Michelle Rodriguez AND Fort Worth Transportation Authority A/K/A the T McDonald Transit, Inc. McDonald Transit Associates, Inc. And LeShawn Vaughn v. Fort Worth Transportation Authority A/K/A the T McDonald Transit, Inc. McDonald Transit Associates, Inc. And Leshawn Vaughn AND Michelle Rodriguez and New Hampshire Insurance Co.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00340-CV
MICHELLE RODRIGUEZ APPELLANT
V.
FORT WORTH TRANSPORTATION APPELLEES
AUTHORITY; MCDONALD
TRANSIT, INC.; MCDONALD
TRANSIT ASSOCIATES, INC.; AND
LESHAWN VAUGHN
FORT WORTH TRANSPORTATION APPELLANTS
AUTHORITY A/K/A THE T;
MCDONALD TRANSIT, INC.;
MCDONALD TRANSIT
ASSOCIATES, INC.; AND
LESHAWN VAUGHN
V.
MICHELLE RODRIGUEZ AND NEW APPELLEES
HAMPSHIRE INSURANCE CO.
----------
FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 067-258065-12
----------
MEMORANDUM OPINION1
----------
The trial court granted partial summary judgment and the petition for
interpleader filed by Appellees and Cross-Appellants Fort Worth Transportation
Authority, also known as The T (FWTA), McDonald Transit, Inc. (MTI), McDonald
Transit Associates, Inc. (MTA), and LeShawn Vaughn (the transit defendants) in
the suit brought by Appellee Michelle Rodriguez, denied Rodriguez’s motion for
partial summary judgment, and denied all parties’ requests for attorney’s fees.
Both sides appealed.
In her appeal, Rodriguez argues that the trial court erred by granting partial
judgment for the transit defendants, by dismissing her claims against Vaughn,
and by denying her motion for partial summary judgment. In their appeal, the
transit defendants complain of the trial court’s denial of their requested attorney’s
fees.
Because we hold (1) that the trial court erred by granting the transit
defendants’ motion for partial summary judgment, dismissing Rodriguez’s claims,
and denying Rodriguez’s motion for summary judgment in part and (2) that the
trial court abused its discretion by granting the interpleader based on the transit
defendants’ arguments about the statutory cap on their liability, we reverse the
1
See Tex. R. App. P. 47.4.
2
trial court’s judgment in part. We affirm the trial court’s judgment as to its denial
of attorney’s fees to the transit defendants.
A. Background
This appeal is from two consolidated lawsuits arising out of the death of
Rodriguez’s mother, Judith Peterson. Peterson was struck and killed by a bus
driven by Vaughn. Vaughn is an employee of MTI. MTI and MTA are both
independent contractors of FWTA. Cross-Appellee New Hampshire Insurance
Company (Insurance) paid worker’s compensation death benefits to Rodriguez.
Rodriguez filed a wrongful death suit against the transit defendants in the
153rd District Court of Tarrant County. In a separate suit against only FWTA and
Vaughn, Insurance brought claims in subrogation for negligent entrustment and
respondeat superior.2 Insurance filed its suit in the 67th District Court of Tarrant
County.
In Insurance’s suit, MTI filed a petition in intervention and interpleader.
MTI stated that it had been sued by Rodriguez and that it would not deny its
2
See Tex. Lab. Code Ann. § 417.001 (West 2015) (providing subrogation
right for worker’s compensation insurance carriers); Franks v. Sematech, Inc.,
936 S.W.2d 959, 960 (Tex. 1997) (construing section 417.001 and its
predecessor, stating that “[t]here is but one cause of action for an employee’s
injuries, and it belongs to the employee,” that “[i]f the employee claims
compensation benefits, the insurance carrier is subrogated to the employee’s
rights against a third party who caused the injuries,” that “a carrier who asserts a
subrogation claim asserts a claim that belongs to the employee,” that “[t]he
carrier can assert its subrogation claim independently of the employee, . . . but
that claim is still derivative of the employee’s claim,” and that “[t]he carrier can
recover damages greater than the benefits it has paid but must remit the
difference to the employee”).
3
liability or “[p]laintiff’s injuries and damages as alleged in the lawsuits.” But MTI
further alleged that under section 101.023(b) of the Texas Tort Claims Act
(TTCA),3 the liability of FWTA, MTI, and their employees was capped at
$100,000 for all claims arising out of Peterson’s death and that Rodriguez and
Insurance had competing claims against that $100,000. MTI asserted that it was
tendering the limit of $100,000 into the registry of the court under rule of civil
procedure 43.4 It asked that it “and all current and future parties which are
entitled to the protections of the [TTCA], be dismissed from this cause, With
Prejudice” and that it recover its attorney’s fees and costs.
