By Nixon H.B. No. 117
77R378 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to proportionate responsibility in certain civil suits.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 33, Civil Practice and Remedies Code, is
1-5 amended to read as follows:
1-6 CHAPTER 33. PROPORTIONATE RESPONSIBILITY
1-7 [SUBCHAPTER A. PROPORTIONATE RESPONSIBILITY]
1-8 Sec. 33.001. DEFINITIONS. In this chapter:
1-9 (1) "Claimant" means a party seeking recovery of
1-10 damages, including a plaintiff, counterclaimant, cross-claimant, or
1-11 third party plaintiff seeking recovery of damages. In an action in
1-12 which a party seeks recovery of damages for injury to another
1-13 person, damage to the property of another person, death of another
1-14 person, or other harm to another person, "claimant" includes both
1-15 that other person and the party seeking recovery of damages.
1-16 (2) "Defendant" includes any party from whom a
1-17 claimant seeks recovery of damages at the time of the submission of
1-18 the case to the trier of fact.
1-19 (3) "Liable defendant" means a defendant against whom
1-20 a judgment can be entered for at least a portion of the damages
1-21 awarded to the claimant.
1-22 (4) "Percentage of responsibility" means that
1-23 percentage, stated in whole numbers, attributed by the trier of
1-24 fact to each claimant, each defendant, each settling person, or
2-1 each responsible third party with respect to causing or
2-2 contributing to cause in any way, whether by negligent act or
2-3 omission, by any defective or unreasonably dangerous product, by
2-4 other conduct or activity violative of the applicable legal
2-5 standard, or by any combination of the foregoing, the personal
2-6 injury, property damage, death, or other harm for which recovery of
2-7 damages is sought.
2-8 (5) "Settling person" means a person who at the time
2-9 of submission has paid or promised to pay money or anything of
2-10 monetary value to a claimant at any time in consideration of
2-11 potential liability with respect to the personal injury, property
2-12 damage, death, or other harm for which recovery of damages is
2-13 sought.
2-14 (6)(A) "Responsible third party" means any person to
2-15 whom all of the following apply:
2-16 (i) the court in which the action was
2-17 filed could exercise jurisdiction over the person;
2-18 (ii) the person could have been, but was
2-19 not, sued by the claimant; and
2-20 (iii) the person is or may be liable to
2-21 the plaintiff for all or a part of the damages claimed against the
2-22 named defendant or defendants.
2-23 (B) The term "responsible third party" does not
2-24 include:
2-25 (i) the claimant's employer, if the
2-26 employer maintained workers' compensation insurance coverage, as
2-27 defined by Section 401.011(44), Labor Code, at the time of the
3-1 act, event, or occurrence made the basis of the claimant's suit; or
3-2 (ii) a person or entity that is a debtor
3-3 in bankruptcy proceedings or a person or entity against whom this
3-4 claimant's claim has been discharged in bankruptcy, except to the
3-5 extent that liability insurance or other source of third party
3-6 funding may be available to pay claims asserted against the debtor
3-7 [PROPORTIONATE RESPONSIBILITY. In an action to which this chapter
3-8 applies, a claimant may not recover damages if his percentage of
3-9 responsibility is greater than 50 percent].
3-10 Sec. 33.002. APPLICABILITY. (a) This [Except as provided
3-11 by Subsections (b) and (c), this] chapter applies to any cause of
3-12 action based on tort in which a defendant, settling person, or
3-13 responsible third party is found responsible for a percentage of
3-14 the harm for which relief is sought.
