Stewart Title Guaranty Co. v. Sterling

TITLE GUARANTY STEWART

COMPANY, Petitioner, STERLING, W. Dawson Trustee. No. C-8910. Supreme Court of Texas.

Dec. 1991. Rehearing Overruled Feb. Pitman, McConnell,

Eugene J. J. Paul III, Hudspeth, Bradley Todes, C.M. S. De Pitman, Lange, Hudspeth Houston, & Wallace, Wallace, James P. & Soules Aus- tin, petitioner. Hutcheson, T.

Thomas Roland M. Cham- berlain, Gorman, E. Rudy England, John A. L.L.P., Houston, Grundy, Hutcheson & respondent.

OPINION

GONZALEZ, Justice. principal issue on which we focus this case is whether a defendant who 21.21, violating found liable for Art. 16§ of the Texas Insurance Code can reduce setting off the amount of a amount settlement into entered co-defendants. nonset- defendant, tling Guaranty Company, sought a credit based on the “one satisfaction rule.” This doctrine was first articulated in Texas in Bradshaw v. Baylor University, 84 S.W.2d (Tex.1935), purpose and its is to limit an injured party single to a satisfaction for injury. The main issue here is whether applies. doctrine The trial Bradshaw credit, court and the refused allow the appeals judgment court of affirmed the (1989). court. 772 the trial S.W.2d appeals this The court reasoned completely abrogated one satis- faction rule in all its decision in cases with v. Cessna Duncan Aircraft (Tex.1984). disagree, We judgment of and therefore we reverse the to the trial the court and remand It complete is the tached to deed. render consistent with court to opinion. will be insured Stew- description which [Title]_” Additionally, Sterling tes- art FACTS Binion, Equitable, Butler & tified lawyer, Sterling, Equitable him W. Dawson Title told Stewart broker, developer, pur- occupied real estate and acres land. owned the 1.38597 of $521,189 chased 173.7297 acres of land for the title Both the title commitment and He develop to a residential subdivision. Title contained policy issued Stewart purchase price of the as a received included the property description which seller, Eq- real commission. The estate lots. three the Society Life Assurance of Unit- uitable sign a Sterling required was to “Waiver States, property through ed obtained the closing the stated Inspection” of at which Equitable’s an earlier foreclosure. counsel except policy would that Stewart Title’s As part firm of Butler & Binion. was the coverage rights parties pos- in from the transaction, Sterling sought to of the ac- session, “the existence of which does comprised quire title to 1.38597 acres that Inspec- appear of record.” “Waiver Ownership of improved three homesites. provided tion” as follows: his these lots was essential to ensure abili- municipal utility ty to control the district hereby inspection by you I of such waive Sterling, Equitable, the subdivision. and your subject accept policy property and Butler & Binion were aware that the three in rights parties possession, and to improved occupied, homesites were hold, they any and to under whom they erroneously Equitable assumed that roadway or ease- apparent and visible closing, Sterling Prior to was the owner.1 subject property, or the ment over across survey that an earlier made for discovered appear of of which does not the existence Equitable had excluded the 1.38597 acres. record, parties are not in any if such Sterling survey discussed this with at- of, roadway possession if or such torney Butler Binion informed & who upon the premises affects easement Sterling survey plat the incorrect was policy, issued you have such in and that the 1.38597acres were included upon myself inspect prem- to such take it signing Immediately the sale. before from possession thereof ises and obtain closing documents, Sterling sought and ob- occupants. present Equitable, tained from Butler assurances & Sterling previously commitment title Binion, Guaranty Title Compa- and Stewart clause. How- did not contain this received ny that the three lots would included in be ever, actually Stewart policy issued survey the transaction and that the Pol- clause. The Owner’s Title included the agent, closing incorrect. Stewart Title’s pro- Sterling by icy to issued Camerson, Murray stated that the owner’s vided: policy Sterling issued to would describe all Policy subject the Conditions This She also land the commitment. hereof, terms and Stipulations policy guarantee stated would in- leases or easements conditions good property. title and indefeasible A, sured, any, if shown Schedule attorney A & Binion second with Butler are addi- following matters which Sterling currently drawn assured that “[a]s exceptions coverage from three tional survey does not include lots parties in Policy_24. Rights of this property included within the de- which are possession. II scription of Lockshire which will at- coverage because there persons possession three ed the three lots from lots conveyances prior outstanding lots At time obtained these deeds them. were transaction, Eq- transaction, At the time of the owners. Stewart’s files contained own on notice that uitable and Butler & Binion were that individ- which reflected several documents question. the tracts in Before others owned Equitable Equitable to the three held title uals other than Sterling, someone contracted lots. exclud- a title commitment which else obtained

Significantly, qualifying language, Sterling “the cause accept title; an inferior existence of appear which does not and that Stewart Title wrongfully denied record,” which was included in the waiver policy. under the Sterling sought signed by Sterling, was omitted from the joint and several liability against all defen- policy issued closing, to him. At the Ster- dants. The two lawsuits were consolidated ling signed the inspection waiver of and for trial. accepted policy the title which also recited Sometime after the began, Eq- trial exception. uitable Butler & Binion settled with Sterling for and were dismissed PROCEDURAL HISTORY from the suit. The proceeded case to trial Sterling After learned that he did not against jury Stewart Title and the found: good lots, have title to the three he assert- 1) that knowingly Stewart Title engaged in ed a claim under Stewart policy. Title’s improper practices;3 2) trade that these Stewart Title coverage denied on the basis actions producing were the cause of dam- that the policy owner’s excep- contained an ages 3) Sterling; Sterling that sus- rights parties for the possession. tained consequential actual and 1983, Stewart Title declaratory filed a damages.4 Sterling elected to un- recover

