By Williams H.B. No. 3331
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to determining responsibility for harm and assigning joint
1-3 and several liability in tort actions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 33.003, Civil Practice and Remedies Code,
1-6 is amended to read as follows:
1-7 Sec. 33.003. Determination of Percentage of Responsibility.
1-8 The trier of fact, as to each cause of action asserted, shall
1-9 determine the percentage of responsibility, stated in whole
1-10 numbers, for the following persons with respect to each person's
1-11 causing or contributing to cause in any way the harm for which
1-12 recovery of damages is sought, whether by negligent act or
1-13 omission, by any defective or unreasonably dangerous product, by
1-14 other conduct or activity that violates an applicable legal
1-15 standard, or by any combination of these:
1-16 (1) each claimant;
1-17 (2) each defendant;
1-18 (3) each settling person; [and]
1-19 (4) each responsible third party subject to joinder
1-20 who has been joined under Section 33.004; and
1-21 (5) each responsible third party not subject to
1-22 joinder who has, pursuant to Section 33.005, been added to the
1-23 persons against whom responsibility for harm is to be determined.
2-1 SECTION 2. Section 33.004, Civil Practice and Remedies Code,
2-2 is amended to read as follows:
2-3 Sec. 33.004. Joinder of Responsible Third Parties SUBJECT TO
2-4 JOINDER. (a) Except as provided in Subsections (d) and (3), prior
2-5 to the expiration of limitations on the claimant's claim for
2-6 damages against the defendant and on timely motion made for that
2-7 purpose, a defendant may seek to join a responsible third party
2-8 subject to joinder who has not been sued by the claimant.
2-9 (b) Nothing in this section shall affect the third-party
2-10 practice as previously recognized in the rules and statutes of this
2-11 state with regard to the assertion by a defendant of rights to
2-12 contribution or indemnity. Nothing in this section shall affect
2-13 the filing of cross-claims or counterclaims.
2-14 (c) A seller eligible for indemnity under Section 82.002
2-15 shall not be joined as a responsible third party subject to joinder
2-16 under this section unless there is alleged against the seller a
2-17 claim for relief based on the seller's negligence, intentional
2-18 misconduct, or other act or omission, such as negligently modifying
2-19 or altering a product, for which the seller is independently liable
2-20 to the claimant.
2-21 (d) A third-party claim by a defendant under this section
2-22 may be filed, even though the claimant's action against the
2-23 responsible third party subject to joinder would be barred by
2-24 limitations, if the third-party claim is filed on or before 30 days
2-25 after the date the defendant's answer is required to be filed.
2-26 This section shall not apply if the limitations period governing
3-1 the claimant's action against the defendant joining the responsible
3-2 third party subject to joinder is longer than the limitations
3-3 period governing the claimant's action against the responsible
3-4 third party subject to joinder.
3-5 (e) A claimant may join a responsible third party subject to
3-6 joinder, even though such joinder would otherwise be barred by
3-7 limitations, if the claimant seeks to join the responsible third
3-8 party subject to joinder not later than 60 days after a third-party
3-9 claim is filed under Subsection (d).
3-10 SECTION 3. Section 33.005, Civil Practice and Remedies Code,
3-11 shall be added:
3-12 Sec. 33.005. ADDITION OF RESPONSIBLE THIRD PARTIES NOT
3-13 SUBJECT TO JOINDER. (a) On timely motion made for that purpose, a
3-14 defendant may seek to add to the persons against whom
3-15 responsibility for harm is to be assessed any responsible third
3-16 party not subject to joinder.
3-17 (b) A person not subject to joinder shall be added to the
3-18 persons against whom responsibility for harm may be assessed as a
3-19 responsible third party not subject to joinder if an affidavit or
3-20 other documentation appropriate to support a motion for summary
3-21 judgment indicates that the person is or may be liable to the
3-22 plaintiff for all or a part of the damages claimed against the
3-23 named defendant or defendants.
3-24 SECTION 4. Section 33.011, Civil Practice and Remedies Code,
3-25 is amended to read as follows:
3-26 Sec. 33.011. Definitions. In this chapter:
4-1 (1) "Claimant" means a party seeking recovery of
4-2 damages pursuant to the provisions of Section 33.001, including a
4-3 plaintiff, counterclaimant, cross-claimant, or third-party
4-4 plaintiff seeking recovery of damages. In an action in which a
4-5 party seeks recovery of damages for injury to another person,
4-6 damage to the property of another person, death of another person,
4-7 or other harm to another person, "claimant" includes both that
4-8 other person and the party seeking recovery of damages pursuant to
4-9 the provisions of Section 33.001.
4-10 (2) "Defendant" includes any party from whom a
4-11 claimant seeks recovery of damages pursuant to the provisions of
4-12 Section 33.001 at the time of the submission of the case to the
4-13 trier of fact.
4-14 (3) "Liable defendant" means a defendant against whom
4-15 a judgment can be entered for at least a portion of the damages
4-16 awarded to the claimant.
4-17 (4) "Percentage of responsibility" means that
4-18 percentage, stated in whole numbers, attributed by the trier of
4-19 fact to each claimant, each defendant, each settling person, each
4-20 responsible third party subject to joinder who has been joined
4-21 under Section 33.004, or each responsible third party not subject
4-22 to joinder who has been added to the persons against whom
4-23 responsibility for harm is to be determined with respect to causing
4-24 or contributing to cause in any way, whether by negligent act or
4-25 omission, by any defective or unreasonably dangerous product, by
4-26 other conduct or activity violative of the applicable legal
5-1 standard, or by any combination of the foregoing, the personal
5-2 injury, property damage, death, or other harm for which recovery of
5-3 damages is sought.