3-15 (b) [Notwithstanding Subsection (a), a defendant who, with
3-16 the specific intent to do harm to others, acts in concert with
3-17 another person to engage in the conduct described in the following
3-18 sections of the Penal Code shall be jointly and severally liable
3-19 with such other person for the damages legally recoverable by the
3-20 claimant that were proximately caused by such conduct:]
3-21 [(1) Section 19.02 (murder);]
3-22 [(2) Section 19.03 (capital murder);]
3-23 [(3) Section 20.04 (aggravated kidnapping);]
3-24 [(4) Section 22.02 (aggravated assault);]
3-25 [(5) Section 22.011 (sexual assault);]
3-26 [(6) Section 22.021 (aggravated sexual assault);]
3-27 [(7) Section 22.04 (injury to child, elderly
4-1 individual, or disabled individual);]
4-2 [(8) Section 32.21 (forgery);]
4-3 [(9) Section 32.43 (commercial bribery);]
4-4 [(10) Section 32.45 (misapplication of fiduciary
4-5 property or property of financial institution);]
4-6 [(11) Section 32.46 (securing execution of document by
4-7 deception);]
4-8 [(12) Section 32.47 (fraudulent destruction, removal,
4-9 or concealment of writing); or]
4-10 [(13) conduct described in Chapter 31 the punishment
4-11 level for which is a felony of the third degree or higher.]
4-12 [(c)] This chapter does not apply to:
4-13 (1) an action to collect workers' compensation
4-14 benefits under the workers' compensation laws of this state
4-15 (Subtitle A, Title 5, Labor Code) or actions against an employer
4-16 for exemplary damages arising out of the death of an employee; or
4-17 (2) a claim for exemplary damages included in an
4-18 action to which this chapter otherwise applies.
4-19 (c) [(d) Notwithstanding anything to the contrary stated in
4-20 the sections of the Penal Code listed in Subsection (b), that
4-21 subsection shall not apply unless the claimant proves the defendant
4-22 acted or failed to act with intent to do harm as defined in this
4-23 section.]
4-24 [(e) For purposes of this section, a person acts with intent
4-25 to do harm with respect to the nature of the person's conduct and
4-26 the result of the person's conduct when it is the person's
4-27 conscious effort or desire to engage in such conduct for the
5-1 purpose of doing substantial harm to others.]
5-2 [(f) Nothing in this section shall require a submission to
5-3 the jury of a question regarding conduct by any party absent
5-4 sufficient evidence to support the submission.]
5-5 [(g) The jury shall not be made aware through voir dire,
5-6 introduction into evidence, instruction, or any other means that
5-7 the conduct to which Subsection (b) applies is defined by the Penal
5-8 Code.]
5-9 [(h)] This chapter applies to an action brought under the
5-10 Deceptive Trade Practices-Consumer Protection Act (Subchapter E,
5-11 Chapter 17, Business & Commerce Code).
5-12 Sec. 33.003. DETERMINATION OF PERCENTAGE OF RESPONSIBILITY.
5-13 The trier of fact, as to each cause of action asserted, shall
5-14 determine the percentage of responsibility, stated in whole
5-15 numbers, for the following persons with respect to each person's
5-16 causing or contributing to cause in any way the harm for which
5-17 recovery of damages is sought, whether by negligent act or
5-18 omission, by any defective or unreasonably dangerous product, by
5-19 other conduct or activity that violates an applicable legal
5-20 standard, or by any combination of these:
5-21 (1) each claimant;
5-22 (2) each defendant;
5-23 (3) each settling person; and
5-24 (4) each responsible third party who has been joined
5-25 under Section 33.004.
5-26 Sec. 33.004. JOINDER OF RESPONSIBLE THIRD PARTIES. (a)
5-27 Except as provided in Subsections (d) and (e), prior to the
6-1 expiration of limitations on the claimant's claim for damages
6-2 against the defendant and on timely motion made for that purpose, a
6-3 defendant may seek to join a responsible third party who has not
6-4 been sued by the claimant.
6-5 (b) Nothing in this section shall affect the third-party
6-6 practice as previously recognized in the rules and statutes of this
6-7 state with regard to the assertion by a defendant of rights to
6-8 contribution or indemnity. Nothing in this section shall affect
6-9 the filing of cross-claims or counterclaims.
6-10 (c) A seller eligible for indemnity under Section 82.002
6-11 shall not be joined as a responsible third party under this section
6-12 unless there is alleged against the seller a claim for relief based
6-13 on the seller's negligence, intentional misconduct, or other act or
6-14 omission, such as negligently modifying or altering a product, for
6-15 which the seller is independently liable to the claimant.
