1-1  By:  Sibley, et al.                                     S.B. No. 28
    1-2        (In the Senate - Filed January 11, 1995; January 11, 1995,
    1-3  read first time and referred to Committee on Economic Development;
    1-4  February 28, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 11, Nays 0;
    1-6  February 28, 1995, sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 28                    By:  Sibley
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to responsibility for, and recovery of, damages in certain
   1-11  civil actions.
   1-12        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-13        SECTION 1.  Chapter 33, Civil Practice and Remedies Code, is
   1-14  amended to read as follows:
   1-15        CHAPTER 33.  PROPORTIONATE <COMPARATIVE> RESPONSIBILITY
   1-16       SUBCHAPTER A.  PROPORTIONATE <COMPARATIVE> RESPONSIBILITY
   1-17        Sec. 33.001.  PROPORTIONATE <COMPARATIVE> RESPONSIBILITY.
   1-18  <(a)>  In an action to which this chapter applies <recover damages
   1-19  for negligence resulting in personal injury, property damage, or
   1-20  death or an action for products liability grounded in negligence>,
   1-21  a claimant may not recover damages <only> if his percentage of
   1-22  responsibility is greater <less> than <or equal to> 50 percent.
   1-23        <(b)  In an action to recover damages for personal injury,
   1-24  property damage, or death in which at least one defendant is found
   1-25  liable on a basis of strict tort liability, strict products
   1-26  liability, or breach of warranty under Chapter 2, Business &
   1-27  Commerce Code, a claimant may recover damages only if his
   1-28  percentage of responsibility is less than 60 percent.>
   1-29        <(c)  In an action in which a claimant seeks damages for harm
   1-30  other than personal injury, property damage, or death, arising out
   1-31  of any action grounded in negligence, including but not limited to
   1-32  negligence relating to any professional services rendered by an
   1-33  architect, attorney, certified public accountant, real estate
   1-34  broker or agent, or engineer licensed by this state, a claimant may
   1-35  recover damages only if his percentage of responsibility is less
   1-36  than or equal to 50 percent.>
   1-37        Sec. 33.002.  APPLICABILITY.  (a)  Except as provided by
   1-38  Subsections (b) and (c), this chapter applies to any cause of
   1-39  action based on tort in which a defendant, settling person, or
   1-40  responsible third party is found responsible for a percentage of
   1-41  the harm for which relief is sought <This chapter does not apply to
   1-42  a claim based on an intentional tort or a claim for exemplary
   1-43  damages included in an action to which this chapter otherwise
   1-44  applies>.
   1-45        (b)  Notwithstanding Subsection (a), a defendant who, with
   1-46  the specific intent to do harm to others, acts in concert with
   1-47  another person to engage in the conduct described in the following
   1-48  sections of the Penal Code shall be jointly and severally liable
   1-49  with such other person for the damages legally recoverable by the
   1-50  claimant that were proximately caused by such conduct:
   1-51              (1)  Section 19.02 (murder);
   1-52              (2)  Section 19.03 (capital murder);
   1-53              (3)  Section 20.04 (aggravated kidnapping);
   1-54              (4)  Section 22.02 (aggravated assault);
   1-55              (5)  Section 22.011 (sexual assault);
   1-56              (6)  Section 22.021 (aggravated sexual assault);
   1-57              (7)  Section 22.04 (injury to child, elderly
   1-58  individual, or disabled individual);
   1-59              (8)  Section 32.21 (forgery);
   1-60              (9)  Section 32.43 (commercial bribery);
   1-61              (10)  Section 32.45 (misapplication of fiduciary
   1-62  property or property of financial institution);
   1-63              (11)  Section 32.46 (securing execution of document by
   1-64  deception);
   1-65              (12)  Section 32.47 (fraudulent destruction, removal,
   1-66  or concealment of writing); or
   1-67              (13)  conduct described in Chapter 31 the punishment
   1-68  level for which is a felony of the third degree or higher.
