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.