Stephen James UTTS, M.D., Petitioner, v. Dennie SHORT, individually and as executor of The Estate of Clifton Short, deceased, Norma L. Short, Patricia Ann Cain, and Sam Short, Respondents.
No. 99-0366.
Supreme Court of Texas.
Decided July 3, 2002.
Argued Sept. 19, 2001.
81 S.W.3d 822
The evidence cited by Apodaca and relied on by the court of appeals all suffers from the same essential defect: while the evidence may show that Excel should have employed other practices and that Apodaca‘s injuries were work related, none of it shows that had Excel employed those other practices, Apodaca would not have been injured. See Boys Clubs, 907 S.W.2d at 477. In other words, the evidence does not show that had Excel modified the cryovac worksite or job requirements, or had it conducted symptoms surveys, Apodaca would not have suffered his injuries or they would have been diagnosed sooner and reversed using other treatments.
The medical evidence suffers from the same infirmity. The doctors agreed that at least part of Apodaca‘s injuries, specifically his wrist injury, was work related. Two doctors testified that the motions demanded by Apodaca‘s work environment caused carpal tunnel syndrome to develop in Apodaca‘s wrist; another stated that he believed all of Apodaca‘s injuries were caused by his job. But no doctor linked those injuries to anything Excel did or failed to do. While the evidence supports the conclusion that at least some of Apodaca‘s injuries were work related, it fails to establish that Apodaca would not have been injured but for any negligent conduct by Excel. See Boys Clubs, 907 S.W.2d at 477. Thus, we agree with the dissenting justice in the court of appeals that whether Apodaca would have suffered CTD injuries in the absence of Excel‘s negligent acts or omissions “was left to the speculation of the jury.” 51 S.W.3d at 704. We therefore conclude that there is no evidence that Excel‘s negligence was the cause in fact of Apodaca‘s injuries.
Because Apodaca failed to present legally sufficient evidence that Excel‘s negligence proximately caused his injuries, we need not consider the other issues raised by Excel. Accordingly, we reverse and render judgment that Apodaca take nothing.
Michael W. Shore, Shore & Fineburg, Dallas, Steven E. Aldous, Donna J. Bowen, Slack & Davis, Austin, for Respondent.
Justice BAKER delivered the opinion of the Court in Parts I-IV, in which Chief Justice PHILLIPS, Justice ENOCH, Justice HANKINSON, Justice O‘NEILL, and Justice JEFFERSON join, and delivered a concurring opinion in Part V, in which Justice ENOCH, Justice HANKINSON, and Justice O‘NEILL join.
We grant Dr. Utts‘s motion for rehearing. We withdraw our opinion of Febru
I. INTRODUCTION
In this wrongful-death case, we must determine whether a nonsettling defendant is entitled to settlement credits under
II. BACKGROUND
Clifton Short died from blood loss and infection related to a perforated colon that occurred during polypectomy surgery. Dr. Stephen James Utts performed the initial surgery, and Dr. Jean-Pierre Forage performed the subsequent surgery to repair the colon. Dennie Short, individually and as executor of Clifton Short‘s estate, Norma Short, Patricia Ann Cain, and Sam Short, respondents in this case, and Dorothy Short Walker sued Utts, Forage, and HCA South Austin Medical Center for Clifton Short‘s alleged wrongful death.
Early in the litigation, all plaintiffs nonsuited with prejudice their claims against Dr. Forage, leaving Dr. Utts and HCA as defendants. Later, Dorothy Walker agreed to settle with HCA for $200,000. The settlement agreement between Walker and HCA states that HCA agreed to pay $50,000 to Dorothy Walker Short and $150,000 to Shore & Fineberg, L.L.P. The HCA settlement check in the record shows that HCA paid the entire $200,000 directly to Shore & Fineburg‘s trust account.
On the same day Walker signed the settlement agreement, she signed another document requesting that the Short family‘s counsel distribute—from “any monies belonging to me that he or his firm may have in his possession“—$10,000 to each Short family member remaining in the suit in his or her individual capacity. Soon thereafter, the individual Short family members and the Estate settled with HCA for $10 each. Then, Walker and the Short family nonsuited with prejudice their claims against HCA. About two months later, Walker nonsuited with prejudice her claim against Dr. Utts. Thus, Walker no longer participated in the suit, and only Dr. Utts and the other Short family members remained parties.
Before trial, Dr. Utts filed his written election for a $200,040 dollar-for-dollar settlement credit under
The parties tried the case to a jury. The jury found that Dr. Utts‘s and HCA‘s negligence proximately caused the Short family‘s damages. The jury found Dr. Utts twenty-five percent negligent and HCA seventy-five percent negligent. The jury awarded the Estate $100,000, Norma Short $300,000, and the three children
The Short family, in response, argued that Walker was not a “claimant” as Chapter 33 defines that term; therefore, Dr. Utts was not entitled to a credit for Walker‘s $200,000 settlement. They also argued that the factual claims and references to documents in Dr. Utts‘s response to their motion for judgment were never offered into evidence during trial, were not part of the record, and were inadmissible hearsay.
Dr. Utts replied that Walker was a “claimant” under Chapter 33. He also filed a motion to reopen the evidence in the event the plaintiffs argued that the evidence about the settlement details that Dr. Utts intended to rely on during the motion-for-judgment hearing was untimely. Finally, Dr. Utts requested that the trial court take judicial notice of various pleadings and motions filed in the case.
During the hearing on the motion for judgment, the trial court took judicial notice of several documents in the trial court‘s file, including the pleadings and Dr. Utts‘s election for a settlement credit. Then, Dr. Utts attempted to offer several documents into evidence, but the Short family members objected. These documents included (1) correspondence between plaintiffs’ counsel and HCA‘s counsel about how Walker‘s and the Short family members’ settlement proceeds would be distributed; (2) a copy of the HCA $200,000 check made payable to a trust account of the plaintiffs’ counsel; and (3) correspondence from Walker instructing the plaintiffs’ counsel to give each Short family member $10,000 from the monies belonging to Walker in the firm‘s trust account. The trial court allowed Dr. Utts to offer the documents and discuss their contents on the record, and it heard the Short family‘s objections. Additionally, during the motion for judgment hearing, the Short family‘s counsel stated that “[Walker] got $200,000, and then she also executed the document giving me permission to put $150,000 into my trust account for fees and expenses which she was jointly and severally liable for.” The trial court advised the parties that it would take all the matters at the hearing, including whether Dr. Utts‘s evidence was admissible, under advisement.
Following the hearing, the trial court notified the parties in a letter that it could not consider Dr. Utts‘s post-verdict evidence and that Dr. Utts waived his right to a $200,000 credit because he did not introduce the evidence about the settlement before submission to the jury. The trial court‘s letter also stated that Walker was not a “claimant” under Chapter 33, because the statute‘s definition of that term requires that the claimant be a party seeking recovery when the trial and verdict occurred. The trial court sent with the letter its final judgment, which reflected the amounts the jury awarded, less a $10 credit ($50 total) for the Estate‘s and each family member‘s settlement with HCA.