6-16 (d) A third party claim by a defendant under this section
6-17 may be filed, even though the claimant's action against the
6-18 responsible third party would be barred by limitations, if the
6-19 third party claim is filed on or before 30 days after the date the
6-20 defendant's answer is required to be filed. This section shall not
6-21 apply if the limitations period governing the claimant's action
6-22 against the defendant joining the responsible third party is longer
6-23 than the limitations period governing the claimant's action against
6-24 the responsible third party.
6-25 (e) A claimant may join a responsible third party, even
6-26 though such joinder would otherwise be barred by limitations, if
6-27 the claimant seeks to join the responsible third party not later
7-1 than 60 days after a third party claim is filed under Subsection
7-2 (d).
7-3 [SUBCHAPTER B. CONTRIBUTION]
7-4 [Sec. 33.011. DEFINITIONS. In this chapter:]
7-5 [(1) "Claimant" means a party seeking recovery of
7-6 damages pursuant to the provisions of Section 33.001, including a
7-7 plaintiff, counterclaimant, cross-claimant, or third-party
7-8 plaintiff seeking recovery of damages. In an action in which a
7-9 party seeks recovery of damages for injury to another person,
7-10 damage to the property of another person, death of another person,
7-11 or other harm to another person, "claimant" includes both that
7-12 other person and the party seeking recovery of damages pursuant to
7-13 the provisions of Section 33.001.]
7-14 [(2) "Defendant" includes any party from whom a
7-15 claimant seeks recovery of damages pursuant to the provisions of
7-16 Section 33.001 at the time of the submission of the case to the
7-17 trier of fact.]
7-18 [(3) "Liable defendant" means a defendant against whom
7-19 a judgment can be entered for at least a portion of the damages
7-20 awarded to the claimant.]
7-21 [(4) "Percentage of responsibility" means that
7-22 percentage, stated in whole numbers, attributed by the trier of
7-23 fact to each claimant, each defendant, each settling person, or
7-24 each responsible third party with respect to causing or
7-25 contributing to cause in any way, whether by negligent act or
7-26 omission, by any defective or unreasonably dangerous product, by
7-27 other conduct or activity violative of the applicable legal
8-1 standard, or by any combination of the foregoing, the personal
8-2 injury, property damage, death, or other harm for which recovery of
8-3 damages is sought.]
8-4 [(5) "Settling person" means a person who at the time
8-5 of submission has paid or promised to pay money or anything of
8-6 monetary value to a claimant at any time in consideration of
8-7 potential liability pursuant to the provisions of Section 33.001
8-8 with respect to the personal injury, property damage, death, or
8-9 other harm for which recovery of damages is sought.]
8-10 [(6)(A) "Responsible third party" means any person to
8-11 whom all of the following apply:]
8-12 [(i) the court in which the action was
8-13 filed could exercise jurisdiction over the person;]
8-14 [(ii) the person could have been, but was
8-15 not, sued by the claimant; and]
8-16 [(iii) the person is or may be liable to
8-17 the plaintiff for all or a part of the damages claimed against the
8-18 named defendant or defendants.]
8-19 [(B) The term "responsible third party" does not
8-20 include:]
8-21 [(i) the claimant's employer, if the
8-22 employer maintained workers' compensation insurance coverage, as
8-23 defined by Section 401.011(44), Labor Code, at the time of the
8-24 act, event, or occurrence made the basis of the claimant's suit; or]
8-25 [(ii) a person or entity that is a debtor
8-26 in bankruptcy proceedings or a person or entity against whom this
8-27 claimant's claim has been discharged in bankruptcy, except to the
9-1 extent that liability insurance or other source of third party
9-2 funding may be available to pay claims asserted against the debtor.]
9-3 [(7) "Toxic tort" means a cause of action in tort or
9-4 for breach of implied warranty under Chapter 2, Business & Commerce
9-5 Code, for damages of any kind arising out of or caused by exposure
9-6 to or the deposit, discharge, or release into the environment of
9-7 hazardous chemicals, hazardous wastes, hazardous hydrocarbons,
9-8 similarly harmful organic or mineral substances, hazardous
9-9 radiation sources, and other similarly harmful substances,
9-10 including torts arising out of exposure to such substances in the
9-11 work place, but not including any "drug" as defined in Section
9-12 82.005(d)(2).]