judgment action to Sterling’s determine 21.21, der Article 16 of the Insurance § rights policy. suit, under the In separate provides Code which that the actual dam- Sterling Title, sued Equitable, Stewart age award upon be trebled showing for, Butler among & Binion things, liability.5 Stewart Title attempted to violations Code, of the Insurance violations invoke the “one satisfaction rule” of Brad- Deceptive Act,2 of the Trade neg- Practices shaw, and thus pre-trebling obtain a ligence, gross negligence, and fraud. Ster- already paid for the amount Sterling ling alleged that he contracted Eq- with defendants. Stewart Title ar- purchase uitable for the of land including gued Sterling $400,- that already received occupied the area Equitable when and But- compensation 000 as for ler & Binion knew that previ- this area had $200,000. Therefore, ously conveyed been settlement credit occupants; would additionally, damage reduce the Sterling award upon relied representations Stewart Title to promises leaving nothing $0 of each of the to tre- defendants in closing rejected ble. The trial court transaction and Stewart Title’s would argument, otherwise not purchased have denied any credit and rendered property. Sterling alleged Sterling against he later for Stewart Title learned that acquire $1,028,372.60 he did not ($200,000 trebled, title to for plus lots; these that the conspired defendants prejudgment fees). interest and attorney’s cents, Tex.Bus. & Com.Code § 17.41-.63 any. Answer in dollars and (hereinafter if “DTPA”). $200,000.00 ANSWER: jury (1) was instructed to consider the 3. The 15, also found that 1983, Stewart Title know- July "fair market value on ingly engaged practices. in unfair settlement property (2) “any to which title failed" and con- challenges We need not address Stewart Title’s sequential damages naturally resulted finding, to this because we conclude that the therefrom.” improper practices finding trade was sufficient recovery. 5. Because the suit was filed before the date upon which the amended Insurance Code art. 4. Issue no. was damage 21.21, issue. It effective, stated: pre-amend 16 became § applies approved ment version to this case. Act money you What amount of do find from a 22, 1909, R.S., 1909, 4954, Leg., March 31st art. preponderance of the evidence constitutes W. 192, 192, (1909), ch. 1909 Tex.Gen.Laws Sterling’s damages, any, Dawson actual if 17, 1929, approved May amended Act produced by any deceptive practic- were es, 41st trade C.S.1929, 3, 1, action, Leg., 1st ch. 1929Tex.Gen.Laws § unconscionable action or course of (1929), practice, by, approved April improper unfair claims settlement amended Act R.S.1985, 22, 3, practice, any, Leg., by you trade if found 69th ch. § to have 1985 Tex. (current Guaranty been committed Stewart Title Gen.Laws version at Tex.Ins. 21.21, Company? (1991)). Code art. 16§ alleges judg- that it enti appeals affirmed the The court of from settlement under tled to an off-set the trial court. ment of doctrine satisfaction rule. This inter developed at law common ONE SATISFACTION RULE original application of the pretation and law de time, statute. This common Texas four con- contribution At this has distinct necessary, the stat velopment was because on statute tribution schemes—three based implications of ute did address at common and one created law. Tex. Civ. partial settlement contribution. (1986) et seq. 32.001 § & Rem. Code Prac. (the statute); original former contribution discussing primary case sat seq. et 33.001 § Baylor Prac. & Rem. Code isfaction rule is Bradshaw v. Uni Tex. Civ. (1986), Leg., by Acts 70th amended In that Bradshaw sustained versity. C.S., (the comparative neg- 1st ch. 2.04 injuries Baylor University personal § when a ligence statute); Tex. riding he was collided with a bus on which Prac. Rem. Code Civ. & (1991)(the seq. et re 33.001 the rail train. He settled statute); sponsibility Duncan v. Cessna company road and the suit continued (Tex. against Baylor. rejected Brad Aircraft (common compa 1984) by to obtain additional law contribution shaw’s efforts causation). Baylor applicable contribu and wrote: rative The by Bradshaw, tion scheme is determined the theories right has who has [W]hat liability adjudged against of the tort- compensated injuries, fully been for his Corp. Jinkins, damages? only feasors. Beech The to recover further Aircraft 20 (Tex.1987). justice S.W.2d answer which accords is he has none. the authorities that The comparative negligence ap- statute $6,500, paid if the date jury found that at plies only pure negligence in cases filed trial, compensate of would him for the September 1987. before The Duncan injuries had sustained. He theretofore comparative applies only causation scheme exact is a rule paid been amount. It involving liability, to products cases strict acceptation injured general that an warranty, mixed breach of theories of to party is entitled satisfaction liability negligence strict tried after by injuries sustained him. That the July 13,1983. Duncan, 665 at 434. S.W.2d by in sense the cir- rule is modified legislature compa- In the enacted the wrong- cumstance that more than merged responsibility rative statute which inju- bring about his doer contributed comparative negligence statute with being injury, There but one there ries. holdings Duncan. Tex. Prac. & Civ. can, justice, in be but one satisfaction (1991). seq. 33.001 et § Rem. Code injury. Sep- date of this statute is effective new S.W.2d 705. 2, 1987, September Act of tember 1987. appeals and the dissent sub- The court C.S., 2, 4.05, Leg., 70th 1st ch. Tex. § inapplicable to all mit that Bradshaw GemLaws in light the decision Duncan v. cases Co., 414, 434 Cessna Aircraft This case was filed before ef However, (Tex.1984). by noted the dis- responsibili comparative fective date of the sent, merely overruled Bradshaw Duncan statute; therefore, clearly ty that statute is opin- “to it with this the extent conflicts Additionally, inapplicable. because the ion_” Duncan, at 432. negligence applies only comparative statute negligence is the necessary cases It to remember that Dun- involved, negli comparative original statute theory contribution can and (former gence developed to ad- statute distinct schemes two & Rem. Tex.Civ.Prac. Thus, 33.001) inapplicable. liability tortfeasors. dress between § Code Although original Jinkins, remaining options are at 20. two S.W.2d original applicability contribution statute and contribution Duncan. statute has been by Duncan, limited both the enact- In we did not authorize double recovery. Rather, ment of former Tex.Civ.Prac. we observed that & Rem.Code problem of recovery double can be avoided seq. 33.001 et development comparative when fault issues are sub- Duncan, it is still viable.6 against mitted a nonsettling defendant. court of stated that Duncan Because there is no fault allo- rejected fact, the one satisfaction rule. In torts, cation for problem intentional Duncan did not abolish the one satisfac- remains, recovery double princi- and thus merely rule but modified the method in ples equity demand some form of dam which the rule apply specific would age adjustment mechanism. There is no reason cases. In we should allow compara- we created a a windfall double involving cases multiple defen tive causation product scheme for dants when double clearly pro suits. 665 S.W.2d at 429. This court noted single hibited defendant. See that the legislature’s “... decision to limit Mayo v. John Hancock Mut. Ins. Life [Chap. negligence cases does not ... 33] (Tex.1986); 711 S.W.2d 7 see also Ameri preclude this court from fashioning a com- can Systems, Baler Co. v. SRS comparative apportionment mon law sys- 246 (Tex.App. [1st — Houston products tem for strict liability cases.” Id. denied) (explaining Mayo). Dist.] at 427. The Duncan court stated that “in Jinkins, this court recognized the con cases not controlled statutory com- [the viability tinued original contribution parative negligence scheme], system following statute Duncan decision adopt we comparison will plain- allow stating “any remaining tort actions conduct, tiff’s whether it is characterized covered compara or the [Duncan ] risk, assumption misuse, as of or failure to negligence tive statute are the domain of mitigate damages, or avoid with the con- original the contribution statute.” Jin product defendant, duct or of a whether kins, 739 S.W.2d at 20.7 Because this case the suit combines or crashworthiness scope involves a tort not within the of products theories of liability, strict breach former Tex.Civ.Prac. & Rem.Code 33.001 warranty, negligence.” of or Id. at 428. seq. Duncan, et or original the contribution Therefore, instead of the dollar for dollar judicial history statute and its applica of Bradshaw, credit as set in forth the result interpretation tion and applicable. Jin- of the one satisfaction rule is achieved a kins, Thus, 739 S.W.2d at 20. applica the percentage of causation allocation for those tion of the one satisfaction rule as devel involving products cases liability strict and oped original under the statute contribution breach of warranty. appropriately applied to this case.8 6. The enactment of former TEX.CIV.PRAC. & the Insurance Code and intentional torts. TEX. seq. appli- REM.CODE et 33.002(a), § 33.001 restricted the (b)(2) CIV.PRAC. & REM.CODE § original cation of the Therefore, contribution statute (b)(3). and even under the most removing involving only negligence cases from reform, legislative recent enactments in tort scope. original its Duncan also restricted the exempted subject these theories of application by establishing contribution statute’s application original to the contribution a products causation scheme for all statute. cases where a defendant is found liable on the products liability, basis of strict breach of war- decision, 8.Additionally, following the Duncan ranty, products liability and mixed theories of acknowledged application this court that the of negligence. and at 430. Ojeda the one satisfaction rule is still viable in Wise, (Tex.1988). de Toca v. 748 S.W.2d It should be noted that the recent tort reform Wise, granted legislation In original the court a writ to determine did not effect the contribu- Therefore, prop- whether constructive notice original tion statute. under the real the contribu- erty recording operates year judicial tion statutes as a defense a application statute and its 70 buyer’s interpretation and action for under the DTPA. remains valid for all torts scope plaintiff purchased outside of the The a house de- the other contribution which was Additionally, City pursuant schemes. legislation molished the new contribution the of Houston to an expand underlying theory previously county did not the order filed in the deed specifically buyer of Duncan to all torts. The statute records. The DTPA, sued the seller under the DTPA, exempts scope negligence. from its suits based on the as well as for fraud and She bar, In the the court case INJURY

