75R16163 E
By Bivins, et al. S.B. No. 220
Substitute the following for S.B. No. 220:
By Gray C.S.S.B. No. 220
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to lawsuits arising outside or brought by persons who
1-3 reside outside of Texas.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 71.051, Civil Practice and Remedies Code,
1-6 is amended to read as follows:
1-7 Sec. 71.051. FORUM NON CONVENIENS. (a) With respect to a
1-8 plaintiff [claimant] who is not a legal resident of the United
1-9 States, if a court of this state, on written motion of a party,
1-10 finds that in the interest of justice a claim or [an] action to
1-11 which this section applies would be more properly heard in a forum
1-12 outside this state, the court may decline to exercise jurisdiction
1-13 under the doctrine of forum non conveniens and may stay or dismiss
1-14 the claim or action in whole or in part on any conditions that may
1-15 be just.
1-16 (b) With respect to a plaintiff [claimant] who is a legal
1-17 resident of the United States, on written motion of a party, a
1-18 claim or [an] action to which this section applies may be stayed or
1-19 dismissed in whole or in part under the doctrine of forum non
1-20 conveniens if the party seeking to stay or dismiss the claim or
1-21 action proves by a preponderance of the evidence that:
1-22 (1) an alternative forum exists in which the claim or
1-23 action may be tried [a forum outside this state is a more
1-24 appropriate forum that:]
2-1 [(A) offers a remedy for the causes of action
2-2 brought by a party to which this section applies;]
2-3 [(B) as a result of the submission of the
2-4 parties or otherwise, can exercise jurisdiction over all parties
2-5 and claims properly joined in the action by the claimant; and]
2-6 [(C) would provide a place of trial that is
2-7 fair, reasonable, and convenient to the parties];
2-8 (2) the alternate forum provides an adequate remedy;
2-9 (3) maintenance of the claim or action in the courts
2-10 of this state would work a substantial injustice to the moving
2-11 party [and the balance of the private interests of all the parties
2-12 and the public interest of the state predominates in favor of the
2-13 action being brought in the other forum];
2-14 (4) the alternate forum, as a result of the submission
2-15 of the parties or otherwise, can exercise jurisdiction over all the
2-16 defendants properly joined to the plaintiff's claim;
2-17 (5) the balance of the private interests of the
2-18 parties and the public interest of the state predominate in favor
2-19 of the claim or action being brought in an alternate forum; and
2-20 (6) [(3)] the stay or dismissal would not [, in
2-21 reasonable probability,] result in unreasonable duplication or
2-22 proliferation of litigation.
2-23 (c) The court may set terms and conditions for staying or
2-24 dismissing a claim or action under this section as the interests of
2-25 justice may require, giving due regard to the rights of the parties
2-26 to the claim or action. If a moving party violates a term or
2-27 condition of a stay or dismissal, the court shall withdraw the
3-1 order staying or dismissing the claim or action and proceed as if
3-2 the order had never been issued. Notwithstanding any other law,
3-3 the court shall have continuing jurisdiction for purposes of this
3-4 subsection [No stay or dismissal shall be granted under Subsection
3-5 (b) until all properly joined defendants file with the clerk of the
3-6 court a written stipulation that each defendant will:]
3-7 [(1) submit to the personal jurisdiction of the courts
3-8 of the other forum; and]
3-9 [(2) waive any defense based on the statute of
3-10 limitations applicable in the other forum with respect to all
3-11 causes of action brought by a party to which this section applies].
3-12 (d) [The court may, on motion and notice to the parties,
3-13 modify an order granting a stay or dismissal under this section and
3-14 take any further action in the proceeding as the interests of
3-15 justice may require. If the moving party violates a stipulation
3-16 required by Subsection (c), the court shall withdraw the order
3-17 staying or dismissing the action and proceed as if the order had
3-18 never been issued. Notwithstanding any other law, the court shall
3-19 have continuing jurisdiction for the purposes of this subsection.]
3-20 [(e)] A request for stay or dismissal under this section is
3-21 timely if it is filed not later than 180 days after the time
3-22 required for filing a motion to transfer venue of the claim or
3-23 action. [Otherwise, any objection under this section to the
3-24 court's exercise of jurisdiction is waived.] The court may rule on
3-25 a motion filed under this section only after a hearing with notice
3-26 to all parties not less than 21 days before the date specified for
3-27 the hearing. The court shall afford all of the parties ample
4-1 opportunity to obtain discovery of information relevant to the
4-2 motion prior to a hearing on a motion under this section. The
4-3 moving party shall have the responsibility to request and obtain a
4-4 hearing on such motion at a reasonable time prior to commencement
4-5 of the trial, and in no case shall the hearing be held less than 30
4-6 days prior to trial.