    2-1        (c)  This chapter does not apply to:
    2-2              (1)  an action to collect workers' compensation
    2-3  benefits under the workers' compensation laws of this state
    2-4  (Subtitle A, Title 5, Labor Code) <(Article 8306 et seq., Vernon's
    2-5  Texas Civil Statutes)> or actions against an employer for exemplary
    2-6  damages arising out of the death of an employee; or
    2-7              (2)  a claim for exemplary damages included in an
    2-8  action to which this chapter otherwise applies <an action brought
    2-9  under the Deceptive Trade Practices-Consumer Protection Act
   2-10  (Subchapter E, Chapter 17, Business & Commerce Code) except as
   2-11  specifically provided in Section 17.50 of that Act; or>
   2-12              <(3)  an action brought under Chapter 21, Insurance
   2-13  Code>.
   2-14        (d)  Notwithstanding anything to the contrary stated in the
   2-15  sections of the Penal Code listed in Subsection (b), that
   2-16  subsection shall not apply unless the claimant proves the defendant
   2-17  acted or failed to act with intent to do harm as defined in this
   2-18  section.
   2-19        (e)  For purposes of this section, a person acts with intent
   2-20  to do harm with respect to the nature of the person's conduct and
   2-21  the result of the person's conduct when it is the person's
   2-22  conscious effort or desire to engage in such conduct for the
   2-23  purpose of doing substantial harm to others.
   2-24        (f)  Nothing in this section shall require a submission to
   2-25  the jury of a question regarding conduct by any party absent
   2-26  sufficient evidence to support the submission.
   2-27        (g)  The jury shall not be made aware through voir dire,
   2-28  introduction into evidence, instruction, or any other means that
   2-29  the conduct to which Subsection (b) applies is defined by the Penal
   2-30  Code.
   2-31        Sec. 33.003.  DETERMINATION OF PERCENTAGE OF <COMPARATIVE>
   2-32  RESPONSIBILITY.  The trier of fact, as to each cause of action
   2-33  asserted, shall determine the percentage of responsibility, stated
   2-34  in whole numbers, for the following persons with respect to each
   2-35  person's causing or contributing to cause in any way the harm for
   2-36  which recovery of damages is sought, whether by negligent act or
   2-37  omission, by any defective or unreasonably dangerous product, by
   2-38  other conduct or activity that violates an applicable legal
   2-39  standard, or by any combination of these:
   2-40              (1)  each claimant;
   2-41              (2)  each defendant; <and>
   2-42              (3)  each settling person; and
   2-43              (4)  each responsible third party who has been joined
   2-44  under Section 33.004.
   2-45        Sec. 33.004.  JOINDER OF RESPONSIBLE THIRD PARTIES.
   2-46  (a)  Prior to the expiration of limitations on the claimant's claim
   2-47  for damages against the defendant and on timely motion made for
   2-48  that purpose, a defendant may seek to join a responsible third
   2-49  party who has not been sued by the claimant.
   2-50        (b)  Nothing in this section shall affect the third-party
   2-51  practice as previously recognized in the rules and statutes of this
   2-52  state with regard to the assertion by a defendant of rights to
   2-53  contribution or indemnity.
   2-54        (c)  A seller eligible for indemnity under Section 82.002
   2-55  shall not be joined as a responsible third party under this section
   2-56  unless there is alleged against the seller a claim for relief based
   2-57  on the seller's negligence, intentional misconduct, or other act or
   2-58  omission, such as negligently modifying or altering a product, for
   2-59  which the seller is independently liable to the claimant.
   2-60        (d)  A third party claim by a defendant under this section
   2-61  may be filed, even though the claimant's action against the
   2-62  responsible third party would be barred by limitations, if the
   2-63  third party claim is filed on or before 30 days after the date the
   2-64  defendant's answer is required to be filed.
   2-65        (e)  A claimant may join a responsible third party, even
   2-66  though such joinder would otherwise be barred by limitations, if
   2-67  the claimant seeks to join the responsible third party not later
   2-68  than 60 days after a third party claim is filed under Subsection
   2-69  (d).
   2-70                      SUBCHAPTER B.  CONTRIBUTION
    3-1        Sec. 33.011.  DEFINITIONS.  In this chapter:
    3-2              (1)  "Claimant" means a party seeking recovery of
    3-3  damages pursuant to the provisions of Section 33.001, including a
    3-4  plaintiff, counterclaimant, cross-claimant, or third-party
    3-5  plaintiff seeking recovery of damages.  In an action in which a
    3-6  party seeks recovery of damages for injury to another person,
    3-7  damage to the property of another person, death of another person,
    3-8  or other harm to another person, "claimant" includes both that
    3-9  other person and the party seeking recovery of damages pursuant to
   3-10  the provisions of Section 33.001.