SINGLE Sterling addi- could obtain reasoned that applies to The one satisfaction rule for acts damages from Stewart Title tional obtaining plaintiff from more prevent a violating Article misrepresentations injury. Ap recovery for the same than one “nei- Insurance Code because 21.21 pellate applied have the one satisfac courts seller, counsel, could legal nor its ther the defendants commit the rule when Any committed such violations. have com act as well as defendants same when might have misrepresentation fraud differing mit result technically acts which settling by the defendants committed been single appellate injury. In a property a concerning the sale held in an action under court decision resulting from injury from the one distinct DTPA, plaintiff was not allowed to a misrepresentation concerning its Stewart’s recovery for dam a double actual obtain at 248. We policy.” 772 S.W.2d insurance ages. Sys American Baler Co. v. SRS Toca v. disagree. Ojeda As de tems, (Tex.App.- Wise, (Tex.1988), in- denied). In Houston [1st Dist.] Wise, multiple defendants. volved SRS, plaintiff multiple sued defendants companies settled title insurance while fraud, contract, negligent breach This court treated seller continued to trial. misrepresentation, DTPA re violations all defendants in as the acts of Wise lating purchase installation and/or causing single preclude did injury a conveyor. deter a baler and obtaining nonsettling defendant damages regarding mined each defendant prior settlement. The credit based trial under each cause action. The though the credit could be allowed even request by the defendants that refused nonsettling not have com- defendant could remedy. appeal, elect a On plaintiff settling defen- mitted the same acts argued damage defendants com- it not an insurance dants because was award, allowed under each defen- pany. wrongful conduct all action, misrepre- of the four causes of resulted in a fraud dants Wise involved damages. in- multiple recovery Similarly, of actual the case at bar sentation. nonsettling argued plaintiff seller and that each cause action volves act,” Sterling suf- insurer. The result that of was the result a “different of injury one and the actions fered plaintiff for fully thus the could recover injury did cause a distinct Title not wrongful Stewart appellate each act. The court causes, Sterling apart from seller’s acts. to all held that of of action were Wise, we similar circumstances Under upon misrepresentations based connected nonsettling had defendants said that the they to of the equipment, the sale and thus insur- request to credit for the title right upon wrongful were the same act. based Although not companies’ ance settlement. The appellate applied this court’s de Bradshaw, applied the ra- mentioning we cision in Mayo John Hancock Mutual the one satisfaction rule. tionale of (Tex.1986), Ins. S.W.2d Life prohibit Mayo and concluded that injury, because Wise, buyer suffered one In i.e., ed double even when different of her home. This was the destruction involved, plaintiffs acts could not injury were and was caused an indivisible settling nonsettling defen- doubly damages for and the recover actual caused both Therefore, misrepresentations. recognized the court dants. the same City’s companies ing did not relieve with demolition order sued two title insurance also liability or for application under DTPA the seller she settled after the for whom also fraud. We stated: filed. trial court rendered error was buyer. judgment prejudice for the The court to the is without [0]ur remand, reversed, recording defendant], concluding right to re that on [seller [plain provided City’s quest constructive amount of demolition order a credit based settling defen a defense as a matter settlement tiffs] [the notice constituted buyer’s We to the DTPA and fraud claims. dants]. law holding the record- 748 S.W.2d at 451. reversed and remanded ability 21.21, nonsettling defendant to ob- 16 of the Insurance Code. Stew- § tain a credit based on art Title the settlement. Ster- reasons that its is extin- guished ling suffered because the found injury, namely, one actual dam- his ages Sterling failure ownership to obtain received of the three $400,000 in settlement. If the credit is lots. This injury was an indivisible caused applied prior trebling, damage to the actual settling both the nonsettling defen- zero, award is reduced thereby relieving to dants. There can be but Stewart Title of liability.9 This is a injury, and the fact that more than one impression case first as this issue relates may defendant have injury caused the damage provision treble of Insur- that there theory be more than one 21.21, ance Code Article liability, does modify this rule. Stewart Title relies on Smith v. Bald In this Sterling purchased land un- win, (Tex.1980) sup to der the belief obtaining that he was title to port argument its that the credit should be the three settling water district lots. The applied Smith, pre-trebling. Baldwin misrepresented defendants Sterling to contracted to build a house for Smith. he good would receive title to these lots. Smith moved into the house before it was Likewise, agent misrepre- Stewart Title’s completed dispute and a arose between Sterling sented to that he would obtain title them. Smith ordered Baldwin to leave the to the lots. single These acts constitute a premises and sued Baldwin Smith for fore Sterling. indivisible harm to Stewart Ti- general closure of his lien. Smith filed a gave tle’s conduct rise to the same dam- denial and counterclaimed under ages Sterling sought from the other DTPA. The trial court rendered a take- defendants, i.e., the value of the three wa- nothing judgment for Baldwin but awarded ter district lots. There is no rational basis damages (in Smith in actual addition distinguish damages between the Ster- fees) attorney’s under the DTPA. Be- ling suffered from Stewart Title’s failure cause residing Smith was in the home pay policy on the damages and the suf- throughout dispute, requested Baldwin alleged fered from the misrepresentations damage award. The tortfeasors, of all of the defendants. All trial court refused to allow a credit Sterling alleged whom himself joint were court held that the reasonable rental value tortfeasors, damage. caused the same We should be used to offset the award of actu- therefore hold that is entitled al prior trebling. Smith is to receive a judgment, analogous credit on the be- not to this case because Smith cause Sterling directly otherwise would involved a credit receive a between the non- recovery. plaintiff defendant and the double money directly which was owed to the non- PRE-TREBLING OR POST- settling defendant. did Smith not involve TREBLING CREDIT an offset from an earlier settlement of a co-defendant offset due to the rental Given our decision that the one sat value benefit directly by received Smith. case, isfaction applies rule to this we must decide applied pre- whether the credit is Three pre-tre- cases have dealt with the post-trebling. argues Stewart Title that it bling/post-trebling credit issue in a DTPA prior is entitled to the applica credit context. See Reed v. Israel Nat’l Oil Co. trebling provision Ltd., 228, Article (Tex.App 681 S.W.2d 240 . —Hous consequences pre-trebling post- 9. The trebling in this case are as follows:

