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 <
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
1-45 (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
1-65 (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
2-14 (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
2-19 (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
2-31 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
2-70 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
3-45 (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;
4-4 (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
4-9 (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
4-13 (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)>;
4-49 (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
5-8 (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
5-28 (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 * * * * *