Insurance nonsuited all of its claims. On motions filed by the transit
defendants, Rodriguez’s case was transferred to the 67th District Court, and the
two suits were consolidated.5
The transit defendants filed a combined amended interpleader petition and
request for declaratory relief, which, unlike MTI’s original interpleader petition,
included all of the transit defendants. They gave the same legal basis for the
interpleader as MTI had in its previous interpleader petition—a liability cap of
3
Tex. Civ. Prac. & Rem. Code Ann. § 101.023 (West 2011).
4
Tex. R. Civ. P. 43.
5
Cf. Franks, 936 S.W.2d at 960–61 (stating that while a worker’s
compensation carrier may assert its subrogation claim independently of the
employee to whom worker’s compensation benefits have been paid, the
employee could intervene in the subrogation suit and recover any damages
exceeding the benefits the insurer had paid or was obligated to pay).
4
$100,000 shared among all four defendants. This amended interpleader petition
asserted that Rodriguez’s claims were defensible, but they would not defend
against them if the court accepted their interpleader to resolve all of Rodriguez’s
claims.
Both sides filed motions for partial summary judgment. In the transit
defendants’ motion, they reiterated their arguments that a single limit of $100,000
applied to Rodriguez’s wrongful death claim, and they asserted that Vaughn was
entitled to be dismissed under the TTCA as an employee of a governmental unit.
Rodriguez filed an amended petition for a declaratory judgment that FWTA,
MTI, and MTA each had a liability limit of $100,000 and that Vaughn’s liability was
not limited. In her response to the transit defendants’ summary judgment motion,
Rodriguez acknowledged that the liability limits of the TTCA applied, but she
disagreed that the TTCA capped the total from all defendants at a combined total of
$100,000. She argued that the interpleader was improper and must be denied.
In Rodriguez’s motion for partial summary judgment, she asserted that
there was no evidence that MTI had unconditionally tendered funds into the
registry of the court, that it was exposed to double liability, or that it was an
innocent, disinterested stakeholder. She asserted the same grounds, among
others, framed as traditional summary judgment grounds. And she asked for a
declaratory judgment that the liability limits in the TTCA applied separately to
FWTA, MTA, and MTI, and that Vaughn’s liability was not limited by the TTCA.
5
The trial court denied Rodriguez’s motion for partial summary judgment and
granted that of the transit defendants. In its order granting partial summary
judgment for the transit defendants, the trial court granted the requested
interpleader and dismissed all claims against the transit defendants. It found that
the claims against Vaughn should be dismissed based on section 101.106(b) of the
TTCA6 and that Rodriguez’s total amount of recovery against all of the defendants
cumulatively was no more than $100,000 under the TTCA.
After a hearing, the trial court denied the transit defendants’ request for
attorney’s fees. It then rendered a final judgment that further ordered that
Rodriguez recover $100,000 after the exhaustion of all appeals and dismissing
Rodriguez’s claims with prejudice.
B. Discussion
1. The grant of summary judgment for the transit defendants
In Rodriguez’s first issue, she asserts that the trial court erred by granting
the transit defendants’ motion for partial summary judgment. Under this issue,
she argues that the tort-liability limits applicable to multiple defendants apply
separately to each defendant and that Vaughn is not an employee of a
governmental unit under the TTCA.
6
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (West 2011).
6
Standard and Scope of Review
We review a summary judgment de novo.7 We take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor.8 The summary judgment will be
affirmed only if the record establishes that the movant has conclusively proved all
essential elements of the movant’s cause of action or defense as a matter of
law.9
When both parties move for summary judgment and the trial court grants
one motion and denies the other, the reviewing court should review both parties’
summary judgment evidence and determine all questions presented.10 The
reviewing court should render the judgment that the trial court should have
rendered.11
Applicable Statutes
The TTCA contains the following provisions relevant to this appeal:
7
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
8
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
9
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979).
10
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
11
See Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n, 300 S.W.3d 746, 753
(Tex. 2009); Mann Frankfort, 289 S.W.3d at 848.
7
 except for a municipality, “liability of a unit of local government under
[the TTCA] is limited to money damages in a maximum amount of
$100,000 for each person and $300,000 for each single occurrence for
bodily injury or death and $100,000 for each single occurrence for injury
to or destruction of property,”12
 “[t]he filing of a suit against any employee of a governmental unit
constitutes an irrevocable election by the plaintiff and immediately and
forever bars any suit or recovery by the plaintiff against the
governmental unit regarding the same subject matter unless the
governmental unit consents,”13 and
 The term “employee” under the TTCA means “a person, including an
officer or agent, who is in the paid service of a governmental unit by
competent authority, but does not include an independent contractor,
[or] an agent or employee of an independent contractor.”14
By their plain language, the $100,000 liability limit applies only to suits against
local governments, and the provision for employees’ dismissal from suits applies
only to employees of a governmental unit and not to employees of the
governmental unit’s independent contractor.
12
Tex. Civ. Prac. & Rem. Code Ann. § 101.023 (b), (c).
13
Id. § 101.106(b).
14
Id. § 101.001(2) (West Supp. 2015).