9-13 Sec. 33.005 [33.012]. AMOUNT OF RECOVERY. (a) The [If the
9-14 claimant is not barred from recovery under Section 33.001, the]
9-15 court shall reduce the amount of damages to be recovered by the
9-16 claimant with respect to a cause of action by a percentage equal to
9-17 the claimant's percentage of responsibility.
9-18 (b) If the claimant has settled with one or more persons,
9-19 the court shall further reduce the amount of damages to be
9-20 recovered by the claimant with respect to a cause of action by a
9-21 credit equal to one of the following, as elected in accordance with
9-22 Section 33.007 [33.014]:
9-23 (1) the sum of the dollar amounts of all settlements;
9-24 or
9-25 (2) a dollar amount equal to the sum of the following
9-26 percentages of damages found by the trier of fact:
9-27 (A) 5 percent of those damages up to $200,000;
10-1 (B) 10 percent of those damages from $200,001 to
10-2 $400,000;
10-3 (C) 15 percent of those damages from $400,001 to
10-4 $500,000; and
10-5 (D) 20 percent of those damages greater than
10-6 $500,000.
10-7 (c) The amount of damages recoverable by the claimant may
10-8 only be reduced once by the credit provided for in Subsection (b).
10-9 (d) This section shall not apply to benefits paid by or on
10-10 behalf of an employer to an employee pursuant to workers'
10-11 compensation insurance coverage, as defined in Section 401.011(44),
10-12 Labor Code, in effect at the time of the act, event, or occurrence
10-13 made the basis of claimant's suit.
10-14 Sec. 33.006 [33.013]. AMOUNT OF LIABILITY. (a) A [Except as
10-15 provided in Subsections (b) and (c), a] liable defendant is liable
10-16 to a claimant only for the percentage of the damages found by the
10-17 trier of fact equal to that defendant's percentage of
10-18 responsibility with respect to the personal injury, property
10-19 damage, death, or other harm for which the damages are allowed.
10-20 (b) [Notwithstanding Subsection (a), each liable defendant
10-21 is, in addition to his liability under Subsection (a), jointly and
10-22 severally liable for the damages recoverable by the claimant under
10-23 Section 33.012 with respect to a cause of action if the percentage
10-24 of responsibility attributed to the defendant is greater than 50
10-25 percent.]
10-26 [(c) Notwithstanding Subsections (a) and (b), each liable
10-27 defendant is, in addition to his liability under Subsection (a),
11-1 jointly and severally liable for the damages recoverable by the
11-2 claimant under Section 33.012 with respect to a cause of action if
11-3 the percentage of responsibility attributed to the defendant is
11-4 equal to or greater than 15 percent and:]
11-5 [(1) the claimant's personal injury, property damage,
11-6 death, or other harm is caused by the depositing, discharge, or
11-7 release into the environment of any hazardous or harmful substance
11-8 as described in Section 33.011(7); or]
11-9 [(2) the claimant's personal injury, property damage,
11-10 death, or other harm resulted from a toxic tort.]
11-11 [(d)] This section does not create a cause of action.
11-12 Sec. 33.007 [33.014]. ELECTION OF CREDIT FOR SETTLEMENTS. If
11-13 a claimant has settled with one or more persons, an election must
11-14 be made as to which dollar credit is to be applied under Section
11-15 33.005(b) [33.012(b)]. This election shall be made by any
11-16 defendant filing a written election before the issues of the action
11-17 are submitted to the trier of fact and, when made, shall be binding
11-18 on all defendants. If no defendant makes this election or if
11-19 conflicting elections are made, all defendants are considered to
11-20 have elected Subdivision (2) of Section 33.005(b) [33.012(b)].
11-21 [Sec. 33.015. CONTRIBUTION. (a) If a defendant who is
11-22 jointly and severally liable under Section 33.013 pays a percentage
11-23 of the damages for which the defendant is jointly and severally
11-24 liable greater than his percentage of responsibility, that
11-25 defendant has a right of contribution for the overpayment against
11-26 each other liable defendant to the extent that the other liable
11-27 defendant has not paid the percentage of the damages found by the
12-1 trier of fact equal to that other defendant's percentage of
12-2 responsibility.]