Dr. Utts then filed several formal bills of exception, identifying the evidence the trial court heard but refused to admit during the hearing on the motion for judgment. The trial court next signed an order that
Dr. Utts timely appealed and raised three issues: (1) whether he met his burden to prove a settlement by introducing evidence after a verdict was reached; (2) whether he was statutorily entitled to a settlement credit for the Walker settlement, or whether the multiple claimants could structure a settlement to avoid his right to a credit; and (3) whether a dollar-for-dollar credit for a lump-sum settlement with multiple claimants should be subtracted from the total damages the jury awards, rather than allocated based on each claimant‘s percentage of recovery from the total verdict. 987 S.W.2d at 629. In deciding Dr. Utts‘s second issue, the court of appeals concluded that although Walker was a “claimant” under Chapter 33, Dr. Utts was not automatically entitled to apply a credit for Walker‘s settlement against the other Short family members’ recoveries. The court of appeals held that one claimant‘s settlement cannot be applied against a different claimant‘s recovery under Chapter 33. 987 S.W.2d at 630. Because it resolved Dr. Utts‘s second issue, the court of appeals declined to consider Dr. Utts‘s first and third issues. 987 S.W.2d at 633.
Dr. Utts petitions this Court for review on three grounds. First, he argues that he is entitled to a credit for Walker‘s settlement with HCA based on how we construed section 33.012(b) of Chapter 33 in Drilex Sys., Inc. v. Flores, 1 S.W.3d 112 (Tex.1999). Second, Dr. Utts argues that the term “claimant” is not limited to those derivative plaintiffs remaining in the suit at the time the trial court submits the case to the jury. Third, Dr. Utts seeks a credit for Walker‘s settlement because, he contends, the settlement transaction was a “sham” intended to circumvent Chapter 33‘s proper operation and purposes.
III. SETTLEMENT CREDITS—WHEN THEY MAY APPLY TO NONSETTLING PLAINTIFFS
Today the Court expresses three positions about whether Drilex‘s Chapter 33 settlement-credit analysis applies here: (1) four members of the Court contend that we should overrule Drilex and thus it does not apply, 1 S.W.3d at 115 (Baker, J. concurring); (2) two members argue that Drilex is distinguishable and does not control because Walker was not a party seeking damages when the trial court submitted the case to the jury, 81 S.W.3d at 836 (Phillips, C.J., concurring); and (3) three members argue that Drilex‘s Chapter 33 analysis is correct and applies, 81 S.W.3d at 838 (Owen, J., dissenting). Accordingly, we do not apply Drilex to determine which settlement amounts Dr. Utts may credit against the Short family members’ recoveries.
However, a majority of the Court agrees that we must consider Dr. Utts’ contention that he is entitled to full credit for Walker‘s settlement with HCA because the transaction‘s structure allowed the Short family members to avoid the statutory settlement credit. The court of appeals rejected that argument. It noted that Dr. Utts did not attempt to present evidence in the trial court to support his allegation that the settlement was a “sham” until after the jury returned its verdict. 987 S.W.2d at 631. The court of appeals opined that Dr. Utts knew how the Walker settlement was distributed well before the trial court submitted the case to the jury; therefore, Dr. Utts could have offered evidence about the Walker settlement, even in the face of a motion in limine, by presenting the evidence to the trial court out
The court of appeals also observed that Dr. Utts took no countermeasures to protect himself from the potentially adverse consequences of Walker‘s settlement with HCA. The court of appeals noted that Dr. Utts did not attempt to keep Walker in the suit for a jury submission, he did not request the trial court to structure the jury submission in a way that would permit establishing a fraud or sham claim, and he did nothing to preserve a potential claim against HCA. 987 S.W.2d at 632.
Dr. Utts concedes that, before the case was submitted to the jury, he did not offer the evidence demonstrating the settlement‘s nature nor did he request a fact-finding that the settlement was a sham. Dr. Utts did request the trial court, after the verdict, to reopen the evidence to allow him to demonstrate the nature of the settlement. Although the trial court denied this request, Dr. Utts does not challenge that ruling here. Instead, he argues that it is not his burden to prove the transaction‘s nature. Dr. Utts asserts several reasons why placing the burden on him is improper: (1) he is a stranger to this transaction; (2) the Short family‘s attorney is an officer of the court and has a fiduciary responsibility to show the transaction‘s fairness; (3) one who claims a gift has the burden to prove that such is the fact; and (4) imposing the burden upon the nonsettling defendant to prove the settlement‘s nature not only unfairly penalizes the nonsettling defendant, but also allows settling parties to circumvent the one-satisfaction rule. Finally, Dr. Utts contends that even if he has the burden to prove how the settlement actually worked, the evidence in the record is enough to demonstrate the transaction‘s spuriousness.
A. APPLICABLE LAW
A defendant seeking a settlement credit has the burden to prove its right to such a credit. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex.1998). In Ellender, we determined that to obtain a dollar-for-dollar settlement credit, Chapter 33 requires only a written election before the case is submitted to the fact finder. 968 S.W.2d at 927 (citing
Once the nonsettling defendant demonstrates a right to a settlement credit, the burden shifts to the plaintiff to show that certain amounts should not be credited because of the settlement agreement‘s allocation. Ellender, 968 S.W.2d at 928. In Ellender, we noted that requiring a nonsettling defendant to prove the settlement agreement‘s allocation before receiving a settlement credit unfairly penalizes the nonsettling defendant. Moreover, we recognized that settling plaintiffs are in a better position than nonsettling defendants to ensure that the settlement awards are properly allocated. Ellender, 968 S.W.2d at 928; see also In re Texas Gen. Petroleum Corp., 52 F.3d 1330, 1340 (5th Cir. 1995); Hess Oil Virgin Islands Corp. v. UOP, Inc., 861 F.2d 1197, 1208 (10th Cir. 1988).