8
Chapter 452 of the transportation code regulates regional transportation
authorities. The chapter uses the term “regional transportation authority” to
describe authorities created either under that chapter (as provided for under
subchapter R15) or under the chapter’s predecessor in the revised civil statutes.16
Section 452.052 makes a regional transportation authority a governmental unit
under the TTCA.17
Section 452.056 authorizes a regional transportation authority to contract
for the operation of all or a part of its transportation system.18 Subsection (d) of
that section provides that a private operator that has contracted with a
transportation authority “is not a public entity for purposes of any law of this state
except that an independent contractor of the authority” that performs a function of
the authority “is liable for damages only to the extent that the authority or entity
15
Tex. Transp. Code Ann. §§ 452.701–.720 (West 2013 & Supp. 2015)
(setting out procedures for creating authorities under the chapter).
16
See id. § 452.001(a) (West 2013) (defining “regional transportation
authority” as an authority created under chapter 452 or under “Chapter 683, Acts
of the 66th Legislature, Regular Session, 1979” (referring to Act of May 26, 1979,
66th Leg., R.S., ch. 683, §§ 1–27, 1979 Tex. Gen. Laws 1610, 1610–36
(adopting former Tex. Rev. Civ. Stat. art. 1118y §§ 1–26, which provided for the
creation of a regional transportation authority in metropolitan areas), repealed by
Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025,
1870–71 (creating the transportation code)).
17
Id. § 452.052(c) (West 2013).
18
Id. § 452.056(a)(3).
9
would be liable if the authority or entity itself were performing the function.”19 By
its own terms, this provision applies only to a regional transportation authority
created under chapter 452 or its predecessor.20
Chapter 452 provides similar provisions for certain entities that provide
transportation services but were not created under chapter 452 or its
predecessor:21 transportation entities created under the subtitles of the
transportation code relating to railroads,22 rural rail transportation districts,23
intermunicipal commuter rail districts,24 commuter rail districts,25 and a former title
of the revised civil statutes relating to railroads.26 Section 452.0561 applies to
19
Id. § 452.056(d) (emphasis added); see also § 452.001(a) (defining
“authority” as a regional transportation authority created under chapter 452 or its
predecessor).
20
See id. § 452.056(d) (providing for a limitation on liability for “[a] private
operator who contracts with an authority under this chapter”).
21
Id. § 452.0561.
22
Id. §§ 111.001–112.158 (West 2011 & Supp. 2015) (regulating railroads),
§§ 131.001–.903 (West 2011 & Supp. 2015) (discussing miscellaneous railways
such as interurban railways, electric railways, and street and suburban railways).
23
Id. §§ 172.001–.306 (West 2011 & Supp. 2015).
24
Id. §§ 173.001–.359 (West 2011 & Supp. 2015).
25
Id. §§ 174.001–.354 (West 2011 & Supp. 2015).
26
See id. § 452.0561(a) (limiting the section’s application to transportation
entities created under title 5, subtitle C or D; chapter 172, 173, or 174; or former
revised statutes title 112).
10
these entities and contains language essentially identical to that in section
452.056(d).27
Liability Limits and Multiple Defendants
In their motion for partial summary judgment, the transit defendants
asserted that because wrongful death claims are derivative, all of the damages
sought by Rodriguez constituted one claim; that plaintiffs under the TTCA cannot
exceed a single tort claim for a single injury; and that therefore Rodriguez’s
wrongful death claims against all of the transit defendants are subject to a single
liability cap of $100,000. They contended that their argument was supported by
a unanimous line of case authority. In support of these contentions, the transit
defendants cited transportation code subsections 452.0561(c) and 452.056(d),
as well as a Fifth Circuit case28 holding that those sections’ “only to the extent”
language gives derivative sovereign immunity to independent contractors of
regional transportation authorities.
In Rodriguez’s brief, she directs our attention to the text of the TTCA to
argue that the liability limitation in the TTCA applies individually and separately to
each governmental unit sued, rather than collectively. She notes that the
subsections setting out the liability limits reference governmental units
individually, rather than referring collectively to “all units”: “[a] governmental unit
27
Id.
28
GLF Constr. Corp. v. LAN/STV, 414 F.3d 553, 557 (5th Cir. 2005).
11
in the state,” “liability of a unit of local government,” “[l]iability of a municipality,”
and “liability of an emergency service organization.”29 She contends that the fact
that different types of governmental units have different limits supports her
interpretation, because otherwise the provisions “would be unworkable and make
no sense.” In a suit with multiple defendants with different liability caps, whose
cap would apply?
Rodriguez cites Tarrant County Water Control & Improvement District No.
1 v. Crossland.30 In that case, this court considered the amount for which two
government defendants—the State of Texas and a regional water district—could
be jointly and severally liable.31 The jury found the water district liable for
$79,800 (under the $100,000 cap applicable to the entity) and the State liable for
$229,25032 (above the $100,000 cap applicable to the State).33 We held that the
State’s liability was capped at $100,000, that the total amount of the judgment
therefore would be $179,800, and that neither entity could be held jointly and
severally liable for more than the cap applicable to it—that is, the plaintiff could
29
See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.023 (West
2011).