PRE-TREBLING $200,000 Damages Actual $400,000 Less: Settlement Credit < > NET DAMAGES-0- POST-TREBLING ($200,000) $600,000 Damages Actual 3x Less: Settlement Credit < > NET DAMAGES

9 provided by Insurance 1984, writ); damages ton Stendebach [1st Dist.] 21.21, 16.10 Code Article (Tex. 557, § 559 Campbell, v. 665 S.W.2d 1984, n.r.e.); App. Paso writ ref'd supporting post- rationale An additional — El Hosp. Truly, v. 611 S.W.2d Providence by analyzing found trebling credit is 127, 1980, (Tex.Civ.App. way. writ 136 rule another There one satisfaction — Waco dism’d). questions are to be addressed. Each these decisions concluded two any are actual first is whether there dam- trebling prior credit applying that ages, these actu- and the second whether injured plaintiff full award denies the plaintiff. damages by al recoverable DTPA, required legis by the frustrates $200,000. damages jury found actual punish lative intent to and deter such viola damages are estab- Merely because actual tions, discourages settlements. We necessarily does not lished being analogous to the view the cases as plaintiff may mean recover them. today agree case us before we provides for the tre- Insurance Code reasoning. their bling damages, of actual not for tre- Therefore, It is self-evident that the treble bling damages. of recoverable credit, 21.21, post-trebling punitive by allowing puni- provision of Article 16 is trebling giv- provision tive nature of the designed in nature and to deter violations application of en full effect and the pre- Insurance Under the Code. consistently applied. rule is satisfaction 21.21, ap 1985 of Article version holding Our credit for settlements plicable trebling to this was mandato alleged made other tortfeasors must merely ry upon based the determination of trebling applied after the of actual dam- Queen liability. Rainey-Mapes v. ages with the rule is consistent well-settled Inc., 907, (Tex. Charters, 915 in federal antitrust cases which involve tre- 1987, App. granted Antonio — San See, damages. e.g., v. ble Sciambra Gra moot); Co., Hope v. Ins. dism’d as Allstate 651, (5th ham 841 F.2d 657 News 634, (Tex.App. 635-36 — Fort Cir.1988),cert. sub nom. Sciambra denied 1986, n.r.e.). Worth writ ref'd Scienter 855, Services, 109 v. 488 U.S. ARA required trigger trebling was not (1988); 102 115 Hydro S.Ct. L.Ed.2d provision. clearly These factors establish Corp. Soc’y level v. American Mechani punitive provision; intent of the there- Cir.1980), (2d F.2d 130 Eng’rs, cal Inc. 635 fore, application prior credit tre- 456 grounds, U.S. other aff 'd bling legislative pur- would frustrate this (1982); 72 L.Ed.2d 102 S.Ct. pose. Additionally, pre-trebling F.2d Lysfford, 246 Flintkote Co. v. discourage will settlements. This court denied, (9th Cir.1957), 397-398 cert. promote public policy seeks to en- (1957); U.S. 78 S.Ct. L.Ed.2d By allowing a courages pre- settlements. also, Corp. Rogers, 834 Liquid see Air found, trebling credit after fault is a recal- Cir.1987), denied, 1297, 1310(7th F.2d cert. unjust- nonsettling citrant defendant would 3241, 106 109 S.Ct. L.Ed.2d U.S. ly reap a windfall the settlements (civil RICO). (1989) Thus, made defendants. THE CREDIT AMOUNT any credit settlements we hold alleged joint right regarding made tortfeasors Another issue post-trebling trebling Title to a applied must after the of actual Stewart be Leong Wright, argues v. 478 S.W.2d See In its brief Stewart if we defendants. post-tre 839, applied (Tex.Civ.App. to be hold that the credit is bling, [14th Dist.] 845 — Houston change election 1972, n.r.e.). then it wants to its findings are not ref'd Such writ pro provided receive the rata reduction Pal sought. required when the credit is Contractors, Perkins, estine Inc. v. 386 S.W.2d Giesecke, 516, Schering Corp. 589 S.W.2d 519 v. However, (Tex.1964). to 764 Stewart fails real 1979, n.r.e.). (Tex.Civ.App. ref'd writ — Eastland pro rata reduction cannot be ob ize that request finding. such Title did not nonsettling requests tained unless the defendant findings fixing jury 10 defendants,

the determination of the amount as numerous other in order credit. The one operates satisfaction rule to show what is allocable as a reason- prevent plaintiff recovering from prosecution able amount nonsettling against defendant, (emphasis tortfeasor if a settlement en suit this added). greater tered into before trial is than or equal to the amount awarded the trier objection This preserve was sufficient to Giesecke, In Schering Corp. fact. v. error. 516, 589 (Tex.Civ.App S.W.2d 519 . —East rule, general party As a seek 1979, n.r.e.), land Schering writ ref’d as ing attorney’s to recover fees carries the appeal serted on that the one rule See, proof. burden of e.g., Kimbrough v. entitled him pretrial to a credit for the Fox, 606, 631 (Tex.App. S.W.2d 609 - Fort settlement entered into between Giesecke 1982, writ); Corpus Worth no Christi Dev. and another defendant. The trial court Carlton, Corp. 521, (Tex. v. 644 S.W.2d $200,000judgment awarded a and refused 1982, App. Corpus writ); Christi no Ba - to allow pretrial credit from a settle- Autohaus, Holland, varian Inc. v. $265,000. ment of appel- Id. at 518. The S.W.2d (Tex.Civ.App. - Houston late court allowed credit of the full settle- 1978, writ). Although no courts [1st Dist.] non-settling ment amount and held that “a should consider several factors when tortfeasor is entitled to a credit for the awarding fees, attorney’s a short hand ver paid injured plaintiff amount in com- sion of these considerations is that the trial pensation injury....” of a claim for an Id. award those fees that are “rea agree at 519. We with the rationale used necessary” prosecution sonable and for the therefore, in Schering; Stewart Title is See, e.g., of the suit. Accept Green Tree $400,000.11 entitled to a credit of All cases ance, Pierce, v. Inc. 768 S.W.2d holding contrary opinion disap- to this 1989, writ); (Tex.App. Tyler no Flint & —

proved.12 Steel, Pipe Assoc. v. Intercontinental & (Tex.App . —Dal denied);

