Texas Department of Public Safety v. Staples , 882 S.W.2d 431 ( 1994 )

HUTSON-DUNN, Justice,

dissenting.

I dissent.

In their first point of error, appellants contend that the judgment against them should be for 10 percent of Brannon’s damages rather than 100 percent. After viewing the comparative responsibility statutes as a whole, I disagree.

Tex.Civ.Prac. & Rem. Code Ann. § 33-001(a) (Vernon Supp.1994), states, “In an action to recover damages for negligence resulting in personal injury, ... a claimant may recover damages only if his percentage of responsibility is less than or equal to 50 percent.” Therefore, Brannon may recover because her percentage of responsibility was zero.

Tex.Civ.Prac. & Rem. Code Ann. § 33-012(a) (Vernon Supp.1994), states, “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 course of action by a percentage equal to the claimant’s percentage of responsibility.” Brannon may recover all of her damages because her percentage of responsibility was zero.

Tex.Civ.Prac. & Rem. Code Ann. § 33.003 (Vernon 1994), is entitled “Determination of Comparative Responsibility.” It states, “The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility with respect to: (1) each claimant; (2) each defendant; and (3) each settling person.”

Tex.Civ.Prac. & Rem. Code Ann. § 33.016 (Vernon Supp.1994), states:

(a) In this section, “contribution defendant” means any defendant, counterdefen-dant, or third-party defendant from whom any party seeks contribution with respect to any portion of damages for which that party may be liable, but from whom the claimant seeks no relief at the time of submission.

(b) Each liable defendant is entitled to contribution from each person who is nót a settling person and who is liable to the claimant for a percentage of responsibility but from whom the claimant seeks no relief at the time of submission. A party may assert this contribution right against any such person as a contribution defendant in the claimant’s action.

(c) The trier of fact shall determine as a separate issue or finding of fact the percentage of responsibility with respect to each contribution defendant and these findings shall be solely for purposes of this section and Section 33.015 and not as a part of the percentages of responsibility determined under Section 33.003. Only the percentage of responsibility of each defendant and contribution defendant shall be included in this determination.

Section (a) of this statute makes Staples a potential contribution defendant because Brannon did not seek relief from him at the time of submission. Under section (b), appellants had the right to a jury finding on the percentage of liability of Staples in this action if he had been joined as a contribution defendant. They could have named Staples as a contribution defendant and obtained a jury issue concerning contribution. This section appears to call for separate issues on contribution and comparative liability. Tex. Civ.PraC. & Rem. Code Ann. § 33.016(c) (Vernon Supp.1994).

Tex.Civ.Prac. & Rem. Code Ann. § 33.017 (Vernon 1986), which stated that all claims of contribution must be determined in the primary suit has been repealed. Since there is no longer a rule that a defendant must bring in all potentially liable defendants at the time of the plaintiffs original suit, appellants- may still have the right to bring a contribution suit against Staples. I do not address that issue here today.

Appellants argue that Tex.Civ.PRAC. & Rem. Code Ann. § 33.013(a) (Vernon Supp.1994), is clear and unambiguous and that we must follow it precisely. They cite C & H Nationwide v. Thompson, 37 Tex.Sup.Ct.J. 1059, 1063 n. 4 (June 22, 1994), stating that the supreme court construed this statute in accordance with its plain language. Nevertheless, when we look at the entire statute, including sections (b) and (c) it is apparent that this statute is only applicable when there is more than one defendant. The statute establishes the rules for liability for joint and several liability and the basis for contribution rights. Thompson is distinguishable because there was more than one defendant with whom liability could be found joint and several involved in the case. Id. at 149. In actuality in this case, there is only one defendant as Leake is an employee of the State putting them in privity with one another. I have been unable to find a case that applied this statute to a ease where there is only one defendant.

.1 would overrule point of error one.

Under point of error two, appellants argue that it was error for the trial court to assess all of the costs against them. As I would affirm the judgment awarding Brannon 100 percent of her damages from appellants, I would also hold that 100 percent of the costs should be assessed against appellants.

I would overrule point of error two.

I would affirm the judgment.

COHEN and O’CONNOR, JJ., also sitting.