30
781 S.W.2d 427, 438 (Tex. App.—Fort Worth 1989, writ denied),
disapproved of on other grounds by City of Dallas v. Mitchell, 870 S.W.2d 21
(Tex. 1994).
31
Id.
32
Elsewhere in the opinion, this court calculated that under the jury’s
verdict, the State was liable for $297,250. Id.
33
Id.
12
not recover the full amount of damages from only one of the defendants.34 We
did not hold that the plaintiff’s total damages recoverable from the two
defendants together were limited to $100,000.35
Rodriguez distinguishes City of Austin v. Cooksey,36 a case that the transit
defendants had relied on in their motion. She states that in Cooksey, the
Supreme Court of Texas recognized that the plaintiff could have recovered more
from a defendant city if the plaintiff had given the city proper notice of the claims.
In that case, the court stated that “[w]hen one person is injured or killed, and one
plaintiff brings suit [against the State], the applicable limit of liability is $100,000,”
and “[t]hat limit should not change simply because the deceased is survived by
two or more statutory beneficiaries under the wrongful death statute.”37 The
court held that the phrase “per person” in the predecessor to section 101.023
“refers to the person or persons who sustain injury.”38 Thus, in a suit against the
State for the death of one person, the State cannot be held liable for more than
$100,000 regardless of the number of plaintiffs in the suit.39
34
Id.
35
Id.
36
570 S.W.2d 386 (Tex. 1978).
37
Id. at 387–88.
38
Id. at 388.
39
See id.
13
The court in Cooksey did not affirmatively hold that, but for the lack of
notice, the plaintiffs could have recovered against both the State and the city.
We therefore do not agree with Rodriguez’s reading of the case. But as
Rodriguez stated in her brief, the only reason discussed by the court for why the
plaintiff could not recover against the city was that the plaintiff had not provided
proper notice.40 The court’s holding that the plaintiffs’ damages were limited was
based on how the statutory limit applies in a wrongful death case with multiple
plaintiffs. The court did not address how to cap a plaintiff’s damages in a case
with multiple defendants, each with limited liability. Thus, Rodriguez is correct
that the case does not support the transit defendants’ position.
Rodriguez then looks at transportation code section 452.056(d) and
asserts that, because under that provision MTI and MTA are liable to the extent
that FWTA would be, they each may be liable for an amount up to the same cap
that applies to FWTA. Rodriguez states that it is undisputed that FWTA is a
regional transportation authority, and thus FWTA, MTI, and MTA may each be
held liable for damages up to the cap applicable to FWTA.
In their motion for partial summary judgment, the transit defendants cited
both section 452.056 and section 452.0561 in support of their arguments. As
noted above, section 452.056 applies only to regional transportation authorities
40
Id.
14
created under chapter 452 or its predecessor, and section 452.0561 applies to
different kinds of transportation entities.
The transit defendants did not produce any evidence that FWTA is a
transportation entity covered by section 452.0561. Their summary judgment
evidence included FWTA’s contract with MTI and MTA, and that contract stated
that MTI and MTA “are independent contractors of the FWTA, as that term is
defined or understood pursuant to § 452.056(d)” of the transportation code.
[Emphasis added.] And in support of their motion, they pointed to a case in
which the Supreme Court of Texas referred to FWTA as a regional transportation
authority.41 Because the summary judgment evidence indicated that section
452.056 applied, and because the transit defendants did not establish the
applicability of section 452.0561 and specifically relied on a case indicating that
section 452.056 applies, summary judgment could only have been granted on
the basis of section 452.056, not section 452.0561. Our review of the summary
judgment is therefore limited to consideration of section 452.056.
We have found only nine Texas cases citing section 452.056. Three of
those cases involve issues not relevant to this appeal.42 We briefly discuss the
other six.
41
See Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid Transit, 369
S.W.3d 845, 847 (Tex. 2012).
42
See Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327
S.W.3d 118, 135 n.11 (Tex. 2010) (referencing section 452.056 but not
addressing the appellee’s argument that the appellant had immunity under that
15
In Brown & Gay Engineering, Inc. v. Olivares, “a private company that
performed allegedly negligent acts in carrying out a contract with a governmental
unit [sought] to invoke the same immunity that the government itself enjoys.”43
The Texas Supreme Court referenced sections 452.056 and the similar section
452.0561, but it did not apply those sections to its holdings or rely on them in its
disposition. After reviewing Texas cases on when sovereign immunity is
extended to government contractors, the court held that “we cannot adopt Brown
& Gay’s contention that it is entitled to share in the [Fort Bend County Toll Road]
Authority’s sovereign immunity solely because the Authority was statutorily
authorized to engage Brown & Gay’s services and would have been immune had
it performed those services itself.”44
In a concurring opinion, Chief Justice Hecht cited the language in section
452.0561 (which is substantially similar to section 452.056) as an example of
when an independent contractor may act as the government, “in effect becoming
the government for limited purposes.”45 Chief Justice Hecht opined that in that
section); Dallas Area Rapid Transit v. Morris, 434 S.W.3d 752, 758 n.3 (Tex.