4-7 (e) The court may not stay or dismiss a plaintiff's claim
4-8 under Subsection (b) if the plaintiff is a legal resident of this
4-9 state. If an action involves both plaintiffs who are legal
4-10 residents of this state and plaintiffs who are not, the court may
4-11 not stay or dismiss the action under Subsection (b) if the
4-12 plaintiffs who are legal residents of this state are properly
4-13 joined in the action and the action arose out of a single
4-14 occurrence. The court shall dismiss a claim under Subsection (b)
4-15 if the court finds by a preponderance of the evidence that a party
4-16 was joined solely for the purpose of obtaining or maintaining
4-17 jurisdiction in this state and the party's claim would be more
4-18 properly heard in a forum outside of this state.
4-19 (f) A court may not stay or dismiss a claim or [an] action
4-20 pursuant to Subsection (b)[:]
4-21 [(1) if a claimant in the action who is properly
4-22 joined is a legal resident of this state;]
4-23 [(2)] if a party opposing the motion under Subsection
4-24 (b) alleges and makes a prima facie showing that an act or omission
4-25 that was a proximate or producing cause of the injury or death
4-26 occurred in this state. The [Notwithstanding Subsection (h), said]
4-27 prima facie showing need not be made by a preponderance of the
5-1 evidence and shall be deemed to be satisfied if the [said] party
5-2 produces credible evidence in support of the pleading, which
5-3 evidence need not be in admissible form and may include affidavits,
5-4 deposition testimony, discovery responses, or other verified
5-5 evidence[;]
5-6 [(3) in an action brought under the federal Employers'
5-7 Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety
5-8 Appliance Act (45 U.S.C. Section 1 et seq.), or the federal Boiler
5-9 Inspection Act (45 U.S.C. Section 22 et seq.);]
5-10 [(4) in an action in which it is alleged that the
5-11 personal injury or death was caused by a means of air
5-12 transportation operated in this state or occurred while traveling
5-13 in or on a means of air transportation during a trip originating
5-14 from or destined for a location in this state; or]
5-15 [(5) in an action in which it is alleged that harm was
5-16 caused by exposure to asbestos fibers].
5-17 (g) [This section does not apply if the personal injury or
5-18 death that is the subject of the cause of action resulted from a
5-19 violation of the laws of this state or of the United States,
5-20 including but not limited to exposure to a substance referred to in
5-21 Section 33.013(c)(3) that was transported out of this state or the
5-22 United States in violation of the laws of this state or the United
5-23 States.]
5-24 [(h) The burden is on the party opposing a motion under
5-25 Subsection (b) to assert and prove by a preponderance of the
5-26 evidence an exception provided by Subsection (f), if applicable.
5-27 If a party opposing a motion under Subsection (b) fails to timely
6-1 raise an exception under Subsection (f), that party's right to
6-2 raise such exception is waived, but such waiver does not relieve
6-3 the moving party as to any requirement of this section. An
6-4 exception filed not less than seven days before the hearing on a
6-5 motion made under Subsection (b) shall be deemed to be timely.]
6-6 [(i)] Any time limit established by this section may be
6-7 extended by the court at the request of any party for good cause
6-8 shown.
6-9 (h) [(j)] In this section:
6-10 (1) "Legal resident" means an individual [a person]
6-11 who intends the specified political subdivision to be his permanent
6-12 residence and who intends to return to the specified political
6-13 subdivision despite temporary residence elsewhere or despite
6-14 temporary absences, without regard to the individual's [person's]
6-15 country of citizenship or national origin. The term does not
6-16 include an individual [a person] who adopts a residence in the
6-17 specified political subdivision in bad faith for purposes of
6-18 avoiding the application of this section.