B. ANALYSIS
Dr. Utts’ allegation that the Walker-HCA settlement is a “sham” transaction is actually a claim that, to
Accordingly, we hold that, when a nonsettling defendant contends it is entitled to a credit because a nonsettling plaintiff benefited from another plaintiff‘s settlement proceeds, the nonsettling defendant must file a written election before the trial court submits the case to the jury and ensure the settlement amount is in the record, just as it would in any other Chapter 33 case. See
Moreover, during the motion for judgment hearing, and in his formal bills of exception, Dr. Utts offered the types of evidence a nonsettling defendant may rely on to establish that a nonsettling plaintiff benefited from another plaintiff‘s settlement. The settlement between Walker and HCA, the $200,000 check from HCA made payable to the trust account of the plaintiffs’ firm, Walker‘s letter instructing plaintiffs’ counsel to distribute a total of $40,000 from that trust account to the individual Short family members, and the settlement agreement between the Short family members and HCA for nominal amounts all demonstrate that the Short family members benefited from Walker‘s settlement with HCA. Further, plaintiffs’ counsel made statements before the trial court and the court of appeals suggesting that $150,000 from the Walker-HCA settlement went to the plaintiffs’ attorneys for fees and costs. Nothing in the record shows whether Walker actually received $50,000 as the settlement agreement states, or whether she only received $10,000. Therefore, we conclude that the record evidence and counsel‘s statements together raise a presumption that Dr. Utts may be entitled to a credit for $190,000 of the settlement amount. Consequently, we presume that each individual Short family member‘s recovery from Dr. Utts should be credited with the amount reflecting the benefit he or she received from the settlement proceeds. See Ellender, 968 S.W.2d at 927. The burden thus shifts to each Short family member to present evidence showing why the settlement credit should not apply. To avoid the credit, each member must demonstrate that he or she did not benefit from the Walker-HCA settlement agreement.
IV. DISPOSITION
Because we announce a new proposition of law today, we remand this case to the trial court to allow each Short family member an opportunity to present evidence to show that he or she did not receive any benefit from the Walker-HCA settlement. Then, if the trial court determines that the Short family members have not overcome the presumption that Dr. Utts is entitled to apply a settlement credit to each individual‘s recovery, the trial court should allow Dr. Utts settlement credits consistent with this opinion. Thus, we reverse the court of appeals’ judgment and remand the case to the trial court for proceedings consistent with this opinion.
V. SETTLEMENT CREDITS—DERIVATIVE PLAINTIFFS
For different reasons, a majority of the Court concludes that Drilex‘s Chapter 33 settlement-credit analysis does not control the settlement-credit issue in this case. I write here separately to explain why I believe that, although it remains the law, Drilex was wrongly decided and thus does not apply.
Dr. Utts argues that he is entitled to a credit for Walker‘s settlement with HCA based on how we interpreted section 33.012(b) in Drilex. Dr. Utts urges that
A. APPLICABLE LAW
Chapter 33 of the Code, Texas‘s proportionate-responsibility statute, governs how settlement credits apply in tort suits. See
“Claimant” means a party seeking recovery of damages pursuant to the provisions of Section 33.001, including a plaintiff, counterclaimant, cross-claimant, or third party plaintiff seeking recovery of damages.
In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, “claimant” includes both that other person and the party seeking recovery of damages pursuant to the provisions of Section 33.001.
Under Chapter 33, a claimant may not recover damages if his or her percentage of responsibility is greater than fifty percent.
If the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a credit equal to (1) the sum of the dollar amounts of all settlements....
In Drilex, we determined for the first time how sections 33.011(1) and 33.012(b) work together in a case involving derivative plaintiffs suing multiple defendants because of a family member‘s injury. Drilex, 1 S.W.3d at 112. Based on how we interpreted section 33.011(1), and the potential unfairness to nonsettling defendants who have no control over how plaintiffs may design settlements to avoid full settlement credits, we concluded that the entire family was one claimant for purposes of applying a settlement credit under section 33.012(b). Drilex, 1 S.W.3d at 122; see also General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 923 (Tex.1993); J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87, 96 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).
Under the one-satisfaction rule, a plaintiff is entitled to only one recovery for any damages suffered because of a particular injury. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000). The one-satisfaction rule provides that, when a claimant seeks recovery for the same injuries from multiple parties, the claimant is entitled to only one recovery on those injuries. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 5 (Tex.1991). In requiring that each claimant‘s jury award is reduced by any amount for which he or she settles, section 33.012 upholds this rule.
B. ANALYSIS
Like the court of appeals, I believe that the real issue presented here is whether section 33.012(b) permits a nonsettling defendant to apply one derivative plaintiff‘s settlement as a credit against a different derivative plaintiff‘s recovery. We answered that question yes in Drilex. See Drilex, 1 S.W.3d at 115-16. However, the facts and the arguments raised here should cause the Court to reexamine Drilex‘s Chapter 33 analysis. And, in doing so, I conclude that Drilex was wrongly decided.
In Drilex, we applied Chapter 33 to a suit in which an injured worker, Jorge Flores, and his family sought recovery for Flores’ injuries. The Flores family settled with one defendant. Drilex, 1 S.W.3d at 115. Specifically, the Flores children settled individually with the defendant for different amounts. The parents jointly accepted a lump sum to settle their claims. And Jorge, individually, received a settlement amount. Drilex, 1 S.W.3d at 120-21. The jury then awarded the Flores family members damages from another defendant. Drilex, 1 S.W.3d at 116. The issue was whether, under section 33.012(b), the Flores family members were individual “claimants” so that the trial court should have credited each individual‘s jury award with the amount for which he or she settled, or whether the Flores family members were collectively one claimant so that the trial court should have credited the aggregate jury award with all the amounts paid in the settlements. Drilex, 1 S.W.3d at 121. We concluded that the entire family was one claimant. Drilex, 1 S.W.3d at 122.
In Drilex, we professed to follow section 33.011(1)‘s plain language to conclude that “claimant” under section 33.012(b) means all family members suing for damages arising from another family member‘s injury or death. But, in doing so, we did not adhere to our statutory-construction rule that we must not construe statutes in a way that would lead to an absurd result. C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 322 n. 5 (Tex.1994). In section 33.011(1), the Legislature defined “claimant” in the first sentence as “a party seeking recovery of damages pursuant to the provisions of section 33.001 [the proportionate-responsibility statute].” However, instead of applying that definition in Drilex, we relied on section 33.011(1)‘s second sentence to define claimant. Drilex, 1 S.W.3d at 122. The second sentence explains that, when someone sues because he or she has suffered a loss caused by another person‘s injury or death, “claimant includes both that other person and the party seeking recovery of damages pursuant to the provisions of section 33.001.”
However, reading Chapter 33 as a whole and under well-established Texas law, it is evident that the Legislature did not intend for section 33.011(1)‘s second sentence to provide a separate definition of “claimant.” Rather, the second sentence ensures that, when a suit involves derivative claims, the derivative plaintiff cannot recover if the injured or deceased person‘s negligence is greater than fifty percent. See
We have recognized causes of action for certain family members who suffer personal damages arising from another family member‘s injury or death. See, e.g., Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990); Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978). But such derivative claims would not exist but for a family member‘s injury or death. Therefore, the injured or deceased person‘s contributory negligence, if more than fifty percent, precludes a derivative plaintiff‘s recovery. See Reagan, 804 S.W.2d at 467. On the other hand, if the injured or deceased person‘s contributory negligence is less than fifty percent, then the trial court must reduce the derivative claimant‘s jury award by the injured or deceased person‘s contributory negligence.