App.—Dallas 2014, pet. denied) (citing the statute in the course of determining
whether DART was a common carrier); Stephens v. Dallas Area Rapid Transit,
50 S.W.3d 621, 633 (Tex. App.—Dallas 2001, pet. denied) (op. on reh’g) (looking
at the statute in determining whether DART was a political subdivision of the
state).
43
461 S.W.3d 117, 122 (Tex. 2015).
44
Id. at 127.
45
Id. at 129 (Hecht, C.J., concurring).
16
circumstance, the independent contractor “should be entitled to the government’s
immunity.”46 But the opinion of the court did not go that far.
Both Rodriguez and the transit defendants discuss the Dallas court of
appeal’s opinion in Castro v. Cammerino.47 The court in that case made several
holdings that are relevant to the issues in this case. Castro, an employee of a
Dallas Area Rapid Transit (DART) contractor, was driving a DART bus when he
struck Cammerino.48 When Cammerino sued him, Castro argued that he was
entitled to the damages cap under TTCA section 101.106.49
The court construed the version of the TTCA in effect at the time, which
provided that an “employee” under that Act meant “a person, including an officer
or agent, who is in the paid service of the governmental unit by competent
authority, but does not include an independent contractor . . . or employee of an
independent contractor.”50 The court then looked at section 452.056 and article
6550d of the revised civil statutes.51 The court held that under those provisions,
46
Id.
47
186 S.W.3d 671 (Tex. App.—Dallas 2006, pet. denied).
48
Id. at 673.
49
Id. at 673, 678.
50
Id. at 677.
51
See Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 16, 1995 Tex. Gen
Laws 1025, 1838 (providing that a transportation entity created under that title is
a governmental unit and that “[i]f an independent contractor of the entity is
performing a function of the entity or of a regional transportation authority . . . ,
17
“[t]he independent contractor of a governmental unit is expressly entitled to the
protection of the statutory damage cap” of TTCA section 101.106.52
In Martin K. Eby Construction Co., Inc.,53 that court considered whether an
engineering firm that had contracted with DART had immunity under section
452.056 and article 6550d of the revised civil statutes.54 The Dallas court
accepted that, under the language of the statute, an authority’s independent
contractor could have immunity from liability based on the function it performed.55
It then cited its previous holding in Castro and stated that “we interpret the
phrase ‘only to the extent’ to mean that the damages available against an
independent contractor are limited to those damages for which the government
entity would be liable” and that the engineering firm in that case could not rely on
those provisions to establish immunity from liability.56
the contractor is liable for damages only to the extent that the entity . . . would be
liable if the entity . . . were performing the function”), repealed by Act of May 11,
2009, 81st Leg., R.S., ch. 85, § 5.01(a)(1), 2009 Tex. Gen. Laws 153, 205.
52
Castro, 186 S.W.3d at 678.
53
Martin K. Eby Constr. Co., Inc., v. LAN/STV (Eby I), 205 S.W.3d 16 (Tex.
App.—Dallas 2006, pet. denied).
54
Id. In 2009, the legislature repealed article 6550d and adopted section
452.0561. See Act of May 11, 2009, 81st Leg., R.S., ch. 85, § 2.05, 2009 Tex.
Gen. Laws 153, 197.
55
Eby I, 205 S.W.3d at 20.
56
Id. at 20–21.
18
In Reunion Hotel/Tower Joint Venture,57 the Dallas court stated that under
section 452.056, DART had the authority to construct and operate a
transportation system. The court held that because DART would not have been
liable for the property damage at issue in the case, then, under section 452.056,
neither was DART’s independent contractor.58 This opinion was distinguished by
the Dallas court in the appeal after remand in the Eby case.59 In Eby II, the court
declined to revisit its prior holding in Eby I that section 452.056 did not give
LAN/STV immunity.60
Finally, the Houston Fourteenth Court of Appeals discussed the section in
2014 in Belehu v. Lawniczak.61 Lawniczak involved the Metropolitan Transit
Authority of Harris County, which had a contract with a private corporation to
provide drivers for Metro buses.62 After a bus driven by such a driver struck and
killed someone, the administrator of the decedent’s estate sued the driver.63 The
57
Reunion Hotel/Tower Joint Venture v. Dallas Area Rapid Transit, 250
S.W.3d 203, 206 (Tex. App.—Dallas 2008, no pet.).
58
Id.
59
Martin K. Eby Const. Co. v. LAN/STV (Eby II), 350 S.W.3d 675 (Tex.