ATTORNEY’S FEES las writ Bursey, Rosas v. (Tex.App 410-11 Over . -Fort objection, Stewart Title’s 1986, writ); Worth Graves Sommer trial court attorney’s submitted an issue on feld, (Tex.Civ. 954-55 fees and the awarded attor reasonable n.r.e.). App. ref’d — Waco ney’s Sterling. fees to Stewart Title at permits 16 of 21.21 Article tempted object to the submission on the plaintiff to recover those fees that are ground Sterling segregate failed to “reasonable relation to the amount of attorney’s according fees to the amounts expended_” work expended prosecuting the suit each defendant. court of held In order to show the reason objection untimely that Stewart Title’s fees, necessity attorney’s ableness imprecise in that it did not attack the plaintiff required to show that the propriety of the issue submission. We dis suing fees were incurred the defen while agree. objected special Stewart Title sought charged dant with the fees on attorney’s issue number the issue on a claim which fees. allows such fees, by stating: plaintiff aWhen seeks to recover attor ney’s has been no breakdown allo- fees cases where there are multi

[TJhere defendants, ple cation to the—of the fees incurred in more of and one or defendant, settlements, connection with this as well defendants have made Corp., compensatory 11. See also Ratner v. Sioux Natural Gas ment and the satisfies both the (5th Cir.1983) (In allowing 719 F.2d 801 a credit punitive damages plaintiff). awarded to the of the full settlement amount in a case decided under the one satisfaction rule where the dam- e.g., Hospital Truly, v. 611 12. See Providence age punitive compensatory award included 1980, (Tex.Civ.App. S.W.2d 127 dism’d). writ — Waco damages, goals pun- the court stated that the ishment and deterrence are served settle- if the

H policy the insurance which owed under segregate $320 must fees plaintiff suit, plus penal- of this formed the basis remaining defendants from owed prop- special issue ty and interest. the re so that defendants consideration to erly jurors’ limited the charged are not fees maining defendants the collection of the attorney fees for they responsible. for which are policy, the insurance how- claim under Corp., Component 722 v. Constr. Wood to ever, submitted all evidence 439, (Tex.App. Worth 444-45 S.W.2d — Fort attorneys’ servic- jury had to do with 1986, writ); no Verette v. Travelers Indem. pertaining to the preparing es in the case 562, Co., (Tex.App. S.W.2d 568 645 - San action, fraud deceit cause of alleged n.r.e.); 1982, Antonio writ ref’d Stone v. the insur- upon and not the claim under 55, Lawyers Corp., S.W.2d Title Ins. 537 therefore conclude policy. ance We 1976), (Tex.Civ.App. Corpus 63-64 Christi — jury support no to there is evidence part grounds, rev’d in on other 554 finding attorney fees]. [of (Tex.1977). S.W.2d 183 judgments awarding attorney ... refuses, objection, party If a over is severed are reversed. claim fees segregating attorney’s to offer evidence for and remanded to trial among parties, fees various claims or attorney fees hearing to determine segrega appellate court determines that for which are recoverable services ren- agree required, the cases do not accrued on ac- dered to collect benefits on whether should be rendered policy. count of insurance all, awarding attorney’s no fees v. Motorists See also Marcotte American whether the case should be remanded for 378, Cir.1983) Co., (5th 381 Ins. 709 F.2d more evidence on the issue. The rationale (followsFinch, granting hearing to deter is total attor rendition that evidence on recoverable); mine fees Mod were segregation no ney’s fees without evi Indep. v. East School Mfg. ine Co. North fees, segregated attorney’s dence of 833, Dist., (Tex.Civ.App.— S.W.2d 845 503 Wood, consequently required. rendition 1973, n.r.e.) (follows ref’d Beaumont writ (failure segregate at 444 S.W.2d Finch, stating upon party remand the fees,” [attorney] re “fatal segregates present evidence that at should Verette, quiring judgment); rendition of fees). contrary All cases to the torney’s (affirmed 645 S.W.2d at 568 trial court’s disapproved.13 attorney’s refusal to submit fees to to this recognized exception A fees); segregating absence evidence duty segregate arises when the attor Nat’l v. American Bank & Trust Co. First ney’s rendered are fees connection Trust, Mortgage Wisconsin 577 S.W.2d arising of the same transaction claims out (Tex.Civ.App. - Beaumont “prosecu and are so interrelated their n.r.e.) (“[u]ntil [plain writ ref’d and unless proof or denial of tion or defense entails fees, it segregated attorney’s its of tiff] essentially the facts.” Flint & As same supporting fered no evidence an allowance Steel, Inc., Pipe soc. Intercontinental & v. thereof.”). (Tex.App. 624-25 — Dallas court, however, held that an This has denied). Therefore, when the writ erroneously attorney’s award of fees based in the suit are causes of action involved fees re upon unsegregated evidence of of facts or dependent upon the same set Security quires a remand. International thus are “interwined circumstances and Finch, Ins. Co. 496 S.W.2d inseparable,” party point being Life (Tex.1973). states: 546-547 Finch suing attorney’s fees recover the covering all claims. Gill During parties stipulated entire amount trial King, v. Chair the insured was entitled to recover Sav. Ass’n See, & Trust v. n.r.e.); e.g., Component Corp., Nat'l Bank Constr. American Wood v. ref'd Trust, Mortgage S.W.2d 312 First Wisconsin (Tex.App. Worth — Fort writ); (Tex.Civ.App. writ ref'd Travelers Indem. Verette v. — Beaumont n.r.e.). (Tex.App. S.W.2d 562 Antonio — San Sterling’s 680 (Tex.App. prejudgment inter- [14th Dist.] — Houston 1989), (Tex.1990) est modified, 797 S.W.2d 31 and for further consideration of the (remanded attorney’s trial court to the for reexami fees issue consistent with this award). opinion. attorney’s Following nation of fee record, a review of the we conclude that by DOGGETT, J., Dissenting Opinion attorney's capable segrega fees of joined GAMMAGE, by MAUZY and JJ. expert Sterling’s tion. that some testified of the “primarily fees incurred were relat Justice, DOGGETT, dissenting. ed” to one rather defendant than to both growing The court’s fear that victims of “large majority” and that a of the fees injustice get justice much will too causes it were incurred a result of “fighting” as wrongdoers. confer a windfall to To- Equitable. Butler & Binion and day’s opinion only unjustly enriches unsegregated Evidence attorney’s of law, provides who violate the but also

fees is more than a scintilla of evidence of them litigation with an incentive to make fees, segregated attorney’s i.e. what a rea prolonged possible. as and difficult To attorney’s sonable fee would be for the accomplish result, unfortunate this entire segregated case indicates what the rejects widely accepted both the ma- amounts should determination of be. jority holding rule and its landmark own attorney’s question reasonable fees is a Duncan v. Cessna Aircraft Nielson, the trier of fact. Gonzalez v. (Tex.1984). S.W.2d 414 102 (Tex.App. Corpus - Despite finding that jury knowingly it denied). Christi Therefore a re violated Code Insurance article 21.21 attorney’s mand of the fee issue to the trial through practices unfair settlement and im- court for appropri further consideration is proper practices, trade Stewart Title is to- ate. $400,000 day permitted payment to avoid it owes. that This rather