Furthermore, in Drilex, we not only misconstrued section 33.011(1), but we also read language into its second sentence. That is, we determined that under the second sentence “the Legislature defined claimant to include both the injured party and the party or parties seeking recovery of damages for injury to that person.” Drilex, 1 S.W.3d at 123 (emphasis added). Reading parties into section 33.011(1)‘s second sentence which only refers to person—singular nor plural—likewise led to our erroneous conclusion that a claimant in cases involving derivative claims includes the injured or deceased and the entire family. Drilex, 1 S.W.3d at 123.
Additionally, in Drilex, we misplaced our reliance on two cases to support our conclusion that “claimant” under section 33.012(b) includes all the derivative plaintiffs as one. First, we cited General Chemical Corp., 852 S.W.2d at 923. See Drilex, 1 S.W.3d at 122. But in General Chemical Corp., we held that Texas‘s Constitution prohibits a parent from recovering punitive damages for wrongful death. General Chem. Corp., 852 S.W.2d at 923. We noted that the court of appeals arrived at the contrary conclusion based on, among other things, the definition of claimant in section 41.001(1) of the Texas Civil Practice and Remedies Code chapter discussing exemplary damages. In doing so, we recognized that section 41.001(1)‘s definition includes both the deceased person and the party seeking exemplary damages. See General Chem. Corp., 852 S.W.2d at 923. However, contrary to what we said in Drilex, we did not, in General Chemical Corp., “construe” or “conclude” anything about section 41.001(1)‘s meaning. See Drilex, 1 S.W.3d at 122. Rather, we only acknowledged, and then rejected, the court of appeals’ reliance on that provision. General Chem. Corp., 852 S.W.2d at 923-24.
Second, in Drilex, we cited J.D. Abrams, 966 S.W.2d at 96, to support our conclusion that the entire Flores family comprised one claimant. See Drilex, 1 S.W.3d at 122. In J.D. Abrams, McIver and her daughter, Lori Crane, sued several defendants to recover damages for Crane‘s injuries aris
But the court in J.D. Abrams, and this Court in Drilex, ignored the fundamental flaw with defining “claimant” as multiple persons for purposes of applying settlement credits under section 33.012(b). That is, treating the entire family as one claimant—particularly when family members receive individual settlements in different amounts for their distinct losses—does not comport with Texas law which recognizes that derivative plaintiffs are asserting separate claims for their own losses caused by another person‘s injury or death. See Reagan, 804 S.W.2d at 467; Whittlesey, 572 S.W.2d at 668. No language in section 33.011 or section 33.012 suggests that the Legislature intended to group all derivative plaintiffs together as one claimant so that one derivative plaintiff‘s settlement wipes out another derivative plaintiffs’ claims.
Indeed, Drilex‘s results demonstrate why our Chapter 33 analysis was wrong and leads to results inconsistent with Texas law. See C & H Nationwide, Inc., 903 S.W.2d at 322 n. 5. Because we concluded that the entire Flores family was one claimant under section 33.012(b), we determined that the total damages the Flores family recovered had to be reduced by the total settlements the family received. Drilex, 1 S.W.3d at 122. After reducing the total jury award by Jorge Flores’ contributory negligence, and then subtracting the total settlements from the reduced jury award, we allocated the remaining amount among the family members according to their respective percentages of the total jury award. Drilex, 1 S.W.3d at 123. Accordingly, the children, Jorge, and Maria each individually received some, but not all, of the amounts the jury awarded them. Our Drilex Chapter 33 analysis, therefore, permitted the Flores children to recover a part of their jury awards contrary to the one-satisfaction rule. Because each child settled for more than what the jury awarded him or her, each child‘s settlement should have eliminated their individual jury awards. Moreover, because we included the Flores children when we reallocated the reduced jury award, our analysis resulted in Jorge and Maria recovering less than what they should have from their jury awards.
Had Drilex applied what I now believe is the correct Chapter 33 analysis, we would have affirmed the court of appeals’ calculations. See Drilex Sys., Inc. v. Flores, 961 S.W.2d 209, 214-15 (Tex.App.-San Antonio 1996), aff‘d as reformed and remanded, Drilex, 1 S.W.3d at 124. Specifically, the court of appeals concluded that the three Flores children‘s individual settlements eliminated their individual jury awards, because they each settled for more than they recovered after trial. Jorge and Maria settled for a lump sum, and Jorge also settled individually. Both settlements were for less than Jorge and Maria recovered individually from the jury. Consequently, Jorge‘s and Maria‘s individual jury awards were reduced by 10% for Jorge‘s contributory negligence. Then, the court of appeals determined
It is evident, then, that my analysis carries out Chapter 33‘s purposes so that a derivative plaintiff‘s recovery is either (1) barred by the injured or deceased party‘s contributory negligence if greater than fifty percent, or (2) reduced by the injured or deceased party‘s contributory negligence if less than fifty percent and by any settlement amounts the derivative plaintiff receives. See
The dissent contends that Drilex‘s holding that claimant means the entire family for settlement credit purposes is in harmony with our wrongful death statute. 81 S.W.3d at 843 (Owen, J., dissenting). But section 71.010 actually supports my position that “claimant” under section 33.012(b) refers only to each individual derivative plaintiff just as section 33.011(1)‘s first sentence provides. Section 71.010 provides that “[t]he jury may award damages in an amount proportionate to the injury resulting from the death” and that “[t]he damages awarded shall be divided, in shares as found by the jury in its verdict, among the individuals who are entitled to recover and who are alive at that time.”
Additionally, the dissent and Dr. Utts contend that overruling Drilex and J.D. Abrams is contrary to our recent statement that the stare decisis doctrine prevents changing a statutory interpretation even if that long-standing judicial interpretation was incorrect. See Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex.2000). And they urge that stare decisis exhorts us to “adhere to our precedents for reasons of efficiency, fairness and legitimacy.” See Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex.1995). The dissent and Dr. Utts also emphasize that the Legislature has met twice since J.D. Abrams issued and once since Drilex issued and has not amended the relevant Code provisions. They contend we should apply the legislative-acceptance doctrine in interpreting Chapter 33 and thus adhere to Drilex.
I agree that this Court should adhere to stare decisis and should not, without very good cause, change our previous statutory interpretation. However, this case is readily distinguishable from Grapevine, in which twenty years of precedent from this Court and courts of appeals constrained us to interpret a statute a particular way. See Grapevine, 35 S.W.3d at 5. Drilex is
The dissent‘s accusation that my Chapter 33 analysis “advocates complete disregard for the Legislature‘s will” is unfounded. See 81 S.W.3d at 838 (Owen, J., dissenting). Rather, I believe this Court strayed from the Legislature‘s intent when we first construed Chapter 33 in Drilex and read language into section 33.011(1) that the Legislature did not write. I do not disagree with the dissent‘s position that the Legislature, in enacting Chapter 33, had the authority to change common law. See 81 S.W.3d at 839 (Owen, J., dissenting). But when we construe a statute, we presume that the Legislature acted with knowledge of the common law and court decisions. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999). My Chapter 33 analysis adheres to this statutory-construction principle.