App.—Dallas 2011), rev’d sub nom on other grounds, LAN/STV v. Martin K. Eby
Const. Co., Inc., 435 S.W.3d 234 (Tex. 2014).
60
Id. at 685.
61
437 S.W.3d 913 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
62
Id. at 913.
63
Id. at 913–14.
19
driver argued in a summary judgment motion that as an employee of an
independent contractor under section 452.056(d), he himself should be
considered an independent contractor for purposes of that section.64 He also
argued that he should be considered an employee of a governmental unit under
TTCA section 101.106.65 The Fourteenth Court of Appeals did not reach the
substance of the driver’s argument, holding instead that the driver had failed to
provide summary judgment evidence that the Metro was a transportation
authority under chapter 452.66 In summary, none of these cases provide express
support for the transit defendants’ position regarding the liability caps among
multiple defendants.
Under the TTCA, no matter how many parts of a particular government unit
a plaintiff sues, that unit cannot be held liable for an amount in excess of the cap
for that unit.67 On the other hand, when a plaintiff sues multiple entities, each
with liability limited by the TTCA, the plaintiff may recover separately from each
defendant up to the amount of the cap that applies to each respective entity.68
64
Id. at 914.
65
Id.
66
Id. at 916.
67
See, e.g., Crossland, 781 S.W.2d at 430 (observing that the trial court
had treated the Texas Parks and Wildlife Department and the Texas Department
of Highways and Public Transportation, both defendants in the case, as one
governmental unit—the State of Texas).
68
See, e.g., id. at 438.
20
We agree with the transit defendants that, under their summary judgment
evidence, FWTA is a regional transportation authority, and that, because
Rodriguez’s claims arise out of the death of one person, its liability under the
TTCA is capped at $100,000.69 Under transportation code section 452.056(d)
and the cases cited above, for claims arising out of their performance of a
function of FWTA, MTI and MTA each have liability capped at $100,000 per
person.70
Rodriguez alleged that MTI and MTA contracted to manage and operate
FWTA’s public transportation system, and the transit defendants’ summary
judgment evidence supports this assertion. Thus, Rodriguez’s claims against
MTI and MTA appear to be based on those entities’ performance of a function of
FWTA. Accordingly, MTI’s liability would be capped under the TTCA at
$100,000, as would MTA’s liability. Rodriguez’s potential damages under the
TTCA are limited to $300,000, and she may recover up to that amount, assuming
of course that she can establish the liability of each entity and the damages
caused by each.
In their brief, the transit defendants argue that this interpretation of the
applicable statutes expands the tort liability of regional transportation systems.
69
See Tex. Civ. Prac. & Rem. Code Ann. § 101.023(b).
70
See Tex. Transp. Code Ann. § 452.056(d); Eby I, 205 S.W.3d at 20
(deciding whether the contractor had immunity from liability based on an analysis
of the function it performed and not based on the characterization of the plaintiff’s
claim).
21
But even under our reading of the applicable statutes, FWTA is not liable for
more than $100,000 no matter how many defendants Rodriguez successfully
sues in this wrongful death action. And without the language in section
452.056(d), there would be no limitation to the amount that Rodriguez could
recover against MTI and MTA. The section, however, caps their liability. This
reading does not expand the tort liability of regional transportation systems.
The transit defendants further argue that Rodriguez does not address the
contract among the transit defendants that invoked the transportation code and
the TTCA. They say that “Rodriguez’s argument runs afoul not only of the
statute, but it also contravenes the portions of the agreement between the parties
which adopt the tort liability protections authorized by the Legislature.” Our
holding is consistent with the language in the agreement, which adopts the
language of the transportation code and recognizes the liability limit of MTI and
MTA under the transportation code. We decline to read the transportation code
as giving a regional transportation authority to confer onto a private contractor
more limited liability than the legislature has provided.
Next the transit defendants assert that the legislature’s use of the word
“only” in the phrase “only to the extent” in section 452.056 means that damage
caps cannot be stacked to recover up to $100,000 each from a regional
transportation entity and its independent contractors. They argue that this court
rejected stacking in Crossland.
22
The transit defendants assert that in Crossland, the Department of
Highways and the Parks Department “were distinct governmental units
performing independent governmental functions,” and this court capped their
combined liability at $100,000. But those entities were not “distinct governmental
units” for purposes of liability limits; they were both departments of the State of
Texas, and a judgment against either would be a judgment against the State.71
Thus, the combined damages against those two departments could not exceed
the liability cap applicable to the State.72 As we stated above, we did not hold in
Crossland that a plaintiff may not recover more than $100,000 in a suit against
multiple entities with liability limits under the TTCA, no matter how many
governmental entities are defendants. And in this case, a judgment against MTI
or MTA is not a judgment against FWTA. Crossland does not help the transit
defendants.
Because we have held that the $100,000 cap applies to MTI and to MTA,
even if Rodriguez prevails on her claims against them, neither will be liable for
more than that amount. And assuming that Rodriguez establishes the liability of
each entity, the most that she may recover from all three defendants in total is
$300,000.