   3-11              (2)  "Defendant" includes any party from whom a
   3-12  claimant seeks recovery of damages pursuant to the provisions of
   3-13  Section 33.001 at the time of the submission of the case to the
   3-14  trier of fact.
   3-15              (3)  "Liable defendant" means a defendant against whom
   3-16  a judgment can be entered for at least a portion of the damages
   3-17  awarded to the claimant.
   3-18              (4)  "Percentage of responsibility" means that
   3-19  percentage, stated in whole numbers, attributed by the trier of
   3-20  fact to each claimant, each defendant, <or> each settling person,
   3-21  or each responsible third party with respect to causing or
   3-22  contributing to cause in any way, whether by negligent act or
   3-23  omission, by any defective or unreasonably dangerous product, by
   3-24  other conduct or activity violative of the applicable legal
   3-25  standard, or by any combination of the foregoing, the personal
   3-26  injury, property damage, death, or other harm for which recovery of
   3-27  damages is sought.
   3-28              (5)  "Settling person" means a person who at the time
   3-29  of submission has paid or promised to pay money or anything of
   3-30  monetary value to a claimant at any time in consideration of
   3-31  potential liability pursuant to the provisions of Section 33.001
   3-32  with respect to the personal injury, property damage, death, or
   3-33  other harm for which recovery of damages is sought.
   3-34              (6)(A)  "Responsible third party" means any person to
   3-35  whom all of the following apply:
   3-36                          (i)  the court in which the action was
   3-37  filed could exercise jurisdiction over the person;
   3-38                          (ii)  the person could have been, but was
   3-39  not, sued by the claimant; and
   3-40                          (iii)  the person is or may be liable to
   3-41  the plaintiff for all or a part of the damages claimed against the
   3-42  named defendant or defendants.
   3-43                    (B)  The term "responsible third party" does not
   3-44  include:
   3-45                          (i)  an employer who maintained workers'
   3-46  compensation insurance coverage, as defined in Section 401.011(44),
   3-47  Labor Code, at the time of the act, event, or occurrence made the
   3-48  basis of claimant's suit;
   3-49                          (ii)  a person or entity that is a debtor
   3-50  in bankruptcy proceedings; or
   3-51                          (iii)  a person or entity against whom the
   3-52  claimant's claim has been discharged in bankruptcy.
   3-53              (7)  "Toxic tort" means a cause of action in tort or
   3-54  for breach of implied warranty under Chapter 2, Business & Commerce
   3-55  Code, for damages of any kind arising out of or caused by exposure
   3-56  to or the deposit, discharge, or release into the environment of
   3-57  hazardous chemicals, hazardous wastes, hazardous hydrocarbons,
   3-58  similarly harmful organic or mineral substances, hazardous
   3-59  radiation sources, and other similarly harmful substances,
   3-60  including torts arising out of exposure to such substances in the
   3-61  work place.
   3-62        Sec. 33.012.  AMOUNT OF RECOVERY.  (a)  If the claimant is
   3-63  not barred from recovery under Section 33.001, the court shall
   3-64  reduce the amount of damages to be recovered by the claimant with
   3-65  respect to a cause of action by a percentage equal to the
   3-66  claimant's percentage of responsibility.
   3-67        (b)  If the claimant has settled with one or more persons,
   3-68  the court shall further reduce the amount of damages to be
   3-69  recovered by the claimant with respect to a cause of action by a
   3-70  credit equal to one of the following, as elected in accordance with
    4-1  Section 33.014:
    4-2              (1)  the sum of the dollar amounts of all settlements;
    4-3  or
    4-4              (2)  a dollar amount equal to the sum of the following
    4-5  percentages of damages found by the trier of fact:
    4-6                    (A)  5 percent of those damages up to $200,000;
    4-7                    (B)  10 percent of those damages from $200,001 to
    4-8  $400,000;
    4-9                    (C)  15 percent of those damages from $400,001 to
   4-10  $500,000; and
   4-11                    (D)  20 percent of those damages greater than
   4-12  $500,000.