In sum, Drilex‘s troubling effect is that a settlement with any one derivative plaintiff can deprive all other possible derivative plaintiffs of their full recovery for their independent injuries when they did not receive any proceeds from the settlement. Accordingly, to apply Chapter 33 in a manner that is consistent with its purposes and our law, the Court should overrule Drilex to the extent that it concludes that “claimant,” for purposes of applying settlement credits under section 33.012(b), means all family members suing for damages arising from another family member‘s injury or death.
Chief Justice PHILLIPS filed a concurring opinion, in which Justice JEFFERSON joins.
Justice OWEN filed a dissenting opinion, in which Justice HECHT and Justice RODRIGUEZ join.
Chief Justice PHILLIPS, joined by Justice JEFFERSON, concurring.
Chapter 33 of the Texas Civil Practices and Remedies Code creates a scheme for apportioning tort liability among parties and for determining the effect of settlements on a claimant‘s right to recover tort damages. See
Dr. Utts contends that despite the non-suit, he should be allowed to off-set the damages awarded by the jury to Mrs. Walker‘s mother and siblings by the amount of her settlement because Mrs. Walker was a claimant when she settled with HCA. The statute, however, apparently assumes not only that a claimant is a party seeking damages but also that the claimant will recover damages, because
Justice OWEN criticizes this application of the statute, suggesting that it reads into the definition of “claimant” limitations the Legislature did not intend. She points out that the definitions both of “defendant” and “settling person” include a temporal limitation, “at the time of submission“, that is absent from the definition of “claimant.” See
Under this statute, the trier of fact is to determine as to each cause of action the percentage of responsibility of the following persons: (1) each claimant; (2) each defendant; (3) each settling person; and (4) each responsible third party who has been joined under section 33.004.
Justice OWEN and Justice BAKER disagree over whether we correctly applied this statute in Drilex Systems, Inc. v. Flores, 1 S.W.3d 112 (Tex.1999). Justice BAKER argues that we misconstrued the statute‘s definition of “claimant” in Drilex and that the decision should be overruled. Justice OWEN argues that Drilex correctly construes the statute, and she applies it to these facts. Under my view, the facts in this case are distinguishable from Drilex. Because the term “claimant” does not include a former plaintiff who has withdrawn from the lawsuit, we need not revisit Drilex here. Nor is it necessary to overrule Drilex to decide this case. I must concede, however, that any of the readings offered by the Court‘s opinions today are plausible. I hope the Legislature will consider the policy implications raised by Justice OWEN and Justice BAKER and clarify the intent of the law.
Finally, I consider Dr. Utts’ contention that Mrs. Walker‘s settlement was actually for the benefit of all claimants and that her position as the sole recipient of the settlement was merely a sham. I agree that the circumstances surrounding the distribution of the settlement proceeds in this case are sufficient to raise an issue regarding the legitimacy of the transaction. I join in Parts I-IV of Justice BAKER‘S opinion, and
Justice OWEN, joined by Justice HECHT and Justice RODRIGUEZ, dissenting.
On rehearing, my opinion of February 28, 2002 is withdrawn, and the following is substituted in its place.
This case has been pending before this Court for more than three years. After issuing opinions, granting rehearing (twice), withdrawing the original opinions, and issuing new ones, a majority of the Court is still unable to agree on what “the claimant” means in Chapter 33 of the Texas Civil Practices and Remedies Code when family members sue as derivative plaintiffs to recover for the injury or death of another family member and one or more settle and withdraw from the suit before trial. There are three different views presently held by MEMBERS of this Court (a fourth view, which was expressed in JUSTICE HANKINSON‘S concurring opinion in our prior array of decisions in this case, has been abandoned on rehearing),1 with no view garnering the support of a majority. In light of today‘s “resolution” of this case, we can only hope that the Legislature will act promptly to say with unmistakable clarity how settlement credits are to be applied in cases such as this.
There is at least a consensus of a majority of the Court on one point: Drilex Systems, Inc. v. Flores2 remains good law when family members settle but remain parties pursuing claims against a non-settling defendant. I agree with the concurring opinion of Chief Justice PHILLIPS to the extent that it concludes that Drilex remains authoritative and has not been overruled. I part company with that concurring opinion and JUSTICE BAKER‘S concurring opinion because neither correctly interprets what the Legislature meant when it used the term “the claimant” in Chapter 33 of the Texas Civil Practice and Remedies Code when one family member settles and withdraws from the case, but other family members continue to sue.
The concurring opinion of Chief Justice PHILLIPS would eliminate settlement credits for payments to a settling family member if he or she non-suited all claims before the case was submitted to the jury, even though the definition of “the claimant” in section 33.001 does not support this construction. Indeed, the Legislature explicitly included the words “at the time of submission” in other definitions in section 33.011, but not in the definition of “claimant.”
Justice BAKER‘S concurring opinion sweeps stare decisis aside in advocating that we overrule Drilex, decided less than three years ago. Justice BAKER‘S opinion also advocates complete disregard of the Legislature‘s will in several respects. That concurring opinion would only give effect to the Legislature‘s express definition of “the claimant” when those words are used in subsection 33.012(a), but not when they are used in subsection (b).3 Nor would Justice BAKER‘S concurring opinion give effect to the Legislature‘s directive in subsection 33.012(b)(1) that a non-settling defendant must be given credit for “the sum of the dollar amounts of all settlements” if it so elects.4 Non-settling defendants would receive only partial cred
I would give effect to the language chosen by the Legislature. In section 33.012, “the claimant” must be construed to include all those who claim damages for the injury or death of another person as well as that injured or deceased person. Section 33.012(b) requires that any recovery by “the claimant” must be reduced by a settlement with one or more family members, regardless of when they settle. The family members are, however, entitled to have the jury determine the amount of damages that should be apportioned to each, whether they have settled or not. I would therefore reverse the judgment of the court of appeals and remand this case for a new trial so that a jury can determine the amount of damages sustained by Dorothy Short Walker, her mother, siblings, and her father‘s estate, and the settlement dollars paid to Walker can be credited in the same manner as the Court did in Drilex.
I
Clifton Short died while under the care of Dr. James Utts at a hospital owned and operated by HCA Health Services of Texas, Inc. Short‘s estate, his widow, and the Shorts’ four adult children sued Utts, HCA, and another physician, Jean-Pierre Forage. All claims against Forage were later nonsuited. Before trial, one of the Shorts’ children, Dorothy Short Walker, settled with HCA for $200,000. The other five plaintiffs settled with HCA for ten dollars ($10.00) each. Walker non-suited her claims against Utts, but Clifton Short‘s estate and the other Short family members did not.
