ZEM C.S.S.B. 220 75(R)BILL ANALYSIS


CIVIL PRACTICES
C.S.S.B. 220
By: Bivins, et al. (Junell)
5-20-97
Committee Report (Substituted)


BACKGROUND 

Currently, the Texas common law forum non conveniens doctrine, similar to
federal and most other states' courts, gives judges broad discretion to
dismiss lawsuits if in the interest of justice and convenience of the
parties, an alternate jurisdiction is a more appropriate forum for the
lawsuit. However, the Texas statutory forum non conveniens doctrine
requires Texas judges to apply a different set of criteria to lawsuits
filed by foreign plaintiffs and residents of other states.  It exempts
from the forum non conveniens doctrine claims based on any violation of
federal law and claims related to air transportation, railroad companies,
and asbestos and requires all defendants to unanimously consent to the
jurisdiction of the alternate forum and waive all statutes of limitations
defenses.  S.B. 220 would eliminate these exemptions and give a court
jurisdiction over certain claims. 

PURPOSE

As engrossed, S.B. 220 authorizes a court in this state, under certain
conditions, to decline to exercise jurisdiction under the doctrine of
forum non conveniens, eliminates certain exemptions to forum non
conveniens, and gives a court jurisdiction over certain claims. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 71.051, Civil Practice and Remedies Code as
follows: 

(a)  Provides that with respect to a plaintiff, rather than a claimant,
who is not a legal resident of the United States, if a court of this
state, on written notice of a party, finds that in the interest of
justice, a claim or an action to which this section applies would be more
properly heard in a forum outside this state, the court may decline to
exercise jurisdiction under the doctrine of forum non conveniens and may
stay or dismiss the claim or action in whole or part, on any conditions
that may be just.   

(b)  Provides that with respect to a plaintiff rather than a claimant, who
is a legal resident of the United States, a claim or action may be stayed
or dismissed in whole or in part under the doctrine of forum non
conveniens on written motion of a party if the party proves by a
preponderance of the evidence that an alternative forum exists, the
alternate forum provides an adequate remedy, maintenance of the claim or
action in this state would be a substantial injustice to the moving party,
the alternate forum, as a result of the submission of the parties or
otherwise, can exercise jurisdiction over all defendants, the balance of
public and private interests favors the alternate forum, and the stay or
dismissal would not result in duplication or proliferation of litigation. 

(c)  Provides that the court may set terms and conditions for staying or
dismissing a claim or action. Requires the court to withdraw the stay or
dismissal order if the moving party violates a term or condition of it.
Grants the court continuing jurisdiction for purposes of this subsection. 

(d)  Provides that a request for a stay or dismissal is timely if filed
not later than 180 days after the time for filing a motion to transfer
venue. 

 
(e)  Provides that a court may not stay or dismiss a claim if a party is
properly joined, is a legal resident of this state, and the claim or
action arose out of a single occurrence.  Requires the court to dismiss a
claim or action if the court finds by a preponderance of the evidence that
a party was joined solely to obtain or maintain jurisdiction. 

(f) Makes conforming changes.  Deletes existing statutory language
relating to actions brought under FELA, relating to air transportation,
and exposure to asbestos fibers. 

(g)  Deletes existing statutory language relating to actions resulting
from exposure to substances in violation of state or federal law and
relating to burden of proof on certain exceptions.  Makes conforming
changes. 

(h)  Replaces the word "person" with "individual" and "claimant" with
"plaintiff."  Provides that the term "plaintiff" does not include
counterclaimant, cross-claimant, or third-party plaintiff. 

(i)  Makes conforming changes.

SECTION 2.  Amends Subchapter D, Chapter 71, Civil Practice and Remedies
Code by adding Section 71.052 as follows: 

(a) Provides that this section applies only to a claim for injury or death
in which the plaintiff is a nonresident, the claim arose outside the
state, and the harm was caused by asbestos. 

(b) Requires the court, on defendant's motion, to dismiss each claim filed
on or after January 1, 1997 if the defendant stipulates that the claim in
another forum would relate back to the date of filing in this state for
limitations purposes. 

(c) Requires the court to dismiss each claim against the defendant that
was filed after August 1, 1995 but before January 1, 1997 unless the
plaintiff elects to abate the claim to file a new action in another state
or to limit the recovery on exemplary damages to specified amounts. 

(d) Requires the court to deny the defendant's motion to dismiss if a
plaintiff has made an election and not to require the plaintiff to refile
the election against any subsequent motion.  Requires the court to dismiss
the plaintiff's claims at the end of the abatement period. 