6-19 (2) "Plaintiff" ["Claimant"] means a party[, including
6-20 a plaintiff, counterclaimant, cross-claimant, or third-party
6-21 plaintiff,] seeking recovery of damages for personal injury or
6-22 wrongful death. In a cause of action in which a party seeks
6-23 recovery of damages for personal injury to or the wrongful death of
6-24 another person, "plaintiff" ["claimant"] includes both that other
6-25 person and the party seeking such recovery. The term does not
6-26 include a counterclaimant, cross-claimant, or third-party plaintiff
6-27 or a person who is assigned a cause of action for personal injury,
7-1 or who accepts an appointment as a personal representative in a
7-2 wrongful death action, in bad faith for purposes of affecting in
7-3 any way the application of this section.
7-4 (i) [(k)] This section applies to actions for personal
7-5 injury or wrongful death. This section shall govern the courts of
7-6 this state in determining issues under the doctrine of forum non
7-7 conveniens in the actions to which it applies, notwithstanding
7-8 Section 71.031(a) or any other law.
7-9 SECTION 2. Subchapter D, Chapter 71, Civil Practice and
7-10 Remedies Code, is amended by adding Section 71.052 to read as
7-11 follows:
7-12 Sec. 71.052. JURISDICTION; ELECTION; STIPULATIONS. (a)
7-13 This section applies only to a claim for personal injury or
7-14 wrongful death in which:
7-15 (1) the plaintiff was not a resident of this state at
7-16 the time the claim arose;
7-17 (2) the plaintiff's claim arose outside this state;
7-18 and
7-19 (3) the plaintiff's claim alleges that harm was caused
7-20 by exposure to asbestos fibers.
7-21 (b) The court, on motion of a defendant, shall dismiss each
7-22 claim against the defendant that is subject to this section and was
7-23 filed in this state on or after January 1, 1997, on the filing of a
7-24 stipulation by the defendant that, for the purposes of limitations,
7-25 the filing of the claim in another forum would relate back to the
7-26 date each plaintiff filed his claim in this state.
7-27 (c) The court, on motion of a defendant, shall dismiss each
8-1 claim against the defendant that is subject to this section and
8-2 was commenced in this state on or after August 1, 1995, but before
8-3 January 1, 1997, unless the plaintiff files a written statement
8-4 electing to:
8-5 (1) abate the plaintiff's claim against the defendant
8-6 for a period of 180 days from the date the court disposes of the
8-7 defendant's motion, to afford the plaintiff an opportunity to file
8-8 a new action on the claims in another state of the United States;
8-9 or
8-10 (2) retain the plaintiff's claims against the
8-11 defendant in this state and limit the plaintiff's recovery on the
8-12 claims for exemplary damages, if any, against the defendant to an
8-13 amount not to exceed the greater of:
8-14 (A) two times the amount of economic damages
8-15 plus an amount equal to any noneconomic damages found by the trier
8-16 of fact, not to exceed $750,000; or
8-17 (B) $200,000.
8-18 (d) If a plaintiff files a written statement making an
8-19 election under Subsection (c), the court shall deny the defendant's
8-20 motion filed under Subsection (c) and shall enter an order in
8-21 accordance with the plaintiff's election. If the plaintiff makes
8-22 an election under Subsection (c), the election is effective as to
8-23 all defendants and the court may not require the plaintiff to
8-24 refile the election against any subsequent motion filed by a
8-25 defendant under Subsection (c). If a plaintiff elects to abate the
8-26 claim, the court shall dismiss each of the plaintiff's claims
8-27 against the defendants at the end of the abatement period.
9-1 (e) A court may not abate or dismiss a claim under
9-2 Subsection (c) against a defendant until the defendant files with
9-3 the court or with the clerk of the court a written stipulation
9-4 that, with respect to a new action on the claim commenced by the
9-5 plaintiff, the defendant waives the right to assert a statute of
9-6 limitations defense in all other states of the United States in
9-7 which the claim was not barred by limitations at the time the claim
9-8 was filed in this state as necessary to effect a tolling of the
9-9 limitations periods in those states beginning on the date the claim
9-10 was filed in this state and ending on the date the claim is
9-11 dismissed or the period of abatement ends.
9-12 (f) The court may not abate or dismiss a claim under this
9-13 section against a defendant until the defendant files with the
9-14 court or with the clerk of the court a written stipulation that,
9-15 with respect to a new action on the claim commenced by the
9-16 plaintiff in another state of the United States, the plaintiff may
9-17 elect that the plaintiff and the defendant may:
9-18 (1) rely on responses to discovery already provided
9-19 under the Texas Rules of Civil Procedure, plus any additional
9-20 discovery that may be conducted under the rules of civil procedure
9-21 in the other state; or
9-22 (2) use responses to discovery already provided and
9-23 conduct additional discovery as permitted under the rules of civil
9-24 procedure in the other state.