The settlement agreement between Walker and HCA provided that $50,000 of the $200,000 was to be paid to Walker and $150,000 was to be paid to the law firm that represented her and the other Short plaintiffs. The record reflects that the entire $200,000 was paid into the law firm‘s trust account, but there is correspondence in which Walker directed an attorney with that firm to distribute $10,000 each to her mother and her three siblings from “any monies belonging to me that he or his firm may have in his possession.” Walker‘s counsel stated on the record in the trial court that Walker executed a document permitting him “to put $150,000 into my trust account” to pay litigation fees and expenses for which Walker was jointly and severally liable. Thus, of the $200,000 settlement paid to Walker, 75% of it went to the Short family‘s attorneys, $40,000 went to Short family members other than Walker, and Walker kept $10,000.
The claims of the remaining Short plaintiffs against Utts proceeded to trial. Before the case was submitted to the jury, Utts requested a dollar-for-dollar settlement credit under section 33.012(b)(1) of the Texas Civil Practice and Remedies
The jury awarded the following damages:
Estate of Clifton Short $100,000
Norma Short $300,000
Dennie Short $12,000
Patricia Short Cain $12,000
Sam Short $12,000
The jury found that 25% of the negligence in treating Clifton Short was attributable to Utts and 75% was attributable to HCA. The trial court entered judgment against Utts in accordance with this verdict after allowing only a $50 settlement credit for the HCA settlement.
Dr. Utts appealed. The court of appeals affirmed the trial court‘s judgment in all respects, although it did not agree with the Short plaintiffs’ interpretation of Chapter 33.7 The court of appeals concluded that each wrongful death beneficiary was a separate “claimant” under section 33.012,8 and that “only the settling claimant‘s damages shall be reduced by the amount of that claimant‘s settlement.”9 The court of appeals therefore held that Utts was not entitled to any credit for the settlement paid to Dorothy Walker since Walker did not seek and did not recover damages from Utts.10
II
In construing the statutes at issue, we all agree that the statutes themselves are the starting point. I begin with section 33.012, which is where the Legislature directed that settlement credits must be given.11 Section 33.012 uses the words “the claimant” throughout. Section 33.012 first directs how the damages to be recovered by “the claimant” are to be reduced for “the claimant‘s” percentage of responsibility:
(a) If the claimant is not barred from recovery under Section 33.001, the court shall reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to the claimant‘s percentage of responsibility.12
Section 33.012 then directs how the damages to be recovered by “the claimant” are to be further reduced if “the claimant” has settled with one or more persons:
(b) If the claimant has settled with one or more persons, the court shall further reduce the amount of damages
to be recovered by the claimant with respect to a cause of action by a credit equal to one of the following, as elected in accordance with Section 33.014: (1) the sum of the dollar amounts of all settlements; or
(2) a dollar amount equal to the sum of the following percentages of damages found by the trier of fact:
(A) 5 percent of those damages up to $200,000;
(B) 10 percent of those damages from $200,001 to $400,000;
(C) 15 percent of those damages from $400,001 to $500,000; and
(D) 20 percent of those damages greater than $500,000.13
It is obvious that an injured person or the estate of a deceased person who seeks damages is “the claimant” within the meaning of section 33.012. But who is “the claimant” when family members of the injured person or of the decedent seek damages? Section 33.011(1) defines “Claimant“:
(1) “Claimant” means a party seeking recovery of damages pursuant to the provisions of Section 33.001, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff seeking recovery of damages. In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, “claimant” includes both that other person and the party seeking recovery of damages pursuant to the provisions of Section 33.001.14
Only certain family members can seek damages for the death of or injury to another person.15 Those are the spouse, children, and parents.16 Section 33.011(a) says that a family member who seeks damages, together with the person who is injured or dies, is included within the meaning of “claimant.” The question then arises, who is included within “claimant” if more than one family member brings a derivative claim.
Each person who sues for his or her own derivative injuries is claiming under and through the injured or deceased person.17 The definition of “claimant” dictates that each family member becomes connected with the injured or deceased person. Importantly, section 33.011 does not imply that the injured person or the deceased can be considered part of “the claimant” more than once. Based on the express definition of the “claimant,” each family member is joined with the injured or deceased person, and accordingly, each is in turn joined with other relatives for purposes of the definition of “claimant.” Chapter 33 treats the injured or deceased person as the hub when claims are made for his or her injury or death. There can be one or more spokes emanating from that hub. These spokes are the derivative claims of a spouse, child, or parent of the injured or deceased person. But each spoke is part of the whole. Each family member is part of “the claimant,” joined at the center because of his or her relationship to the injured or deceased person.
In Drilex, we cited with approval21 a case in which the facts were analogous to those in this case, J.D. Abrams, Inc. v. McIver.22 In McIver, Lori Crane was severely injured. Her mother, Joyce McIver, sued in her individual capacity and as the guardian of Crane‘s estate.23 Prior to trial, settlements were reached with several defendants, totaling $2,497,175.24 The jury subsequently awarded Crane $13,500,000, but no damage issue was submitted to the jury for her mother‘s individual claims.25 The trial court allowed a settlement credit of only $1,782,881.20, the aggregate amount of the settlements it had allocated to Crane.26 The court of appeals reversed, holding that the full amount of the settlements, including the amounts paid to McIver for her individual claims, must be applied to reduce the judgment in favor of Crane.27 The court of appeals concluded that under
Crane also contends that this result would make her give a credit for money she never received, money that by court order went to another person, McIver, for McIver‘s own losses. While that is true, we believe the legislature intended this result in order to protect defendants from plaintiffs who would manipulate settlements among those “seek(ing) recovery of damages for injury to another person.”29
In Drilex, we, too, rejected the argument that settlements paid to a family member should not be deducted from the recovery by other family members. In approving the analysis in J.D. Abrams v. McIver, a unanimous Court reiterated that “the claimant” as used in
As noted by the First Court of Appeals in McIver, a claimant‘s recovery is reduced only by the amount of settlement money already received by that claim
ant. McIver, 966 S.W.2d at 96-97. In this case, the entire family is treated as one claimant; therefore, all of the settlement money must be deducted from the family‘s recovery. If, however, there were another claimant (for example, a second injured employee), that claimant‘s settlements would not be deducted from the Flores family‘s recovery, and similarly, the Flores family‘s settlement would not affect the other claimant‘s recovery.30
In Drilex, we were fully apprised that the statute‘s plain language might lead to seeming inequities. We observed, “some plaintiffs may recover more than the amount awarded by the jury, and some plaintiffs’ awards will be reduced by settlement amounts paid to other plaintiffs.”31 We nevertheless recognized our obligation to apply the statute as written, not as we might have written it if we were the Legislature: “Although such results may seem harsh, they are mandated by the statutory language and are consistent with legislative intent.”32
Although we observed in Drilex that “harsh results” might occur under
The words “the claimant” as used in
This is in harmony with how the wrongful death statutes view derivative claims of
(a) The jury may award damages in an amount proportionate to the injury resulting from the death.
