warranty under Chapter 2, Business & Commerce
8-2 Code, for damages of any kind arising out of or caused by exposure
8-3 to or the deposit, discharge, or release into the environment of
8-4 hazardous chemicals, hazardous wastes, hazardous hydrocarbons,
8-5 similarly harmful organic or mineral substances, hazardous
8-6 radiation sources, and other similarly harmful substances,
8-7 including torts arising out of exposure to such substances in the
8-8 work place, but not including any "drug" as defined in Section
8-9 82.005(d)(2).
8-10 Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is
8-11 not barred from recovery under Section 33.001, the court shall
8-12 reduce the amount of damages to be recovered by the claimant with
8-13 respect to a cause of action by a percentage equal to the
8-14 claimant's percentage of responsibility.
8-15 (b) If the claimant has settled with one or more persons,
8-16 the court shall further reduce the amount of damages to be
8-17 recovered by the claimant with respect to a cause of action by a
8-18 credit equal to one of the following, as elected in accordance with
8-19 Section 33.014:
8-20 (1) the sum of the dollar amounts of all settlements;
8-21 or
8-22 (2) a dollar amount equal to the sum of the following
8-23 percentages of damages found by the trier of fact:
8-24 (A) 5 percent of those damages up to $200,000;
8-25 (B) 10 percent of those damages from $200,001 to
8-26 $400,000;
8-27 (C) 15 percent of those damages from $400,001 to
9-1 $500,000; and
9-2 (D) 20 percent of those damages greater than
9-3 $500,000.
9-4 (c) The amount of damages recoverable by the claimant may
9-5 only be reduced once by the credit provided for in Subsection (b).
9-6 (d) This section shall not apply to benefits paid by or on
9-7 behalf of an employer to an employee pursuant to workers'
9-8 compensation insurance coverage, as defined in Section 401.011(44),
9-9 Labor Code, in effect at the time of the act, event, or occurrence
9-10 made the basis of claimant's suit.
9-11 Sec. 33.013. AMOUNT OF LIABILITY. (a) Except as provided
9-12 in Subsections (b) and (c), a liable defendant is liable to a
9-13 claimant only for the percentage of the damages found by the trier
9-14 of fact equal to that defendant's percentage of responsibility with
9-15 respect to the personal injury, property damage, death, or other
9-16 harm for which the damages are allowed.
9-17 (b) Notwithstanding Subsection (a), each liable defendant
9-18 is, in addition to his liability under Subsection (a), jointly and
9-19 severally liable for the damages recoverable by the claimant under
9-20 Section 33.012 with respect to a cause of action if<:>
9-21 <(1)> the percentage of responsibility attributed to
9-22 the defendant is greater than 50 <20> percent<; and>
9-23 <(2) only for a negligence action pursuant to Section
9-24 33.001(a) or (c), the percentage of responsibility attributed to
9-25 the defendant is greater than the percentage of responsibility
9-26 attributed to the claimant>.
9-27 (c) Notwithstanding Subsections <Subsection> (a) and (b),
10-1 each liable defendant is, in addition to his liability under
10-2 Subsection (a), jointly and severally liable for the damages
10-3 recoverable by the claimant under Section 33.012 with respect to a
10-4 cause of action if:
10-5 (1) <no percentage of responsibility is attributed to
10-6 the claimant and> the percentage of responsibility attributed to
10-7 the defendant is greater than 20 <10> percent; and <or>
10-8 <(2)> the claimant's personal injury, property damage,
10-9 <or> death, or other harm is caused by the depositing, discharge,
10-10 or release into the environment of any hazardous or harmful
10-11 substance as described in Section 33.011(7) <Subdivision (3)>; or
10-12 (2) <(3)> the claimant's personal injury, property
10-13 damage, <or> death, or other harm resulted from a <">toxic tort.<"
10-14 "Toxic tort" means a cause of action in tort or for breach of
10-15 implied warranty under Chapter 2, Business & Commerce Code, arising
10-16 out of exposure to hazardous chemicals, hazardous wastes, hazardous
10-17 hydrocarbons, similarly harmful organic or mineral substances,
10-18 hazardous radiation sources, and other similarly harmful substances
10-19 (which usually, but need not necessarily, arise in the work place),
10-20 but not including any "drug" as defined in Section 81.001(3), Civil
10-21 Practice and Remedies Code.>
10-22 (d) This section does not create a cause of action.
10-23 Sec. 33.014. ELECTION OF CREDIT FOR SETTLEMENTS. <(a)> If
10-24 a claimant has settled with one or more persons, an election must
10-25 be made as to which dollar credit is to be applied under Section
10-26 33.012(b). This election shall be made by any defendant filing a
10-27 written election before the issues of the action are submitted to
11-1 the trier of fact and, when made, shall be binding on all
11-2 defendants. If no defendant makes this election or if conflicting
11-3 elections are made, all defendants are considered to have elected
11-4 Subdivision (2) of Section 33.012(b).
11-5 Sec. 33.015. CONTRIBUTION. (a) If a defendant who is
11-6 jointly and severally liable under Section 33.013 pays a percentage
11-7 of the damages for which the defendant is jointly and severally
11-8 liable greater than his percentage of responsibility, that
11-9 defendant has a right of contribution for the overpayment against
11-10 each other liable defendant to the extent that the other liable
11-11 defendant has not paid the percentage of the damages found by the
11-12 trier of fact equal to that other defendant's percentage of
11-13 responsibility.