SUMMARY litigiousness conveys handsome reward for We hold that Bradshaw one satisfac- message permissiveness to those who applicable tion rule is to cases not covered disregard you long our wait laws—if causation scheme and enough enough fight you get hard can settlements credit for made thirty-three off for cents on the dollar of alleged joint ap- tortfeasors must be you the amount a determines owe. plied trebling of damages. after the actual Visiting graveyard abandoned le- application the one satisfaction rule gal precedents, today mystically the court case facts of this results in the corpse Baylor revives the of Bradshaw v. nonsettling ability defendant’s to obtain a University, 84 S.W.2d 703 126 Tex. plaintiffs credit due to the settlement with (Tex.1935), and the one rule it Therefore, the co-defendants. Stewart Ti- pronounced previously embodied. We had $400,000 post-trebling tle is entitled ato determining Bradshaw dead “[t]he resulting judgment reasoning behind the rule no plus prejudgment Sterling. interest longer applies.” at prejudgment Since the awarded trial court concluding “to the extent it $600,000judgment, interest on a this cause opinion, conflicts with this we overrule entry is remanded to trial court for University.” Baylor Bradshaw v. Id. opinion. this consistent with yet has 432. Now this court awakened principle another to roam the objec- We also hold that Stewart Title’s dead tort land, preserve terrorizing As in Night tion was error re- victims. sufficient Dead, unthinking garding segregation attorney’s Living zombie fees living. attorney’s capable prey fees are is raised to on the When this and that the enough of these mon- segregation. judg- thus reverse the court has resurrected We sters, of tort landscape law will be ment of the court remand indeed, the victims beware. cause to court to recalculate bleak and let the trial

13 clear, direct, controlling recovery tradicts our and The one rule of Bradshaw dead, very premise underlying I prefer rejection and because to let dead peace, rest in I dissent. recovery any one rule for case. To reading day’s contorted further conflicts Duncan, that Cypress aware Creek interpretation repeated of Duncan Muller, v. 640 S.W.2d 860 Utility Serv. Co. by other courts. In addition to the court of (Tex.1982), question of “how reserved the here, 242, 248, 772 appeals decision recovery apply rule does the one Bradshaw Bros. see Mobil Chemical Co. v. Blount [pro- 2212a in not controlled Art. cases 1175, (5th Cir.1987) Corp., 809 F.2d 1180 negligence viding fault in (“We rule can doubt ‘one satisfaction’ Duncan, 430, cases]?”, 665 S.W.2d at we any the rule of in con withstand Duncan answer, thereby proceeded provide an to contract.”); text, Drilling tort or Merit Co. resolving very presented today: issue 87, Honish, (Tex.App.— 715 S.W.2d 89 multiple hold in defendant cases We 1986, n.r.e.) Corpus Christi ref’d grounds recovery in other than (Bradshaw’s rule recovery survived established, negligence are the non-set- already to the extent it was Duncan tling liability plain- and the defendants’ 2212a). in former article embodied recovery tiffs shall be reduced percent assigned share of causation to attempt justify disregarding In an to settling tortfeasor the trier writing the court offers our fact. Wise, 449 Ojeda de Toca v. (Tex.1988), which never mentions the one writing 665 429.1 was un- S.W.2d at This particularly rule.2 That case equivocal spoke broadly: and parties inapplicable, since the raised never term “tortfeasor” includes those credit, the issue of a and since briefed products whose is based on strict pend- not pretrial settlement occurred but liability, warranty, negli- breach of and ing appeal to this court.3 gence.