(b) The damages awarded shall be divided, in shares as found by the jury in its verdict, among the individuals who are entitled to recover and who are alive at that time.35
As we explained more than fifty years ago, each individual wrongful death beneficiary has the right to recover damages proportionate to his or her injury, but there is but one sum to be recovered and divided among them in a single action:
The statute gives the right of action to all the persons within the classes named to recover one sum. That sum must be apportioned among those persons according to their several rights, but under the statute there can be but one action.36
In determining “an amount proportionate to the injury resulting from the death,”37 a jury should be able to consider all the beneficiaries, even those who have settled, if dollar-for-dollar settlement credits have been claimed by a non-settling defendant. The fact that a settlement may preclude a beneficiary from actually receiving the amount awarded by the jury should not affect what the jury is to decide under the wrongful death statutes and under
The Short plaintiffs argue that in some cases, family members are hostile towards one another and a settling family member may not be inclined to cooperate with the remaining plaintiffs in proving the settling person‘s damages. While this may be true in some instances, that is not a basis for construing “the claimant” to mean something other than what the Legislature has said it means. Moreover, defendants face similar difficulties in cases in which they ask the jury to determine the percentage of responsibility of a “settling person” (i.e., a settling defendant) or a “responsible third party” under
In this case, the Short plaintiffs should be entitled to ask a jury to divide the amount it finds to be “proportionate to the injury resulting from the death”39 of Clifton Short into shares among each of the beneficiaries, including Dorothy Walker. From the total amount of damages awarded to the widow and children of Clifton Short, Utts should be entitled to a settlement credit for all settlement amounts, which in this case would be $200,050, because that is what
III
CHIEF JUSTICE PHILLIPS‘S concurring opinion confirms that Drilex was correctly decided. But CHIEF JUSTICE PHILLIPS‘S opinion concludes that when a party settles and withdraws from the case, that party can no longer be considered part of “the claimant” and no credit should be given for settlement dollars paid to that settling party.42 CHIEF JUSTICE PHILLIPS‘S opinion advocates that only those remaining as plaintiffs at the time the case is submitted to the jury can be “claimants.”
This construction of “claimant” effectively inserts the words “at the time of the submission of the case to the trier of fact” at the end of the definition of “claimant” in
(1) “Claimant” means a party seeking recovery of damages pursuant to the provisions of Section 33.001, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff seeking recovery of damages. In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, “claimant” includes both that other person and the party seeking recovery of damages pursuant to the provisions of Section 33.001 [at the time of the submission of the case to the trier of fact].43
But when the Legislature intended to impose such temporal limitations, it said so plainly, as it did in the subsection immediately following
(2) “Defendant” includes any party from whom a claimant seeks recovery of damages pursuant to the provisions of Section 33.001 at the time of the submission of the case to the trier of fact.44
If “claimant” meant only a person remaining as a party at the time the case is submitted to the jury, then it would have been entirely unnecessary to include the phrase “at the time of submission of the case to the trier of fact” in
The Legislature took pains to include the limitation “at the time of submission” in
(5) “Settling person” means a person who at the time of submission has paid or promised to pay money or anything of monetary value to a claimant at any time in consideration of potential liability pursuant to the provisions of Section 33.001 with respect to the personal injury, property damage, death, or other
harm for which recovery of damages is sought.45
The Legislature did not impose a similar limitation in defining “claimant.” It did not say that a claimant is only a person who remains a party at the time the case is submitted to the jury. When the Legislature includes a qualifier such as “at the time of the submission of the case to the trier of fact,” as it did in
IV
The Short family asks and four MEMBERS of this Court advocate in JUSTICE BAKER‘S concurring opinion that we overrule Drilex.47 A majority of the Court properly declines to do so for a number of reasons, not the least of which is that Drilex was correctly decided.
Our construction of
Each of us, including all four MEMBERS of the Court who today join in JUSTICE BAKER‘S concurring opinion, had an extended opportunity in Drilex to consider what we all agreed at the time was the “plain language” found in
But even were a majority of the Court to now have doubts about our prior construction of
We issued our opinion on rehearing in Drilex in August 1999, and there was no further rehearing of that decision. The Legislature thereafter met in the 2001 session and did not alter
Apparently, the JUSTICES joining JUSTICE BAKER‘S concurring opinion disagree that stare decisis is a compelling reason to abide by previous constructions of a statute. But less than two years ago, the same MEMBERS of the Court said in Grapevine Excavation, Inc. v. Maryland Lloyds,56 that “stare decisis demands the result we reach here. Stare decisis has its greatest force in statutory construction cases. Adhering to precedent fosters efficiency, fairness, and legitimacy. More practically, it results in predictability in the law, which allows people to rationally order their conduct and affairs.”57
JUSTICE BAKER‘S concurring opinion argues that the Court should not presume that the Legislature acquiesced in Drilex‘s interpretation of “the claimant” because rehearing of our original decision in this case, Utts, was pending when the Legislature adjourned. That argument ignores two important facts. The first is that Drilex was in full force and effect as precedent when the Legislature adjourned in 2001 and had been the law since August 1999. The second is that a majority of the Court in our original decisions in Utts reaffirmed Drilex,58 as we do today. The first Utts opinions were issued in January 2000, prior to the commencement of the 2001 legislative session. Although, as noted above, a majority of the Court could not agree on how
V
Undaunted by stare decisis and the analysis that we all agreed was correct in Drilex, JUSTICE BAKER‘S concurring opinion says that we should ignore the second sentence in the definition of “claimant” in construing
“Claimant” is defined in
(1) “Claimant” means a party seeking recovery of damages pursuant to the provisions of Section 33.001, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff seeking recovery of damages. In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, “claimant” includes both that other person and the party seeking recovery of damages pursuant to the provisions of Section 33.001.61
(a) If the claimant is not barred from recovery under Section 33.001, the court shall reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to the claimant‘s percentage of responsibility.
(b) If the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a credit equal to one of the following, as elected in accordance with Section 33.014:
(1) the sum of the dollar amounts of all settlements; or
(2) a dollar amount equal to the sum of the following percentages of damages found by the trier of fact:
(A) 5 percent of those damages up to $200,000;
(B) 10 percent of those damages from $200,001 to $400,000;
(C) 15 percent of those damages from $400,001 to $500,000; and
(D) 20 percent of those damages greater than $500,000.62
“Claimant” means the same thing in both subsections (a) and (b). The statutory definition of “claimant” cannot be parsed to give effect to the second sentence in subsection (a) but not subsection (b).