5-4 (5) "Settling person" means a person who at the time
5-5 of submission has paid or promised to pay money or anything of
5-6 monetary value to a claimant at any time in consideration of
5-7 potential liability pursuant to the provisions of Section 33.001
5-8 with respect to the personal injury, property damage, death, or
5-9 other harm for which recovery of damages is sought.
5-10 (6)(A) "Responsible third party subject to joinder"
5-11 means any person to whom all of the following apply:
5-12 (i) the court in which the action was
5-13 filed could exercise jurisdiction over the person;
5-14 (ii) the person could have been, but was
5-15 not, sued by the claimant; and
5-16 (iii) the person is or may be liable to
5-17 the plaintiff for all or a part of the damages claimed against the
5-18 named defendant or defendants.
5-19 (B) The term "responsible third party subject to
5-20 joinder" does not include:
5-21 (i) the claimant's employer, if the
5-22 employer maintained workers' compensation insurance coverage, as
5-23 defined by Section 401.011(44), Labor Code, at the time of the act,
5-24 event, or occurrence made the basis of the claimant's suit; or
5-25 (ii) a person or entity that is a debtor
5-26 in bankruptcy proceedings or a person or entity against whom this
6-1 claimant's claim has been discharged in bankruptcy, except to the
6-2 extent that liability insurance or other source of third-party
6-3 funding may be available to pay claims asserted against the debtor.
6-4 (7)(A) "Responsible third party not subject to
6-5 joinder" means any of the following persons who is or may be liable
6-6 to the plaintiff for all or a part of the damages claimed against
6-7 the named defendant or defendants:
6-8 (i) a person over whom the court in which
6-9 the action was filed could not exercise jurisdiction;
6-10 (ii) the claimant's employer, if the
6-11 employer maintained workers' compensation insurance coverage, as
6-12 defined by Section 401.011(44), Labor Code, at the time of the act,
6-13 event, or occurrence made the basis of the claimant's suit; or
6-14 (iii) a person or entity that is a debtor
6-15 in bankruptcy proceedings or a person or entity against whom this
6-16 claimant's claim has been discharged in bankruptcy, except to the
6-17 extent that liability insurance or other source of third-party
6-18 funding may be available to pay claims asserted against the debtor.
6-19 (B) Assessments of percentages of responsibility
6-20 for harm for third parties not subject to joinder are used only to
6-21 accurately determine whether the other persons against whom
6-22 responsibility for harm is to be allocated caused any of a
6-23 plaintiff's harm and if so the percentage of responsibility for
6-24 harm of each such other person. If responsibility for harm is
6-25 assessed against a responsible third party not subject to joinder
6-26 in an action, that assessment does not make the responsible third
7-1 party not subject to joinder liable for any damages in that action
7-2 and shall not be introduced as evidence of liability in any other
7-3 proceeding.
7-4 ["Toxic tort" means a cause of action in tort or for breach
7-5 of implied warranty under Chapter 2, Business & Commerce Code, for
7-6 damages of any kind arising out of or caused by exposure to or the
7-7 deposit, discharge, or release into the environment of hazardous
7-8 chemicals, hazardous wastes, hazardous hydrocarbons, similarly
7-9 harmful organic or mineral substances, hazardous radiation sources,
7-10 and other similarly harmful substances, including torts arising out
7-11 of exposure to such substances in the work place, but not including
7-12 any "drug" as defined in Section 82.005(d)(2).]
7-13 SECTION 5. Section 33.013, Civil Practice and Remedies Code,
7-14 is amended to read as follows:
7-15 Sec. 33.013. Amount of Liability. (a) Except as provided in
7-16 Subsections (b) and (c), a liable defendant is liable to a claimant
7-17 only for the percentage of the damages found by the trier of fact
7-18 equal to that defendant's percentage of responsibility with respect
7-19 to the personal injury, property damage, death, or other harm for
7-20 which the damages are allowed.
7-21 (b) Notwithstanding Subsection (a), each liable defendant
7-22 is, in addition to his liability under Subsection (a), jointly and
7-23 severally liable for the damages recoverable by the claimant under
7-24 Section 33.012 with respect to a cause of action if the percentage
7-25 of responsibility attributed to the defendant is greater than 50
7-26 percent.
8-1 (c) [Notwithstanding Subsections (a) and (b), each liable
8-2 defendant is, in addition to his liability under Subsection (a),
8-3 jointly and severally liable for the damages recoverable by the
8-4 claimant under Section 33.012 with respect to a cause of action if
8-5 the percentage of responsibility attributed to the defendant is
8-6 equal to or greater than 15 percent and:]
8-7 [(1) the claimant's personal injury, property damage,
8-8 death, or other harm is caused by the depositing, discharge, or
8-9 release into the environment of any hazardous or harmful substance
8-10 as described in Section 33.011(7); or]
8-11 [(2) the claimant's personal injury, property damage,
8-12 death, or other harm resulted from a toxic tort.]
8-13 [(d)] This section does not create a cause of action.
8-14 SECTION 6. (a) This Act applies to a civil action commenced
8-15 on or after the effective date of this Act or pending on the
8-16 effective date of this Act and in which the trial, or any new trial
8-17 or retrial following motion, appeal, or otherwise, begins on or
8-18 after that date.
8-19 (b) In an action commenced before the effective date of this
8-20 Act, a trial, new trial, or retrial that is in progress on that
8-21 date is governed with respect to the subject matter of this Act by
8-22 the applicable law in effect immediately before that date, and that
8-23 law is continued in effect for that purpose.
8-24 SECTION 7. The importance of this legislation and the
8-25 crowded condition of the calendars in both houses create an
8-26 emergency and an imperative public necessity that the
9-1 constitutional rule requiring bills to be read on three several
9-2 days in each house be suspended, and this rule is hereby suspended.