665 holding S.W.2d at 430. Both the and indivisibility in the ev- old belief reasoning certainly apply to Duncan a ery injury produced number tortious any intentional, tort, knowing or and wilful doctrines, including the con- harsh tort, particularly any statutory such satisfaction, also com- cept of one but practice Stewart Title’s unfair settlement contribution, non-apportion- plete bar on improper and practice. trade tortfeasors, damages among ment of and to contributory negligence as a total bar a thoughtful thorough noted in As recovery. Like victim’s commentary complex subject, on this Dun- rule, these doctrines have been discredited can overruled Bradshaw “without reserva- Camden, rejected. McMains, Dobson v. 705 tion.” Russell H. Contribution (5th 759, Cir.1983), on F.2d 767 vacated Indemnity Problems Texas Multi- F.2d grounds, Litigation, rehearing Party Mary’s 17 St. L.J. (1984) (en banc); (hereinafter see also W. (1986) McMains). Treating Dobbs, Keeton, E. writing Page Dan B. Robert our recent as a comment limited to Owen, products liability litigation, page con- Keeton & David G. Prosser see stage proceedings. upon negli- 1. sider the issue at that The exclusion actions based gence possibility under former results from their inclusion t Since Duncan does . foreclose 2212a, Leg., Act of 63rd article R.S., March receiving percentage relative to com- credit (codi- ch. 1973 Tex.Gen.Laws fault, § parative properly a credit Wise noted that fied at Tex.Civ.Prac. & Rem.Code 33.001-33.- might appropriate, not dollar-for-dol- 012) (comparative negligence contribution in apply. lar credit would fault). according percentage cases can, Dun- 429. place took after settlement 3.Because Wise pending appeal, the case was further Although trial while the defen- Wise does mention that granting request dismissal as based on a this court in dant on remand parties, sought only preserve pre-existing parties settlement with third 748 S.W.2d at proper or it did not hold that such a credit was rights on remand. granted, simply would be declined to con- (W. Page determining ence for a credit Keeton on the Law Torts relative Keeton, ed., 1984)(hereinafter fault.5 5th ed. Pros- Keeton) (discussing the historical ser & Where, here, comparative no causa perspective divisibility injury). on the of submitted, question the court of right is correct that “there is no the advent of the centu With twentieth plaintiff credit for settlement between and ry, increasingly began to realize courts other defendants.” 772 S.W.2d at 248. indivisible, injury that even when an object Because Stewart Title did not can, should, liability apportioned. be comparative failure to submit fault nor re (Tex. Trammell, Robertson v. 83 258 S.W. issue, quest any right such an it waived ref’d) (release given Civ.App. 1904, writ — seek a credit. See First Title Co. Waco of partial satisfaction does not release oth Garrett, 254, (Tex. v. 802 261-62 tortfeasors); er v. Klingen McMillen 1990, writ). App. no — Waco (Tex.1971) smith, 193, 195 where mandated Even otherwise (“The legal unity basis for the of release rule, recovery exception has been legal challenged by every has been scholar among made to bar contribution intention- it.”). who has examined As Prosser and al, outrageous wilful or otherwise tort- conclude, principal compara Keeton “the of feasors. 336-39. See Prosser & Keeton at apportionment damages tive fault of is ver payment by Contribution is the one tort- itably sweeping the Prosser land....” & proportional damages feasor of its of share injuries may Keeton at 479. While not all directly joint against to another tortfeasor divisible, generally divisible. Id. fault Black n whom a is rendered. 470-71. (6th 1990). Dictionary 328 ed. Law recognized In Duncan we that the one majority well established rule is that contri- concept longer satisfaction is no viable be- among knowing tortfeasors is not bution comparative cause causation “allows alloca- (Second) of allowed. See Restatement parties, tion of between even 886(A)(3) (1977); j Torts cmt. Huddle & injury when the itself is indivisible.” 665 534, MacLean, 640 F.2d ston v. Herman & headcounting” “crude S.W.2d at (5th Cir.1981). In 557 accord with view approach ap- of the one rule was statutory prohibition is the contri propriately replaced “a more refined bution cases of both intentional tort percent liability.” allocation of Id. at 430.4 involving Decep violation Since credit based on the entire amount (“DTPA”), Trade Act Tex. tive Practices fault, paid by settling party regardless of seq., 17.41 et or of the Bus. & Com.Code§§ credit,” ignores Code, or a “dollar-for-dollar art. 21.21. Insurance Tex.Ins.Code fault, concept 33.002(a), very comparative of it has Tex.Civ.Prac. & Rem.Code § (b)(2) (3). rejected by jurisdictions ap across the is similar to been & Contribution country. Today away plication has moved rule insofar as Texas prefer- in the amount a majority from the well established both result a diminution 1989) extensively following 4. This is true for both intentional (quoting from and uninten- Duncan); Uniroyal tional misconduct. While the court asserts that Vannoy Tire 111 Ida v. 650, 536, 648, (1985) "there is no fault allocation for (expressly P.2d 658 ho 726 torts,” 6, page percent in fact the intentional see rule); adopting the Duncan Charles v. Giant actually tortfeasor caused each Markets, (1987) Eagle A.2d 1 513 Pa. 522 can be allocated. Duncan); City County (citing Kussman v. Denver, (Colo.1985); Cartel 706 P.2d 779-80 Trenkner, Annotation, 5. See Thomas R. Modem Jersey, Corp. Capital 674, v. Fireco New 410 A.2d Negligence Development Comparative Doc- (N.J.1980); Drilling Leger v. Well Con 685 Negligence Having Applicability trine Actions (5th Cir.1979); trol, Inc., 592 F.2d 1249 (noting ap- Generally, 78 A.L.R.3d 354-62 Brodhurst, (3d F.2d 468-69 Gomes v. 394 proximately twenty-nine states with some form Camden, also, Cir.1967); 705 F.2d see Dobson comparative negligence and reduction in (5th Cir.1983) (adopting percent 764-70 credit relative to fault and another six with cases), rights in section civil credit rule system comparative regard- pure reduction (1984) causation). See, rehearing, F.2d percentage e.g., vacated on (vacated less of (Iowa liability). joint Solberg, N.W.2d 77-78 because court found Thomas v. share of causation. Allowing proportionate for its pay. tortfeasor must particular holding, limiting prior our we Rather than liability on the basis to avoid Stewart Title law the common broadly “agree[d] under the one party settlement of a third permits settle in Duncan adopted result scheme the same recovery rule thus achieves liability.” only proportionate share this statute ment of very contribution which as the regression apparent The court’s forbids. Id. injuries tort are indivisible to the view that policy practical and additional Several apportioned per- may not be and that fault re- compelled the nationwide concerns have contrary legislative to this a result mits approach and jection of the one satisfaction directive. a comparative causation and adoption of strong similarity, contribution Despite its necessary recovery. One is the percentage recovery rule re- from the one differs of a settle- between the value distinction pay the entire quiring the tortfeasor damages awarded and the amount ment payment from the judgment and then seek today assumes that a by jury. a The court tortfeasor, simply rather than allow- joint $400,000 parties third settlement with of the tort- ing a reduction of the amount $400,000reduction in the result in a should Al- injured party. feasor’s debt $200,000 page award. See jury’s trebled though approve not a one recov- it should Duncan, however: explained As we non-settling tort- ery rule that allows represent a contractu- dollars Settlement statutory the current feasors to circumvent settling of the value al estimate contribution, justi- the court cannot ban may more or liability and be tortfeasor’s fy its claim that the former contribution proportionate share of the than the less controlling. page 6. statute6 is See Since in- damages. The settlement plaintiff’s application recovery of the one rule does damages, also the only cludes directly not come within the definition of risk, expense, and avoiding value contribution, no statute could contribution accompany public exposure that adverse directly control this case. going to trial. Nothing Corp. in Beech v. Jin Aircraft that some or at 431. It be kins, (Tex.1987), a case in 739 S.W.2d 19 $400,000 by the tendered even most of the facts, volving significantly different man risk, and settling parties paid was to avoid application dates of the former contribution verdict reducing the action, pure statute. In this contribution dam- Sterling of some of the amount denies plaintiff, one defen after with the legitimately is enti- ages to which he award sought dant contribution from a second tled. defendant; by either attempt no was made rule, recovery reviving the one a credit defendant to obtain Furthermore, erroneously assumes that law’s complete accord court plaintiff. compensate victims only purpose is to we held in with Jinkins deterring ignores objective again as defendant could not obtain contribution Publish wrongdoers. Caller-Times settling party right to common “a has Communications, Triad only Inc. v. ing because he can settle law contribution (Tex.1992) (Dog 34083*19 1992 WL proportionate liability....”, share of id. his J., dissenting) (noting that the court gett, determina and reaffirmed Duncan’s possibility of effectively pay has eliminated party obligated should tion that a contribution, percentage cred- pose as with repealed Act of 6. Tex.Rev.Civ.Stat. art. 16, 1985, 9(1), it, equitably Tex.Gen. the burden of the June ch. "is to distribute among wrong Laws 7218. those re- between or common underly- sponsible.” realized that ”[t]he Id. It today’s opinion with the 7. That is not concerned tong ing equities not subverted so any showing comparative absence of opportunity to nonsettling given parties are by Stewart Title is all the more remarkable (em- liability_" Id. litigate their author, Gonzalez, joined the since its Justice added). phasis J., (Ray, dissent in Jinkins. 739 S.W.2d dissenting). agreed pur- that the That dissent (D.C.Cir.1974); accord, predatory law énforcement in all antitrust Theobald actions). (N.J.1965). pricing Angelos, By Not is deterrence the 208 A.2d 129 refusing under article in multi-party basis treble settlement Code, 21.21 it an reap of the Insurance was can tortfeasor benefits of settle- explicit rejecting reason for Bradshaw’s among any parties. ment of the other Dobson, recovery rule in F.2d at provides example: it explained 765-66. That court that while knowingly In- found to have violated the the archaic one rule was con- Code, yet by avoiding surance settlement it avoiding unjust cerned enrich- itself found saved what plaintiff, ment to the the law should also be pay. it should This outcome cannot be holding concerned with the tortfeasor liable per- reconciled with our observation that damage for the full share of the it causes mitting non-settling profit tortfeasors to discourage in order to similar misconduct application from strict in the future. Id. at 769-70. rule is an “unfair result” which “should approved.” not be 665 S.W.2d at apparent attempt unjust In an to avoid added). (emphasis 431 wronged, enrichment for the the court has guaranteed unjust enrichment for the Allowing enjoy a tortfeasor to a windfall wrongdoers. responsible If one for 50% complete a in reward for recalcitrance is $50,000, injury an settles for and a second alleged preference conflict with this court’s party responsible for the other half of the Baking for settlements. Rainbo Co. injury present jury, chooses to its case to a (Tex.1990); 42 Stafford, v. 787 S.W.2d a determination that the total ac- Co., 765 Liberty Gee v. Mut. Fire Ins. tually possible. incurred were (Tex.1989); S.W.2d 396 Scurlock Oil non-settling The defendant should not be (Tex. Smithwick, 4 v. 724 S.W.2d Co. $25,000 in payment excused from of the 1986). Why multi-party a case resolve Although plaintiff damages it caused. awaiting party’s promptly when another $75,000, injustice, then there is no receives may produce a cred settlement substantial previously explained: has as this court Moreover, exercising it? a dollar-for-dollar [A]ny plaintiffs enrichment under approved today plain credit as “shieldfs] system comparative new causation is from the effect of bad settlements tiffs unjust, simple reason that no denying good them the while benefit The one is harmed. defendant 430; Duncan, 665 at settlements.” S.W.2d complain, agreed he cannot because also, Brodhurst, 394 F.2d 465 see Gomes v. pay. non-settling defendant has no (3d Cir.1967). right complain, he not a because was in vigor if did remain Even some party to and is not affected the settle- rule, recovery tired of the one bones ment. correctly. Ap- apply court has failed to it