71
Crossland, 781 S.W.2d at 438 (stating that under the jury’s verdict, “the
State of Texas was liable for $297,250 (45% for Parks and Wildlife Department
plus 30% for the Highway Department)”).
72
See id. (holding that the State’s liability was capped at $100,000).
23
The transit defendants also repeat arguments from their summary
judgment motion that “[i]t is hard to fathom that the Legislature intended unlimited
liability of regional transportation authorities based upon the number of
independent contractors that are necessary to execute its governmental
functions” and that Rodriguez’s proposed construction of the relevant statutes
“fails in any way to shield the public from unlimited exposure.”
The Supreme Court of Texas stated in Brown & Gay that “[s]overeign
immunity has never been defended as a mechanism to avoid any and all
increases in public expenditures.”73 The doctrine “was designed to guard against
the ‘unforeseen expenditures’ associated with the government’s defending
lawsuits and paying judgments ‘that could hamper government functions’ by
diverting funds from their allocated purposes.”74 The court stated that
“[i]mmunizing a private contractor in no way furthers this rationale,” and “private
companies can and do manage their risk exposure by obtaining insurance.”75
Further, regardless of the consideration that the legislature may have given
to the number of independent contractors FWTA would need to execute its
functions, this argument does not address the issues in this case. Under the
construction we have applied, FWTA, MTI, and MTA will not be subject to
73
Brown & Gay, 461 S.W.3d at 123.
74
Id.
75
Id.
24
unlimited liability, given that a statutory cap on liability applies to them. Our
reading of the statutes at issue does not subject regional transportation
authorities or their independent contractors to unlimited exposure.
We sustain this part of Rodriguez’s first issue.
Vaughn’s Employment Status
In the part of the transit defendants’ summary judgment motion addressing
the claims against Vaughn, Vaughn asserted several arguments for why she
should be treated as the employee of a governmental unit and therefore
dismissed under the election of remedies provision of TTCA section 101.106.
First, she distinguished Castro, arguing that Castro construed the former version
of section 101.106, and that, since then, the legislature had completely rewritten
that section and had greatly enhanced the protection of employees performing
governmental functions.
The part of Castro to which Vaugh refers is its holding that the caps in the
TTCA on government liability “are not transmitted to the ‘employees’ of the
governmental unit or the ‘employees’ of the independent contractor.”76 The court
noted that governmental employees were not left unprotected because, under
the then-effective version of section 101.106, “‘[a] judgment in an action or a
settlement of a claim under [the TTCA] bars any action involving the same
76
Castro, 186 S.W.3d at 678.
25
subject matter by the claimant against the employee of the governmental unit
whose act or omission gave rise to the claim.’”77
The court considered “[p]ivotal” the fact that “the employees of
independent contractors are not included in former section 101.106, and they are
specifically excluded from the definition of an ‘employee’ under the [TTCA].”78
The court held that, “[a]ccordingly, the statutory framework providing the ‘damage
caps’ and the ‘bar’ does not include the employees of independent contractors of
governmental units.”79
Vaughn stated in her summary judgment motion that the former version of
section 101.106 applied only after a judgment or settlement had been reached
with a governmental entity. “In essence, that was the limited holding of Castro;
namely, [the former version of section 101.106] did not apply to protect the driver
in that case because no prior judgment or settlement existed.” And, she argued,
placed in this context, Castro was not dispositive of Vaughn’s fate in this case.
Thus, Castro was limited “to being a historical anachronism.”
Vaughn further argued that Castro was “plainly wrong” when it concluded
there was no language in the transportation code supporting the bus driver’s
claim of derivative governmental immunity. She pointed to section 452.056(d),
77
Id.
78
Id.
79
Id.
26
stating that the legislature’s use of the word “except” in that subsection “is a
statement of legislative intent.” She argues, “[t]he only reason the word ‘except’
is in the statute is to activate the Legislature’s desire to treat ‘independent
contractors’ under the statute as ‘public entities’ for the purpose of tort claim
limits.”
Finally, Vaughn asserted that the Supreme Court of Texas’s Franka v.
Velasquez80 is a “sweeping decision embracing the concept of derivative
sovereign immunity.” She stated that Franka holds that a court may look to
statutes outside the TTCA to determine if an employee can be considered a
government employee for purposes of TTCA section 101.106. The trial court in
this case agreed with Vaughn, and it granted summary judgment for Vaughn and
dismissed Rodriguez’s claims against her.
In Rodriguez’s brief, she argues that Vaughn was not entitled to have her
claims dismissed under section 101.106 because there is no dispute that Vaughn
was, at all material times, the employee of a private contractor of FWTA, and her
liability was therefore not capped. She counters Vaughn’s characterization of
Castro by stating that the actual basis for the court’s conclusion in Castro is
“explicitly clear”—that employees of independent contractors are not included in
section 101.106. She states that the Castro court specifically said that its holding
did not depend on whether the transit authority had first been found liable.