12-3 [(b) As among themselves, each of the defendants who is
12-4 jointly and severally liable under Section 33.013 is liable for the
12-5 damages recoverable by the claimant under Section 33.012 in
12-6 proportion to his respective percentage of responsibility. If a
12-7 defendant who is jointly and severally liable pays a larger
12-8 proportion of those damages than is required by his percentage of
12-9 responsibility, that defendant has a right of contribution for the
12-10 overpayment against each other defendant with whom he is jointly
12-11 and severally liable under Section 33.013 to the extent that the
12-12 other defendant has not paid the proportion of those damages
12-13 required by that other defendant's percentage of responsibility.]
12-14 [(c) If for any reason a liable defendant does not pay or
12-15 contribute the portion of the damages required by his percentage of
12-16 responsibility, the amount of the damages not paid or contributed
12-17 by that defendant shall be paid or contributed by the remaining
12-18 defendants who are jointly and severally liable for those damages.
12-19 The additional amount to be paid or contributed by each of the
12-20 defendants who is jointly and severally liable for those damages
12-21 shall be in proportion to his respective percentage of
12-22 responsibility.]
12-23 [(d) No defendant has a right of contribution against any
12-24 settling person.]
12-25 [Sec. 33.016. CLAIM AGAINST CONTRIBUTION DEFENDANT. (a) In
12-26 this section, "contribution defendant" means any defendant,
12-27 counterdefendant, or third-party defendant from whom any party
13-1 seeks contribution with respect to any portion of damages for which
13-2 that party may be liable, but from whom the claimant seeks no
13-3 relief at the time of submission.]
13-4 [(b) Each liable defendant is entitled to contribution from
13-5 each person who is not a settling person and who is liable to the
13-6 claimant for a percentage of responsibility but from whom the
13-7 claimant seeks no relief at the time of submission. A party may
13-8 assert this contribution right against any such person as a
13-9 contribution defendant in the claimant's action.]
13-10 [(c) The trier of fact shall determine as a separate issue
13-11 or finding of fact the percentage of responsibility with respect to
13-12 each contribution defendant and these findings shall be solely for
13-13 purposes of this section and Section 33.015 and not as a part of
13-14 the percentages of responsibility determined under Section 33.003.
13-15 Only the percentage of responsibility of each defendant and
13-16 contribution defendant shall be included in this determination.]
13-17 [(d) As among liable defendants, including each defendant
13-18 who is jointly and severally liable under Section 33.013, each
13-19 contribution defendant's percentage of responsibility is to be
13-20 included for all purposes of Section 33.015. The amount to be
13-21 contributed by each contribution defendant pursuant to Section
13-22 33.015 shall be in proportion to his respective percentage of
13-23 responsibility relative to the sum of percentages of responsibility
13-24 of all liable defendants and liable contribution defendants.]
13-25 Sec. 33.008 [33.017]. PRESERVATION OF EXISTING RIGHTS OF
13-26 INDEMNITY. Nothing in this chapter shall be construed to affect
13-27 any rights of indemnity granted to a seller eligible for indemnity
14-1 by Chapter 82, the Texas Motor Vehicle Commission Code (Article
14-2 4413(36), Vernon's Texas Civil Statutes), or any other statute, nor
14-3 shall it affect rights of indemnity granted by contract or at
14-4 common law. To the extent of any conflict between this chapter and
14-5 any right to indemnification granted by Section 82.002, the Texas
14-6 Motor Vehicle Commission Code (Article 4413(36), Vernon's Texas
14-7 Civil Statutes), or any other statute, contract, or common law,
14-8 those rights of indemnification shall prevail over the provisions
14-9 of this chapter.
14-10 SECTION 2. This Act takes effect September 1, 2001, and
14-11 applies only to a cause of action that accrues on or after that
14-12 date. An action that accrued before the effective date of this Act
14-13 is governed by the law applicable to the action immediately before
14-14 the effective date of this Act, and that law is continued in effect
14-15 for that purpose.