   4-13        (c)  The amount of damages recoverable by the claimant may
   4-14  only be reduced once by the credit provided for in Subsection (b).
   4-15        (d)  This section shall not apply to benefits paid by or on
   4-16  behalf of an employer to an employee pursuant to workers'
   4-17  compensation insurance coverage, as defined in Section 401.011(44),
   4-18  Labor Code, in effect at the time of the act, event, or occurrence
   4-19  made the basis of claimant's suit.
   4-20        Sec. 33.013.  AMOUNT OF LIABILITY.  (a)  Except as provided
   4-21  in Subsections (b) and (c), a liable defendant is liable to a
   4-22  claimant only for the percentage of the damages found by the trier
   4-23  of fact equal to that defendant's percentage of responsibility with
   4-24  respect to the personal injury, property damage, death, or other
   4-25  harm for which the damages are allowed.
   4-26        (b)  Notwithstanding Subsection (a), each liable defendant
   4-27  is, in addition to his liability under Subsection (a), jointly and
   4-28  severally liable for the damages recoverable by the claimant under
   4-29  Section 33.012 with respect to a cause of action if<:>
   4-30              <(1)>  the percentage of responsibility attributed to
   4-31  the defendant is greater than 50 <20> percent<; and>
   4-32              <(2)  only for a negligence action pursuant to Section
   4-33  33.001(a) or (c), the percentage of responsibility attributed to
   4-34  the defendant is greater than the percentage of responsibility
   4-35  attributed to the claimant>.
   4-36        (c)  Notwithstanding Subsections <Subsection> (a) and (b),
   4-37  each liable defendant is, in addition to his liability under
   4-38  Subsection (a), jointly and severally liable for the damages
   4-39  recoverable by the claimant under Section 33.012 with respect to a
   4-40  cause of action if:
   4-41              (1)  <no percentage of responsibility is attributed to
   4-42  the claimant and> the percentage of responsibility attributed to
   4-43  the defendant is greater than 20 <10> percent; and <or>
   4-44              <(2)>  the claimant's personal injury, property damage,
   4-45  <or> death, or other harm is caused by the depositing, discharge,
   4-46  or release into the environment of any hazardous or harmful
   4-47  substance as described in Subsection 33.011(7) <Subdivision (3)>;
   4-48  or
   4-49              (2) <(3)>  the claimant's personal injury, property
   4-50  damage, <or> death, or other harm resulted from a <">toxic tort.<"
   4-51  "Toxic tort" means a cause of action in tort or for breach of
   4-52  implied warranty under Chapter 2, Business & Commerce Code, arising
   4-53  out of exposure to hazardous chemicals, hazardous wastes, hazardous
   4-54  hydrocarbons, similarly harmful organic or mineral substances,
   4-55  hazardous radiation sources, and other similarly harmful substances
   4-56  (which usually, but need not necessarily, arise in the work place),
   4-57  but not including any "drug" as defined in Section 81.001(3), Civil
   4-58  Practice and Remedies Code.>
   4-59        (d)  This section does not create a cause of action.
   4-60        Sec. 33.014.  ELECTION OF CREDIT FOR SETTLEMENTS.  <(a)>  If
   4-61  a claimant has settled with one or more persons, an election must
   4-62  be made as to which dollar credit is to be applied under Section
   4-63  33.012(b).  This election shall be made by any defendant filing a
   4-64  written election before the issues of the action are submitted to
   4-65  the trier of fact and, when made, shall be binding on all
   4-66  defendants.  If no defendant makes this election or if conflicting
   4-67  elections are made, all defendants are considered to have elected
   4-68  Subdivision (2) of Section 33.012(b).
   4-69        Sec. 33.015.  CONTRIBUTION.  (a)  If a defendant who is
   4-70  jointly and severally liable under Section 33.013 pays a percentage
    5-1  of the damages for which the defendant is jointly and severally
    5-2  liable greater than his percentage of responsibility, that
    5-3  defendant has a right of contribution for the overpayment against
    5-4  each other liable defendant to the extent that the other liable
    5-5  defendant has not paid the percentage of the damages found by the
    5-6  trier of fact equal to that other defendant's percentage of
    5-7  responsibility.