(e) Provides that a court may not abate or dismiss a claim until the
defendant stipulates that he waives statute of limitation defense in all
other states so that limitations is tolled from the time the claim was
filed in this state and ending on the date the claim was dismissed or the
abatement ended. 

(f) Provides that the court may not abate or dismiss a claim until the
defendant stipulates that for a new action filed in another state, the
plaintiff and defendant can rely on previous discovery and conduct
additional discovery under the procedural rules of the new forum state. 

(g) Requires the court to sever claims and consider them individually for
actions in which some claims arose in state and some arose out of state. 

(h) Requires a court to determine jurisdiction based on the plaintiff's
location at the time of exposure to asbestos.  If the plaintiff was
exposed in more than one jurisdiction, requires the court to base the
determination by considering the relative amounts and lengths of exposure
in each jurisdiction. 

SECTION 3.  Amends Subsections (a) and (b), Section 71.031, Civil Practice
and Remedies Code to provide that an action for damages for death or
personal injury may be enforced in this state for residents of a foreign
country or state if the action is begun within the time deadlines provided
by the laws of the foreign country or state and to make conforming
changes. 

SECTION 4. (a) Specifies that Section 1 applies to civil actions commenced
on or after January 1, 1999 that is against a railroad company brought
under FELA, the federal Safety Appliance Act, or the federal Boiler
Inspection Act or an action alleging that injury or death was caused by
air transportation travelling in or originating in or destined for this
state and to other civil actions  commenced on or after the effective date 

(b) Specifies that Section 2 applies to civil actions pending on the
effective date for asbestos cases. Savings clause. 

(c)  Specifies that Section 3 applies prospectively; savings clause.

SECTION 5. Emergency Clause.
           Effective date: upon passage



COMPARISON OF ORIGINAL TO SUBSTITUTE

The committee substitute makes the following substantive changes:


SECTION 1

1.Restores current statutory language distinguishing between plaintiffs
who are not legal residents of the United States and plaintiffs who are
legal residents. Provides that for plaintiffs who are legal residents of
the United States, a claim or action may only be stayed or dismissed if
the moving party proves by a preponderance of the evidence that an
alternate forum exists which provides an adequate remedy, which can
exercise jurisdiction over all defendants, and which is favored by the
balancing of public and private interests.   

2.Restores current statutory language  and adds a new deadline for filing
a request for stay or dismissal. Deletes language waiving objections to
jurisdiction if a request is not timely filed. 

3.Provides that a court may not stay or dismiss a claim if the plaintiff
is a legal resident of the state, but specifies that in an action
involving both plaintiffs who are Texas residents and nonresidents the
court may not dismiss if the plaintiffs are properly joined and the action
arose out of a single occurrence. 

4.Restores current statutory language preventing stay or dismissal of an
action if it occurred in Texas. 

5.Restores current statutory definition of "legal resident" but replaces
the word "person" with "an individual."  Defines "plaintiff" and excludes
counterclaimants, cross-claimants, and third-party plaintiffs from the
definition. 

SECTION 2

1.Makes certain provisions for out-of-state asbestos claims filed by
nonresidents: 
a.claims filed before August 1, 1995 are not subject to dismissal
b.claims filed after August 1, 1995 and before January 1, 1997 are subject
to an election by the plaintiff to either dismiss the claim and require
the court to abate the claim for 180 days and defendant to stipulate that
statute of limitations is tolled for the abatement period or to remain in
Texas but accept Texas punitive damage caps. 
c.claims filed after January 1, 1997 are subject to dismissal if the
defendant agrees that a claim refiled in another state will be treated as
if it was filed on the same day the claim was filed in Texas. 

2. Provides that before a claim may be dismissed, the defendant must
stipulate that the plaintiff can choose either to use discovery obtained
in Texas as well as any new discovery obtained in the other state or to
rely on the other state's rules governing use of prior discovery. 

3.Specifies that a court shall make the determination of where the claim
arose based on where the plaintiff was exposed to asbestos fibers.  If the
plaintiff was exposed in more than one  jurisdiction, the court shall
determine which is most appropriate by considering the relative amounts
and lengths of the plaintiff's exposure in each jurisdiction. 

SECTION 3

1.Provides that out-of-state residents must file out-of-state claims
within the time period allowed by the statute of limitations in the state
where the action arose. 

SECTION 4

1.Provides that SECTION 1 applies to actions against railroad companies
under FELA or other federal statutes or actions based on air
transportation accidents that are filed after January 1, 1999 and to all
other civil actions filed on or after the effective date. 

2. Provides that SECTION 2 applies to pending cases.

3.Provides that SECTION 3 applies prospectively.