Utts v. Short , 45 Tex. Sup. Ct. J. 1045 ( 2002 )

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 Tex. Civ. Peac. & Rem.Code §§ 33.001-33.016. The statute defines “claimant” as “a party seeking recovery of damages ...” Id. § 33.011. Because this language is written in the present tense, I believe that a plaintiff who settles or otherwise withdraws from a lawsuit is not a party seeking recovery of damages. Thus, Mrs. Walker ceased to be a claimant after she settled with HCA and non-suited her action against Dr. Utts.

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 settlement credits are to be deducted from the claimant’s award. Id. § 33.012(b). Specifically, if a claimant has settled with one or more persons, the settlements may be applied in one of two ways to “reduce the amount of damages to be recovered by the claimant with respect to a cause of action.” Id. A party who withdraws from a case and abandons her cause of action cannot recover damages and cannot receive an award that is capable of reduction by a settlement credit.

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 id. § 33.011(1), (2), (5). She further notes that the Legislature defined “settling person” to mean only a settling defendant, not a settling plaintiff, at the time of submission. See id. § 33.011(5). It may be significant that the Legislature did not include a settling plaintiff, or for that matter a former claimant, but perhaps not for the reasons Justice Owen offers.

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. Id. § 33.003. A defendant who settles remains in the lawsuit as a settling person whose percentage of responsibility must be submitted. The Legislature decided, probably for purposes of making the settlement credit election, that the transformation from defendant to settling person had to occur on or before the submission of the case. On the other hand, no election is necessary when a plaintiff has settled or otherwise abandoned his or her cause of action. Nor is there any reason to submit a plaintiff who has abandoned his or her cause of action, unless there is a claim that the former plaintiff contributed to cause another’s injury. In short, the temporal limitations in the definitions of “defendant” and “settling person” are required for purposes of the settlement credit election. They need not be read to transform the meaning of “claimant” from “a party seeking recovery of damages” to a “former party” who “had sought” the recovery of damages. See id. § 33.011.

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 Dri-lex 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 I concur in the Court’s judgment to remand the cause to the trial court for further proceedings on this question.