What justification does JUSTICE BAKER‘S concurring opinion offer for refusing to give effect to the second sentence in the definition of “claimant“? An “absurd result,” the opinion says. The result would be “absurd,” JUSTICE BAKER‘S concurring opinion concludes, because it would over
Assuming for the moment that Texas law might be modified by
But
JUSTICE BAKER‘S concurring opinion ignores another directive in
| Plaintiff: | Jury Award (less 10%): | Settlement Credit: | Unapplied Settlement Credit: | Judgment: |
|---|---|---|---|---|
| Jorge Flores | 1,800,000 | (671,491.90) | 0 | 1,128,508.10 |
| Maria Flores | 90,000 | (20,238.10)67 | 0 | 69,761.90 |
| Gina Flores | 13,500 | (29,374) | 15,874 | 0 |
| Jose Flores | 13,500 | (27,286) | 13,786 | 0 |
| Georgette Flores | 13,500 | (26,285) | 12,785 | 0 |
| $1,930,500 | ($774,675) | $42,445 | $1,198,270.0068 |
Had the court of appeals treated the family as a single claimant, the entire settlement amount of $774,675 would have been deducted from the jury‘s total award to the family (after that award had been reduced by 10%). That would have resulted in subtracting $774,675 from $1,930,500, for a judgment of $1,155,825. That is what this Court did in Drilex. Instead, the court of appeals’ methodology would have resulted in a judgment of $1,198,270, which meant that the non-settling defendant would not have gotten credit for $42,445. The court of appeals did not give the non-settling defendant any credit for the amount by which the settlement payments to the Flores children exceeded the jury awards to them.
The Legislature was free to make the call that when family members sue for derivative claims, a non-settling defendant is entitled to full credit for all settlements paid to them or the injured or deceased person through whom they claim. The Legislature could have decided to view each member as a separate claimant, but it did not.
VI
If
The first is that the Court gives little guidance on what evidence, if any, would rebut the presumption that the Court erects. In this case, counsel for the Shorts has been eager to explain to other lawyers across the state that in many cases, there is a “black sheep” in the family, and that the settlement device used in this case was conceived to skirt
So let‘s say you have a situation like we had where you have a black sheep of the family, and you have some people coming forward and they are going to offer you some money to settle the case [for $300,000].... I‘m going to give $235,000 of that to the black sheep, and then I‘m going to give $16,250 of that to each of the other plaintiffs, and then I‘m going to non-suit the black sheep entirely from the case, including against the remaining defendants, because if he got turned [sic] $35,000, that‘s going to wipe out any recovery he would get anyway because no jury is ever going to give this jerk $235,000 to begin with.
Now, before you do that, you kind of sit them down and you tell them—this needs to be well documented with your plaintiffs. You say, look, we are going to give you all this money. You are going to pay all the attorneys’ fees and costs out of it, and then you are going to turn around, if you will agree to do this, and you are going to give a gift to your momma of most of the money that you got.... And, then, guess what? The defendant gets no settlement credit.
* * *
That‘s how we did it in Austin [in the Utts v. Short case]. It‘s held up. It works. It‘s valid. And if anybody needs the documents and how to document something like that, call us up. We‘ll send them to you.72
If, on remand, Dr. Utts offers evidence of the foregoing statements of counsel, and the Short plaintiffs and Dorothy Walker counter with testimony that the payments were simply gifts, is the trial court nevertheless entitled to conclude that the transactions were in fact gifts and not a sham? Under the presumption that the Court has crafted, the answer should be “no.” The presumption is based on receiving a benefit. That presumption cannot be merely illusory and must be applied in a meaningful fashion.
A third concern is that the subterfuge may occur after a final judgment is entered and the trial court has lost plenary power. The defendant is then faced with a difficult burden in obtaining the settlement credit to which the Legislature has said it is entitled. Under these circumstances, a defendant must be given an opportunity to obtain relief in a separate proceeding.
Another question that is not considered in the Court‘s opinion is whether the attorney/client privilege applies if a non-settling defendant seeks evidence from plaintiffs’ counsel or the settling defendant‘s counsel. Obviously, the privilege should not apply. The attorneys for the plaintiffs in this case apparently acknowledged this by producing evidence of the instructions they received regarding how the settlement proceeds were to be distributed.
Finally, nothing in the Court‘s opinion forecloses Dr. Utts from determining on remand whether the non-settling Short family members or the estate paid the same percentage of their respective recoveries as attorney‘s fees and costs that Dorothy Walker Short did. She paid 75% for attorney‘s fees and costs when she settled before trial. If the other family members paid less than 75%, then they have received an additional benefit from the settlement with Dorothy Walker Short.
By failing to apply
* * * * *
I respectfully dissent.
Appendix A
Assume that Dorothy Walker Short‘s claim had been submitted to the jury, that the jury had awarded her the same amount as her siblings, and that Dr. Utts were solely liable. The principal amount of the judgment would then be calculated as follows:
| Estate of Clifton Short | $100,000 |
| Norma Short | 300,000 |
| Dennie Short | 12,000 |
| Patricia Short Cain | 12,000 |
| Sam Short | 12,000 |
| Dorothy Walker Short | 12,000 |
| Total | $448,000 |
| Less settlements | ($200,050) |
| Judgment amount | $247,950 |
Percentage calculations:
| Estate of Clifton Short | $100,000 / $436,000 = 22.9358% |
| Norma Short | $300,000 / $436,000 = 68.8073% |
| Dennie Short | $ 12,000 / $436,000 = 2.7523% |
| Patricia Short Cain | $ 12,000 / $436,000 = 2.7523% |
| Sam Short | $ 12,000 / $436,000 = 2.7523% |
| 100.0000% |
Allocation of judgment among non-settling plaintiffs:
| Estate of Clifton Short | 22.9358% of $247,950 = $ 56,869.31 |
| Norma Short | 68.8073% of $247,950 = 170,607.70 |
| Dennie Short | 2.7523% of $247,950 = 6,824.33 |
| Patricia Short Cain | 2.7523% of $247,950 = 6,824.33 |
| Sam Short | 2.7523% of $247,950 = 6,824.33 |
| $247,950.00 |
Gilbert G. DE HOYOS, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-01-00168-CR.
Court of Appeals of Texas,
San Antonio.
April 10, 2002.
Notes
- “However, reading Chapter 33 as a whole and under well-established Texas law, it is evident that the Legislature did not intend for section 33.011(1)‘s second sentence to provide a separate definition of ‘claimant.‘” 81 S.W.3d at 832.
- “This analysis gives all the language in sections 33.001, 33.011(1), and 33.012 meaning that comports with Texas law.” 81 S.W.3d at 833.
- “[T]reating the entire family as one claimant—particularly when family members receive individual settlements in different amounts for their distinct losses—does not comport with Texas law which recognizes that derivative plaintiffs are asserting separate claims for their own losses caused by another person‘s injury or death.” 81 S.W.3d at 834.
- ”Drilex‘s results demonstrate why our Chapter 33 analysis was wrong and leads to results inconsistent with Texas law.” 81 S.W.3d at 834.
- “Moreover, my construction does not belie the one-satisfaction rule or Texas law recognizing derivative plaintiffs are asserting separate claims for their own losses, tangible and intangible, caused by injury to another person.” 81 S.W.3d at 835.