By: Fraser S.B. No. 1397
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 Section 33.003. Determination of Percentage of
1-8 Responsibility
1-9 The trier of fact, as to each cause of action asserted, shall
1-10 determine the percentage of responsibility, stated in whole
1-11 numbers, for the following persons with respect to each person's
1-12 causing or contributing to cause in any way the harm for which
1-13 recovery of damages is sought, whether by negligent act or
1-14 omission, by any defective or unreasonably dangerous product, by
1-15 other conduct or activity that violates an applicable legal
1-16 standard, or by any combination of these:
1-17 (1) each claimant;
1-18 (2) each defendant;
1-19 (3) each settling person; [and]
1-20 (4) each responsible third party subject to joinder who has
1-21 been joined under Section 33.004; and
1-22 (5) each responsible third party not subject to joinder who
1-23 has, pursuant to Section 33.005, been added to the persons against
2-1 whom responsibility for harm is to be determined.
2-2 SECTION 2. Section 33.004, Civil Practice and Remedies Code,
2-3 is amended to read as follows:
2-4 Section 33.004. Joinder of Responsible Third Parties Subject
2-5 to Joinder
2-6 (a) Except as provided in Subsections (d) and (3), prior to
2-7 the expiration of limitations on the claimant's claim for damages
2-8 against the defendant and on timely motion made for that purpose, a
2-9 defendant may seek to join a responsible third party subject to
2-10 joinder who has not been sued by the claimant.
2-11 (b) Nothing in this section shall affect the third-party
2-12 practice as previously recognized in the rules and statutes of this
2-13 state with regard to the assertion by a defendant of rights to
2-14 contribution or indemnity. Nothing in this section shall affect
2-15 the filing of cross-claims or counterclaims.
2-16 (c) A seller eligible for indemnity under Section 82.002
2-17 shall not be joined as a responsible third party subject to joinder
2-18 under this section unless there is alleged against the seller a
2-19 claim for relief based on the seller's negligence, intentional
2-20 misconduct, or other act or omission, such as negligently modifying
2-21 or altering a product, for which the seller is independently liable
2-22 to the claimant.
2-23 (d) A third-party claim by a defendant under this section
2-24 may be filed, even though the claimant's action against the
2-25 responsible third party subject to joinder would be barred by
2-26 limitations, if the third-party claim is filed on or before 30 days
3-1 after the date the defendant's answer is required to be filed.
3-2 This section shall not apply if the limitations period governing
3-3 the claimant's action against the defendant joining the responsible
3-4 third party subject to joinder is longer than the limitations
3-5 period governing the claimant's action against the responsible
3-6 third party subject to joinder.
3-7 (e) A claimant may join a responsible third party subject to
3-8 joinder, even though such joinder would otherwise be barred by
3-9 limitations, if the claimant seeks to join the responsible third
3-10 party subject to joinder not later than 60 days after a third-party
3-11 claim is filed under Subsection (d).
3-12 SECTION 3. Section 33.005, Civil Practice and Remedies Code,
3-13 shall be added:
3-14 Section 33.005. Addition of Responsible Third Parties Not
3-15 Subject to Joinder
3-16 (a) On timely motion made for that purpose, a defendant may
3-17 seek to add to the persons against whom responsibility for harm is
3-18 to be assessed any responsible third party not subject to joinder.
3-19 (b) A person not subject to joinder shall be added to the
3-20 persons against whom responsibility for harm may be assessed as a
3-21 responsible third party not subject to joinder if an affidavit or
3-22 other documentation appropriate to support a motion for summary
3-23 judgment indicates that the person is or may be liable to the
3-24 plaintiff for all or a part of the damages claimed against the
3-25 named defendant or defendants.
3-26 SECTION 4. Section 33.011, Civil Practice and Remedies Code,
4-1 is amended to read as follows:
4-2 Sec. 33.011. Definitions
4-3 In this chapter:
4-4 (1) "Claimant" means a party seeking recovery of damages
4-5 pursuant to the provisions of Section 33.001, including a
4-6 plaintiff, counterclaimant, cross-claimant, or third-party
4-7 plaintiff seeking recovery of damages. In an action in which a
4-8 party seeks recovery of damages for injury to another person,
4-9 damage to the property of another person, death of another person,
4-10 or other harm to another person, "claimant" includes both that
4-11 other person and the party seeking recovery of damages pursuant to
4-12 the provisions of Section 33.001.
4-13 (2) "Defendant" includes any party from whom a claimant
4-14 seeks recovery of damages pursuant to the provisions of Section
4-15 33.001 at the time of the submission of the case to the trier of
4-16 fact.
4-17 (3) "Liable defendant" means a defendant against whom a
4-18 judgment can be entered for at least a portion of the damages
4-19 awarded to the claimant.
4-20 (4) "Percentage of responsibility" means that percentage,
4-21 stated in whole numbers, attributed by the trier of fact to each
4-22 claimant, each defendant, each settling person, each responsible
4-23 third party subject to joinder who has been joined under Section
4-24 33.004, or each responsible third party not subject to joinder who
4-25 has been added to the persons against whom responsibility for harm
4-26 is to be determined with respect to causing or contributing to
5-1 cause in any way, whether by negligent act or omission, by any
5-2 defective or unreasonably dangerous product, by other conduct or
5-3 activity violative of the applicable legal standard, or by any
5-4 combination of the foregoing, the personal injury, property damage,
5-5 death, or other harm for which recovery of damages is sought.