11-14 (b) As among themselves, each of the defendants who is
11-15 jointly and severally liable under Section 33.013 is liable for the
11-16 damages recoverable by the claimant under Section 33.012 in
11-17 proportion to his respective percentage of responsibility. If a
11-18 defendant who is jointly and severally liable pays a larger
11-19 proportion of those damages than is required by his percentage of
11-20 responsibility, that defendant has a right of contribution for the
11-21 overpayment against each other defendant with whom he is jointly
11-22 and severally liable under Section 33.013 to the extent that the
11-23 other defendant has not paid the proportion of those damages
11-24 required by that other defendant's percentage of responsibility.
11-25 (c) If for any reason a liable defendant does not pay or
11-26 contribute the portion of the damages required by his percentage of
11-27 responsibility, the amount of the damages not paid or contributed
12-1 by that defendant shall be paid or contributed by the remaining
12-2 defendants who are jointly and severally liable for those damages.
12-3 The additional amount to be paid or contributed by each of the
12-4 defendants who is jointly and severally liable for those damages
12-5 shall be in proportion to his respective percentage of
12-6 responsibility.
12-7 (d) No defendant has a right of contribution against any
12-8 settling person.
12-9 Sec. 33.016. CLAIM AGAINST CONTRIBUTION DEFENDANT. (a) In
12-10 this section, "contribution defendant" means any defendant,
12-11 counterdefendant, or third-party defendant from whom any party
12-12 seeks contribution with respect to any portion of damages for which
12-13 that party may be liable, but from whom the claimant seeks no
12-14 relief at the time of submission.
12-15 (b) Each liable defendant is entitled to contribution from
12-16 each person who is not a settling person and who is liable to the
12-17 claimant for a percentage of responsibility but from whom the
12-18 claimant seeks no relief at the time of submission. A party may
12-19 assert this contribution right against any such person as a
12-20 contribution defendant in the claimant's action.
12-21 (c) The trier of fact shall determine as a separate issue or
12-22 finding of fact the percentage of responsibility with respect to
12-23 each contribution defendant and these findings shall be solely for
12-24 purposes of this section and Section 33.015 and not as a part of
12-25 the percentages of responsibility determined under Section 33.003.
12-26 Only the percentage of responsibility of each defendant and
12-27 contribution defendant shall be included in this determination.
13-1 (d) As among liable defendants, including each defendant who
13-2 is jointly and severally liable under Section 33.013, each
13-3 contribution defendant's percentage of responsibility is to be
13-4 included for all purposes of Section 33.015. The amount to be
13-5 contributed by each contribution defendant pursuant to Section
13-6 33.015 shall be in proportion to his respective percentage of
13-7 responsibility relative to the sum of percentages of responsibility
13-8 of all liable defendants and liable contribution defendants.
13-9 Sec. 33.017. PRESERVATION OF EXISTING RIGHTS OF INDEMNITY.
13-10 Nothing in this chapter shall be construed to affect any rights of
13-11 indemnity granted to a seller eligible for indemnity by Chapter 82,
13-12 the Texas Motor Vehicle Commission Code (Article 4413(36), Vernon's
13-13 Texas Civil Statutes), or any other statute, nor shall it affect
13-14 rights of indemnity granted by contract or at common law. To the
13-15 extent of any conflict between this chapter and any right to
13-16 indemnification granted by Section 82.002, the Texas Motor Vehicle
13-17 Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
13-18 or any other statute, contract, or common law, those rights of
13-19 indemnification shall prevail over the provisions of this chapter.
13-20 SECTION 2. This Act takes effect September 1, 1995, and
13-21 applies only to a cause of action that accrues on or after that
13-22 date. A cause of action that accrued before the effective date of
13-23 this Act is governed by the law in effect at the time the action
13-24 accrued, and that law is continued in effect for that purpose.
13-25 SECTION 3. The importance of this legislation and the
13-26 crowded condition of the calendars in both houses create an
13-27 emergency and an imperative public necessity that the
14-1 constitutional rule requiring bills to be read on three several
14-2 days in each house be suspended, and this rule is hereby suspended.
14-3 COMMITTEE AMENDMENT NO. 1
14-4 Amend S.B. No. 28, in SECTION 1, by striking Section
14-5 33.013(c), Civil Practice and Remedies Code, and substituting a new
14-6 Section 33.013(c) to read as follows:
14-7 (c) Notwithstanding Subsections <Subsection> (a) and (b),
14-8 each liable defendant is, in addition to his liability under
14-9 Subsection (a), jointly and severally liable for the damages
14-10 recoverable by the claimant under Section 33.012 with respect to a
14-11 cause of action if:
14-12 (1) <no percentage of responsibility is attributed to
14-13 the claimant and> the percentage of responsibility attributed to
14-14 the defendant is greater than 20 <10> percent; or
14-15 (2) the claimant's personal injury, property damage,
14-16 <or> death, or other harm is caused by the depositing, discharge,
14-17 or release into the environment of any hazardous or harmful
14-18 substance as described in Section 33.011(7) <Subdivision (3)>; or
14-19 (3) the claimant's personal injury, property damage,
14-20 <or> death, or other harm resulted from a <">toxic tort.<" "Toxic
14-21 tort" means a cause of action in tort or for breach of implied
14-22 warranty under Chapter 2, Business & Commerce Code, arising out of
14-23 exposure to hazardous chemicals, hazardous wastes, hazardous
14-24 hydrocarbons, similarly harmful organic or mineral substances,
14-25 hazardous radiation sources, and other similarly harmful substances
14-26 (which usually, but need not necessarily, arise in the work place),
14-27 but not including any "drug" as defined in Section 81.001(3), Civil
15-1 Practice and Remedies Code.>
15-2 74R11566 DAK-D Wolens