9-25 (g) To comply with this section in relation to an action
9-26 that involves both claims that arose in this state and claims that
9-27 arose outside this state, a court shall consider each claim
10-1 individually and shall sever from the action the claims that are
10-2 subject to this section.
10-3 (h) A court shall determine that a claim arose in the
10-4 jurisdiction in which the plaintiff was located at the time the
10-5 plaintiff is alleged to have been exposed to asbestos fibers. If a
10-6 plaintiff alleges that the plaintiff was exposed to asbestos fibers
10-7 while located in more than one jurisdiction, the court shall
10-8 determine, for purposes of this section, which of the jurisdictions
10-9 is the most appropriate forum for the claim, considering the
10-10 relative amounts and lengths of the plaintiff's exposure to
10-11 asbestos fibers in each of the jurisdictions.
10-12 SECTION 3. Subsections (a) and (b), Section 71.031, Civil
10-13 Practice and Remedies Code, are amended to read as follows:
10-14 (a) An action for damages for the death or personal injury
10-15 of a citizen of this state, of the United States, or of a foreign
10-16 country may be enforced in the courts of this state, although the
10-17 wrongful act, neglect, or default causing the death or injury takes
10-18 place in a foreign state or country, if:
10-19 (1) a law of the foreign state or country or of this
10-20 state gives a right to maintain an action for damages for the death
10-21 or injury;
10-22 (2) the action is begun in this state within the time
10-23 provided by the laws of this state for beginning the action; [and]
10-24 (3) for a resident of a foreign state or country, the
10-25 action is begun in this state within the time provided by the laws
10-26 of the foreign state or country in which the wrongful act, neglect,
10-27 or default took place; and
11-1 (4) in the case of a citizen of a foreign country, the
11-2 country has equal treaty rights with the United States on behalf of
11-3 its citizens.
11-4 (b) Except as provided by Subsection (a), all [All] matters
11-5 pertaining to procedure in the prosecution or maintenance of the
11-6 action in the courts of this state are governed by the law of this
11-7 state.
11-8 SECTION 4. (a) Section 1 of this Act applies to:
11-9 (1) a civil action commenced on or after January 1,
11-10 1999, that is:
11-11 (A) an action against a railroad company brought
11-12 under the federal Employers' Liability Act (45 U.S.C. Section 51 et
11-13 seq.), the federal Safety Appliance Act (45 U.S.C. Section 1 et
11-14 seq.), or the federal Boiler Inspection Act (45 U.S.C. Section 22
11-15 et seq.); or
11-16 (B) an action in which it is alleged that the
11-17 personal injury or death was caused by a means of air
11-18 transportation operated in this state or occurred while traveling
11-19 in or on a means of air transportation during a trip originating
11-20 from or destined for a location in this state; and
11-21 (2) a civil action commenced on or after the effective
11-22 date of this Act, other than an action described in Subdivision (1)
11-23 of this section.
11-24 (b) Section 2 of this Act applies to a civil action that is
11-25 pending on the effective date of this Act, in which the plaintiff
11-26 alleges that harm was caused by exposure to asbestos fibers, and in
11-27 which the trial, or any new trial or retrial following motion,
12-1 appeal, or otherwise, begins on or after that date. In an action
12-2 commenced before the effective date of this Act, a trial, new
12-3 trial, or retrial that is in progress on that date is governed with
12-4 respect to the subject matter of Section 2 of this Act by the
12-5 applicable law in effect immediately before that date, and that law
12-6 is continued in effect for that purpose.
12-7 (c) Section 3 of this Act applies to a civil action
12-8 commenced on or after the effective date of this Act. A civil
12-9 action commenced before the effective date of this Act is governed
12-10 by the applicable law in effect immediately before that date, and
12-11 that law is continued in effect for that purpose.
12-12 SECTION 5. The importance of this legislation and the
12-13 crowded condition of the calendars in both houses create an
12-14 emergency and an imperative public necessity that the
12-15 constitutional rule requiring bills to be read on three several
12-16 days in each house be suspended, and this rule is hereby suspended,
12-17 and that this Act take effect and be in force from and after its
12-18 passage, and it is so enacted.