    5-8        (b)  As among themselves, each of the defendants who is
    5-9  jointly and severally liable under Section 33.013 is liable for the
   5-10  damages recoverable by the claimant under Section 33.012 in
   5-11  proportion to his respective percentage of responsibility.  If a
   5-12  defendant who is jointly and severally liable pays a larger
   5-13  proportion of those damages than is required by his percentage of
   5-14  responsibility, that defendant has a right of contribution for the
   5-15  overpayment against each other defendant with whom he is jointly
   5-16  and severally liable under Section 33.013 to the extent that the
   5-17  other defendant has not paid the proportion of those damages
   5-18  required by that other defendant's percentage of responsibility.
   5-19        (c)  If for any reason a liable defendant does not pay or
   5-20  contribute the portion of the damages required by his percentage of
   5-21  responsibility, the amount of the damages not paid or contributed
   5-22  by that defendant shall be paid or contributed by the remaining
   5-23  defendants who are jointly and severally liable for those damages.
   5-24  The additional amount to be paid or contributed by each of the
   5-25  defendants who is jointly and severally liable for those damages
   5-26  shall be in proportion to his respective percentage of
   5-27  responsibility.
   5-28        (d)  No defendant has a right of contribution against any
   5-29  settling person.
   5-30        Sec. 33.016.  CLAIM AGAINST CONTRIBUTION DEFENDANT.  (a)  In
   5-31  this section, "contribution defendant" means any defendant,
   5-32  counterdefendant, or third-party defendant from whom any party
   5-33  seeks contribution with respect to any portion of damages for which
   5-34  that party may be liable, but from whom the claimant seeks no
   5-35  relief at the time of submission.
   5-36        (b)  Each liable defendant is entitled to contribution from
   5-37  each person who is not a settling person and who is liable to the
   5-38  claimant for a percentage of responsibility but from whom the
   5-39  claimant seeks no relief at the time of submission.  A party may
   5-40  assert this contribution right against any such person as a
   5-41  contribution defendant in the claimant's action.
   5-42        (c)  The trier of fact shall determine as a separate issue or
   5-43  finding of fact the percentage of responsibility with respect to
   5-44  each contribution defendant and these findings shall be solely for
   5-45  purposes of this section and Section 33.015 and not as a part of
   5-46  the percentages of responsibility determined under Section 33.003.
   5-47  Only the percentage of responsibility of each defendant and
   5-48  contribution defendant shall be included in this determination.
   5-49        (d)  As among liable defendants, including each defendant who
   5-50  is jointly and severally liable under Section 33.013, each
   5-51  contribution defendant's percentage of responsibility is to be
   5-52  included for all purposes of Section 33.015.  The amount to be
   5-53  contributed by each contribution defendant pursuant to Section
   5-54  33.015 shall be in proportion to his respective percentage of
   5-55  responsibility relative to the sum of percentages of responsibility
   5-56  of all liable defendants and liable contribution defendants.
   5-57        Sec. 33.017.  PRESERVATION OF EXISTING RIGHTS OF INDEMNITY.
   5-58  Nothing in this chapter shall be construed to affect any rights of
   5-59  indemnity granted to a seller eligible for indemnity by Chapter 82,
   5-60  the Texas Motor Vehicle Commission Code (Article 4413(36), Vernon's
   5-61  Texas Civil Statutes), or any other statute, nor shall it affect
   5-62  rights of indemnity granted by contract or at common law.  To the
   5-63  extent of any conflict between this chapter and any right to
   5-64  indemnification granted by Section 82.002, the Texas Motor Vehicle
   5-65  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
   5-66  or any other statute, contract, or common law, those rights of
   5-67  indemnification shall prevail over the provisions of this chapter.
   5-68        SECTION 2.  This Act takes effect September 1, 1995, and
   5-69  applies only to a cause of action that accrues on or after that
   5-70  date.  A cause of action that accrued before the effective date of
    6-1  this Act is governed by the law in effect at the time the action
    6-2  accrued, and that law is continued in effect for that purpose.
    6-3        SECTION 3.  The importance of this legislation and the
    6-4  crowded condition of the calendars in both houses create an
    6-5  emergency and an imperative public necessity that the
    6-6  constitutional rule requiring bills to be read on three several
    6-7  days in each house be suspended, and this rule is hereby suspended.
    6-8                               * * * * *