1-1 By: Sibley S.B. No. 614
1-2 (In the Senate - Filed February 19, 1999; February 22, 1999,
1-3 read first time and referred to Committee on Economic Development;
1-4 April 14, 1999, reported favorably by the following vote: Yeas 6,
1-5 Nays 1; April 14, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to proportionate responsibility of persons who cannot
1-9 feasibly be joined in a lawsuit.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 33.003, Civil Practice and Remedies Code,
1-12 is amended to read as follows:
1-13 Sec. 33.003. Determination of Percentage of Responsibility.
1-14 The trier of fact, as to each cause of action asserted, shall
1-15 determine the percentage of responsibility, stated in whole
1-16 numbers, for the following persons with respect to each person's
1-17 causing or contributing to cause in any way the harm for which
1-18 recovery of damages is sought, whether by negligent act or
1-19 omission, by any defective or unreasonably dangerous product, by
1-20 other conduct or activity that violates an applicable legal
1-21 standard, or by any combination of these:
1-22 (1) each claimant;
1-23 (2) each defendant;
1-24 (3) each settling person; [and]
1-25 (4) each responsible third party who has been joined
1-26 under Section 33.004; and
1-27 (5) each responsible third party who cannot feasibly
1-28 be joined.
1-29 SECTION 2. Subchapter A, Chapter 33, Civil Practice and
1-30 Remedies Code, is amended by adding Section 33.005 to read as
1-31 follows:
1-32 Sec. 33.005. DESIGNATION OF RESPONSIBLE THIRD PARTIES WHO
1-33 CANNOT FEASIBLY BE JOINED. (a) A defendant seeking to have a
1-34 person designated as a responsible third party who cannot feasibly
1-35 be joined must file a notice with the court designating that person
1-36 as a responsible third party who cannot feasibly be joined. A
1-37 notice filed under this subsection must be filed in accordance with
1-38 the deadlines established for joining responsible third parties in
1-39 Sections 33.004(a), (d), and (e). Failure to file a notice within
1-40 the established deadlines may be excused by the court upon a
1-41 showing of good cause.
1-42 (b) A claimant may file an objection to a designation filed
1-43 under Subsection (a). If an objection is filed, the court shall
1-44 determine whether the designation is proper.
1-45 (c) A designation under this section is proper if the court
1-46 determines that the designated person meets the definition
1-47 established in Section 33.011(6)(C) and the defendant pleads
1-48 sufficient facts concerning the alleged responsibility of the
1-49 designated person to satisfy the pleading requirements of the Texas
1-50 Rules of Civil Procedure.
1-51 (d) Filing of a notice under Subsection (a) or any finding
1-52 of fault against a responsible third party who cannot feasibly be
1-53 joined in a suit:
1-54 (1) does not by itself impose liability on the
1-55 responsible third party who cannot feasibly be joined; and
1-56 (2) may not be used in any other proceeding, on the
1-57 basis of res judicata, collateral estoppel, or any other legal
1-58 theory, to impose liability on the responsible third party who
1-59 cannot feasibly be joined.
1-60 SECTION 3. Subdivision (6), Section 33.011, Civil Practice
1-61 and Remedies Code, is amended by adding Paragraph (C) to read as
1-62 follows:
1-63 (C) "Responsible third party who cannot feasibly
1-64 be joined" includes:
2-1 (i) the claimant's employer, if the
2-2 employer maintained workers' compensation insurance coverage, as
2-3 defined by Section 401.011(44), Labor Code, at the time of the act,
2-4 event, or occurrence that is the basis of the claimant's suit; or
2-5 (ii) a person accused of performing a
2-6 criminal act that caused or contributed to causing the harm for
2-7 which the claimant seeks to recover damages, if there is clear and
2-8 convincing evidence that a criminal act occurred. If the identity
2-9 of a person under this subparagraph is not known, that person may
2-10 be identified as "Jane Doe" or "John Doe," provided that all known
2-11 identifying characteristics of this person are stated in the notice
2-12 of designation.
2-13 SECTION 4. Subsection (b), Section 417.001, Labor Code, is
2-14 amended to read as follows:
2-15 (b) If a benefit is claimed by an injured employee or a
2-16 legal beneficiary of the employee, the insurance carrier is
2-17 subrogated to the rights of the injured employee and may enforce
2-18 the liability of the third party in the name of the injured
2-19 employee or the legal beneficiary. The insurance carrier's
2-20 subrogation interest is limited to the amount of the total benefits
2-21 assumed by the carrier or paid by the carrier to the employee or
2-22 the legal beneficiary less the amount by which the court reduced
2-23 the judgment based on the percentage of responsibility determined
2-24 by the trier of fact pursuant to Section 33.003, Civil Practice and
2-25 Remedies Code, attributable to an employer, as described in Section
2-26 33.011(6)(C)(i), Civil Practice and Remedies Code. If the
2-27 recovery is for an amount greater than the amount of the insurance
2-28 carrier's subrogation interest [that paid or assumed by the
2-29 insurance carrier to the employee or the legal beneficiary], the
2-30 insurance carrier shall:
2-31 (1) reimburse itself and pay the costs from the amount
2-32 recovered; and
2-33 (2) pay the remainder of the amount recovered to the
2-34 injured employee or the legal beneficiary.
2-35 SECTION 5. (a) This Act takes effect September 1, 1999.
2-36 (b) The changes in law made by this Act apply only to a
2-37 cause of action commenced on or after the effective date of this
2-38 Act. A cause of action commenced before the effective date of this
2-39 Act is governed by the law in effect at the time the action was
2-40 commenced, and the former law is continued in effect for that
2-41 purpose.
2-42 SECTION 6. The importance of this legislation and the
2-43 crowded condition of the calendars in both houses create an
2-44 emergency and an imperative public necessity that the
2-45 constitutional rule requiring bills to be read on three several
2-46 days in each house be suspended, and this rule is hereby suspended.
2-47 * * * * *