Duncan, 665 S.W.2d at 431. necessarily depends on plication of the rule however, insepa- today’s opinion, injustice the determination that there was Under rable, single injury plaintiff of another kind does occur. As several suffered had. only recovery one be agreed: courts have for which Further, estab- the defendants must be rule, grounded in one-compensation Title, joint First lished to be tortfeasors. enrichment, unjust applied not to in Indeed, Jinkins, on 802 at 261-63. S.W.2d unjust enrich- way generate such a as to relies, concerned which the court was only litigating ment to the defendant.... involving joint such tortfeasors. with cases unjust enrichment ... It would be at S.W.2d give defendant who was even- pro a full tanto tually found liable ... conduct was a Because Stewart Title’s paid by the credit for the full amount that of the separate distinct act from others. defendants, employment of the inappropriate. entirely Dobson, v. rule is quoting 705 F.2d at Rose of es- met its burden 501 F.2d Stewart Title never Anesthesiologists, Associated recovery for an insurer’s viola- single produced there tablishing either that was and, separately, joint tortfeasor. tion of the Insurance Code injury or that it was 6-7; Id. causes of action DTPA. two different There were for its violation Chapman, involving misrepresentations, Oil Co. two different see also Shell title, insurance the other as to (Tex.1984) (allowing one as to recov- S.W.2d separate claim for coverage, as well as same defendant ery against dif- settlement. such unfair claims Where negligence and DTPA both same act under exist, rule ferent actions Wise, Ojeda de Toca v. theories). court of never be used. As the should only writing again once affirming appeals correctly observed contrary. In that cited to the by this court court, seller, “[njeither nor its trial parties appar- multiple there case were counsel, legal could have committed [the] 21.21 action ently separate article of the Insurance Code for which violations” the insurers.8 Title. Sterling against Stewart recovered applying an abandoned In addition to 242, 248. The settlement with it would not have rule to a case not, therefore, affect parties should rule fol used even when the been clearly statutory liability. lowed, incorrectly calculated the court has found that Stewart Title and Stewart Corp. v. Schering Relying the credit. damages in the amount alone caused Giesecke, (Tex.Civ.App.— response following ques- n.r.e.), pre-Dun- writ ref’d Eastland tion: case, can adopts the court a dollar-for- money you find from amount of do What previous pretrial a settle dollar credit for preponderance of the evidence consti- pages 9-10. Under ment. See Sterling’s actual dam- tutes W. Dawson Schering reasoning holding ages, any, produced by any if that were at overruled. 665 S.W.2d clearly have been deceptive practices, trade unconscionable 430; at 659. McMains cf. action, action or course of unfair claims practice, improper trade settlement have Any credit should dollar-for-dollar to have practice, any, by you if found $200,000 amount of limited to the been by been committed Stewart Title Guar- damages jury. compensatory found Company. anty Hospital Truly, In Providence added). Id. (emphasis at 247 Stewart Title (Tex.Civ.App. writ — Waco damages required pay should be dism’d), disapproves, the court now which solely responsible. for which it is paid settling defendants page see Indeed, finding recognizes $35,000, there this court the trial resulted damages distinct when it under were two bases in actual attorney’s trebling that “the fees are ca- post concludes the DTPA. The trial court’s pable segregation.” page 12. This upheld as consistent credit of was against necessarily means that the suit of the DTPA. purposes with the deterrent separate costs involved agreement did not Since the settlement against than that the other considerations part paid the amount was specify that truly If there were but one defendants. statutory damages compensation for the fees single injury, attorney’s act decep settling defendant’s arising from the segregated. could never be $35,000 was the entire practices, tive trade compensatory dam “actual considered explain why the Nor does the court ever reasoned 137. The court Id. ages.” Mayo v. John appeals’ reliance on court of com was for the settlement that because Mut. Ins. Hancock Life only, and the trebled (Tex.1986), pensatory misplaced. In that in the judgment of the was damage portion denying maternity single act of benefits dants, settle- concern a defendant’s SRS did not upon court is 8. The other case relied credit, resulting an elec- but rather Systems, ment with Baler Co. v. SRS American single act defen- for a (Tex.App. tion of remedies [1st Dist.] S.W.2d 243 — Houston denied). party to the suit. Though involving multiple dants still defen- exemplary damages, proper nature of applied only amount was towards the represented

portion of the which $15,000. compensatory damages, Under respects punitive approach, which trebling damages statutory for a nature of violation, entitled Stewart Title would be $200,000 compen-

only to a credit of the damages. is correct satory While the court after the tre- credit should occur no credit bling compensatory language, non-settling de- proper here since appor- request failed to fendant liability. and all To most members of the Bar public subject matter members writing truly arcane. How- today’s ever, this court ar- process involving process decision—a

rived at its precedent, a disregard for its own recent statute, majority in order to and the view ground litigation— rules of

change the This is not the should be of concern to all. principle that this court last dead tort movies, this eager to resuscitate. Like the sequels. opinion will have its Unlike movies, the court effects on our the havoc harm tort law will cause direct traditional ordinary Tex- of thousands of to the lives ans. GAMMAGE,JJ., join in

MAUZY dissent. JACKSON, Appellant,

Jimmy Texas, Appellee. STATE

No. 69612. Texas, Appeals of of Criminal Court En Banc. Sept. 20, 1991. Rehearing Denied Nov.

Case Details

Case Name: Stewart Title Guaranty Co. v. Sterling

Court Name: Texas Supreme Court

Date Published: Feb 12, 1992

Citation: 822 S.W.2d 1

Docket Number: C-8910

Court Abbreviation: Tex.