By:  Sibley                                            S.B. No. 614
         99S0466/1                           
                                A BILL TO BE ENTITLED
                                       AN ACT
 1-1     relating to proportionate responsibility of persons who cannot
 1-2     feasibly be joined in a lawsuit.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1.  Section 33.003, Civil Practice and Remedies Code,
 1-5     is amended to read as follows:
 1-6           Sec. 33.003.  Determination of Percentage of Responsibility.
 1-7     The trier of fact, as to each cause of action asserted, shall
 1-8     determine the percentage of responsibility, stated in whole
 1-9     numbers, for the following persons with respect to each person's
1-10     causing or contributing to cause in any way the harm for which
1-11     recovery of damages is sought, whether by negligent act or
1-12     omission, by any defective or unreasonably dangerous product, by
1-13     other conduct or activity that violates an applicable legal
1-14     standard, or by any combination of these:
1-15                 (1)  each claimant;
1-16                 (2)  each defendant;
1-17                 (3)  each settling person; [and]
1-18                 (4)  each responsible third party who has been joined
1-19     under Section 33.004; and
1-20                 (5)  each responsible third party who cannot feasibly
1-21     be joined.
1-22           SECTION 2.  Subchapter A, Chapter 33, Civil Practice and
1-23     Remedies Code, is amended by adding Section 33.005 to read as
1-24     follows:
 2-1           Sec. 33.005.  DESIGNATION OF RESPONSIBLE THIRD PARTIES WHO
 2-2     CANNOT FEASIBLY BE JOINED.  (a)  A defendant seeking to have a
 2-3     person designated as a responsible third party who cannot feasibly
 2-4     be joined must file a notice with the court designating that person
 2-5     as a responsible third party who cannot feasibly be joined.  A
 2-6     notice filed under this subsection must be filed in accordance with
 2-7     the deadlines established for joining responsible third parties in
 2-8     Sections 33.004(a), (d), and (e).  Failure to file a notice within
 2-9     the established deadlines may be excused by the court upon a
2-10     showing of good cause.
2-11           (b)  A claimant may file an objection to a designation filed
2-12     under Subsection (a).  If an objection is filed, the court shall
2-13     determine whether the designation is proper.
2-14           (c)  A designation under this section is proper if the court
2-15     determines that the designated person meets the definition
2-16     established in Section 33.011(6)(C) and the defendant pleads
2-17     sufficient facts concerning the alleged responsibility of the
2-18     designated person to satisfy the pleading requirements of the Texas
2-19     Rules of Civil Procedure.
2-20           (d)  Filing of a notice under Subsection (a) or any finding
2-21     of fault against a responsible third party who cannot feasibly be
2-22     joined in a suit:
2-23                 (1)  does not by itself impose liability on the
2-24     responsible third party who cannot feasibly be joined; and
2-25                 (2)  may not be used in any other proceeding, on the
2-26     basis of res judicata, collateral estoppel, or any other legal
 3-1     theory, to impose liability on the responsible third party who
 3-2     cannot feasibly be joined.
 3-3           SECTION 3.  Subdivision (6), Section 33.011, Civil Practice
 3-4     and Remedies Code, is amended by adding Paragraph (C) to read as
 3-5     follows:
 3-6                       (C)  "Responsible third party who cannot feasibly
 3-7     be joined" includes:
 3-8                             (i)  the claimant's employer, if the
 3-9     employer maintained workers' compensation insurance coverage, as
3-10     defined by Section 401.011(44), Labor Code, at the time of the act,
3-11     event, or occurrence that is the basis of the claimant's suit; or
3-12                             (ii)  a person accused of performing a
3-13     criminal act that caused or contributed to causing the harm for
3-14     which the claimant seeks to recover damages, if there is clear and
3-15     convincing evidence that a criminal act occurred.  If the identity
3-16     of a person under this Subparagraph is not known, that person may
3-17     be identified as "Jane Doe" or "John Doe" provided that all known
3-18     identifying characteristics of this person are stated in the notice
3-19     of designation.
3-20           SECTION 4.  Subsection (b), Section 417.001, Labor Code, is
3-21     amended to read as follows:
3-22           (b)  If a benefit is claimed by an injured employee or a
3-23     legal beneficiary of the employee, the insurance carrier is
3-24     subrogated to the rights of the injured employee and may enforce
3-25     the liability of the third party in the name of the injured
3-26     employee or the legal beneficiary.  The insurance carrier's
 4-1     subrogation interest is limited to the amount of the total benefits
 4-2     assumed by the carrier or paid by the carrier to the employee or
 4-3     the legal beneficiary less the amount by which the court reduced
 4-4     the judgment based on the percentage of responsibility determined
 4-5     by the trier of fact pursuant to Section 33.003, Civil Practice and
 4-6     Remedies Code, attributable to an employer, as described in Section
 4-7     33.011(6)(C)(i), Civil Practice and Remedies Code. If the recovery
 4-8     is for an amount greater than the amount of the insurance carrier's
 4-9     subrogation interest [that paid or assumed by the insurance carrier
4-10     to the employee or the legal beneficiary], the insurance carrier
4-11     shall:
4-12                 (1)  reimburse itself and pay the costs from the amount
4-13     recovered; and
4-14                 (2)  pay the remainder of the amount recovered to the
4-15     injured employee or the legal beneficiary.
4-16           SECTION 5.  (a)  This Act takes effect September 1, 1999.
4-17           (b)  The changes in law made by this Act apply only to a
4-18     cause of action commenced on or after the effective date of this
4-19     Act.  A cause of action commenced before the effective date of this
4-20     Act is governed by the law in effect at the time the action was
4-21     commenced, and the former law is continued in effect for that
4-22     purpose.
4-23           SECTION 6.  The importance of this legislation and the
4-24     crowded condition of the calendars in both houses create an
4-25     emergency and an imperative public necessity that the
4-26     constitutional rule requiring bills to be read on three several
 5-1     days in each house be suspended, and this rule is hereby suspended.