5-6 (5) "Settling person" means a person who at the time of
5-7 submission has paid or promised to pay money or anything of
5-8 monetary value to a claimant at any time in consideration of
5-9 potential liability pursuant to the provisions of Section 33.001
5-10 with respect to the personal injury, property damage, death, or
5-11 other harm for which recovery of damages is sought.
5-12 (6)(A) "Responsible third party subject to joinder" means
5-13 any person to whom all of the following apply:
5-14 (i) the court in which the action was filed could exercise
5-15 jurisdiction over the person;
5-16 (ii) the person could have been, but was not, sued by the
5-17 claimant; and
5-18 (iii) the person is or may be liable to the plaintiff for
5-19 all or a part of the damages claimed against the named defendant or
5-20 defendants.
5-21 (B) The term "responsible third party subject to joinder"
5-22 does not include:
5-23 (i) the claimant's employer, if the employer maintained
5-24 workers' compensation insurance coverage, as defined by Section
5-25 401.011(44), Labor Code, at the time of the act, event, or
5-26 occurrence made the basis of the claimant's suit; or
6-1 (ii) a person or entity that is a debtor in bankruptcy
6-2 proceedings or a person or entity against whom this claimant's
6-3 claim has been discharged in bankruptcy, except to the extent that
6-4 liability insurance or other source of third-party funding may be
6-5 available to pay claims asserted against the debtor.
6-6 (7) (A) "Responsible third party not subject to joinder"
6-7 means any of the following persons who is or may be liable to the
6-8 plaintiff for all or a part of the damages claimed against the
6-9 named defendant or defendants:
6-10 (i) a person over whom the court in which the action was
6-11 filed could not exercise jurisdiction;
6-12 (ii) the claimant's employer, if the employer maintained
6-13 workers' compensation insurance coverage, as defined by Section
6-14 401.011(44), Labor Code, at the time of the act, event, or
6-15 occurrence made the basis of the claimant's suit; or
6-16 (iii) a person or entity that is a debtor in bankruptcy
6-17 proceedings or a person or entity against whom this claimant's
6-18 claim has been discharged in bankruptcy, except to the extent that
6-19 liability insurance or other source of third-party funding may be
6-20 available to pay claims asserted against the debtor.
6-21 (B) Assessments of percentages of responsibility for harm
6-22 for third parties not subject to joinder are used only to
6-23 accurately determine whether the other persons against whom
6-24 responsibility for harm is to be allocated caused any of a
6-25 plaintiff's harm and if so the percentage of responsibility for
6-26 harm of each such other person. If responsibility for harm is
7-1 assessed against a responsible third party not subject to joinder
7-2 in an action, that assessment does not make the responsible third
7-3 party not subject to joinder liable for any damages in that action
7-4 and shall not be introduced as evidence of liability in any other
7-5 proceeding.
7-6 ["Toxic tort" means a cause of action in tort or for breach
7-7 of implied warranty under Chapter 2, Business & Commerce Code, for
7-8 damages of any kind arising out of or caused by exposure to or the
7-9 deposit, discharge, or release into the environment of hazardous
7-10 chemicals, hazardous wastes, hazardous hydrocarbons, similarly
7-11 harmful organic or mineral substances, hazardous radiation sources,
7-12 and other similarly harmful substances, including torts arising out
7-13 of exposure to such substances in the work place, but not including
7-14 any "drug" as defined in Section 82.005(d)(2).]
7-15 SECTION 5. Section 33.013, Civil Practice and Remedies Code,
7-16 is amended to read as follows:
7-17 Sec. 33.013. Amount of Liability (a) Except as provided
7-18 in Subsections (b) and (c), a liable defendant is liable to a
7-19 claimant only for the percentage of the damages found by the trier
7-20 of fact equal to that defendant's percentage of responsibility with
7-21 respect to the personal injury, property damage, death, or other
7-22 harm for which the damages are allowed.
7-23 (b) Notwithstanding Subsection (a), each liable defendant
7-24 is, in addition to his liability under Subsection (a), jointly and
7-25 severally liable for the damages recoverable by the claimant under
7-26 Section 33.012 with respect to a cause of action if the percentage
8-1 of responsibility attributed to the defendant is greater than 50
8-2 percent.
8-3 (c) [Notwithstanding Subsections (a) and (b), each liable
8-4 defendant is, in addition to his liability under Subsection (a),
8-5 jointly and severally liable for the damages recoverable by the
8-6 claimant under Section 33.012 with respect to a cause of action if
8-7 the percentage of responsibility attributed to the defendant is
8-8 equal to or greater than 15 percent and:]
8-9 [(1) the claimant's personal injury, property damage, death,
8-10 or other harm is caused by the depositing, discharge, or release
8-11 into the environment of any hazardous or harmful substance as
8-12 described in Section 33.011(7); or]
8-13 [(2) the claimant's personal injury, property damage, death,
8-14 or other harm resulted from a toxic tort.]
8-15 [(d)] This section does not create a cause of action.
8-16 SECTION 6. (a) This Act applies to a civil action commenced
8-17 on or after the effective date of this Act or pending on the
8-18 effective date of this Act and in which the trial, or any new trial
8-19 or retrial following motion, appeal, or otherwise, begins on or
8-20 after that date.
8-21 (b) In an action commenced before the effective date of this
8-22 Act, a trial, new trial, or retrial that is in progress on that
8-23 date is governed with respect to the subject matter of this Act by
8-24 the applicable law in effect immediately before that date, and that
8-25 law is continued in effect for that purpose.
8-26 SECTION 7. This Act takes effect September 1, 2001.