80
332 S.W.3d 367 (Tex. 2011).
27
Rodriguez further argues that, as amended, section 101.106 still applies to
only employees of governmental units, and the TTCA’s definition of “employee”
still does not include an independent contractor’s employee. She states that
Franka does not support Vaughn’s point about looking outside the TTCA to
determine whether a person is a governmental entity’s employee because, unlike
the extra-TTCA statute relied on by Vaughn, the statute in Franka specifically set
out when the category of employee to which the defendant belonged would be
considered an employee of a state agency for purposes of determining liability.
We agree with Rodriguez. As noted by the transit defendants, in Castro,
the court construed the prior version of the TTCA section 101.106. However,
Castro’s analysis was unaffected by the statute’s amendment. The opinion’s
holdings depend on the same statutory provisions that we rely on—transportation
code section 452.046(d) and the definition of “employee” in the TTCA.81 Under
the version of the TTCA applicable to Rodriguez’s claims, section 101.106
applies to employees of a governmental unit, and the definition of “employee”
under the chapter specifically excludes the employees of independent
contractors,82 just like in Castro. Accordingly, Vaughn is not an employee of a
governmental unit, and section 101.106 does not apply to her.
81
Castro, 186 S.W.3d at 678–79.
82
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (e), (f); see also id. §
101.001(2) (defining “employee”).
28
The word “except” in transportation code section 452.056(d) does not alter
our determination that Vaughn is not a governmental unit’s employee under the
TTCA. The statute does not state that a transportation authority’s private
contractor is not a public entity unless it performs a function of the authority. It
states that an independent contractor is not a public entity, except that such an
entity is liable for damages to the extent that the authority would be liable if it
were performing the function.83 In other words, a contractor of a transportation
authority is not a public entity, but whatever limits of liability apply to a transit
authority, those same limits apply to an independent contractor when that
contractor performs the functions of the authority.
To see the statutes in the proper light, we note that governmental units
have immunity from suit and liability, except to the extent that immunity is
waived.84 The TTCA is a limited waiver of that immunity, in that it waives
immunity from suit for some claims and immunity from liability up to a certain
amount. On the other hand, independent contractors of governmental units do
not have immunity from suit or from liability, except to the extent that immunity is
conferred upon them by the legislature. Transportation code section 452.056(d)
is a limited conferment of immunity from liability, such that independent
contractors have no more immunity than the regional transportation authority with
83
Tex. Transp. Code Ann. § 452.056(d).
84
Rusk State Hosp. v. Black, 392 S.W.3d 88, 93 (Tex. 2012).
29
which they have contracted would have to the extent they perform a function of
that authority.85 Dictating that courts treat an entity the same way for liability
purposes that a governmental unit would be treated is not the same as making
an entity itself a governmental unit, such that its employees are employees of a
governmental unit.
Further support for our reading of the relevant statutes comes from the
TTCA’s unambiguous instruction that the employee of a governmental unit’s
contractor is not an employee of a government unit.86 If an authority’s contractor
were a governmental unit, then its employee would be the employee of a
governmental unit.
We also agree with Rodriguez that Franka is of no help to Vaughn. In that
case, as Vaughn said, the court looked at a statute outside of the TTCA to see if
the employee in question was an employee of a governmental unit for purposes
of section 101.106.87 The employee in the case was a medical resident
employed by one governmental unit and paid by a different governmental unit.88
The statute outside the TTCA that the court looked to was a provision in the
85
Cf. Eby 1, 205 S.W.3d at 20 (rejecting the defendant contractor’s
interpretation of the transportation code, which would have placed the contractor
in a better position than the authority with which it had contracted).
86
Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2).
87
Franka, 332 S.W.3d at 374.
88
Id. at 373.
30
health and safety code that explicitly provided that a medical unit or supported
medical school is a state agency, and further provided that a resident of a
medical unit or supported medical school “is an employee of a state agency for
purposes of . . . determining the liability, if any, of the person for the person’s acts
or omissions while engaged in the coordinated or cooperative activities of the
unit.”89
Transportation code section 452.056(d), on the other hand, does not make
an independent contractor’s employee the employee of a governmental unit. It
does not mention employees at all. That section therefore does not override the
provisions of the TTCA that exclude independent contractors’ employees from
the definition of “employee” under the TTCA. And the statute at issue in Franka
supports our decision because it shows that the legislature knows how to
designate an entity as a governmental unit and to designate an employee as an
employee of a governmental unit for purposes of liability. Vaughn did not show
her entitlement to judgment as a matter of law on the ground that the claims
against her should be dismissed under TTCA section 101.106.
We sustain the second part of Rodriguez’s first issue. Having done so, we
do not consider her alternative argument under the open courts provision of the
Texas Constitution.90
89
Id. at 373–74 (quoting Tex. Health & Safety Code Ann. § 312.007(a)
(West 2010)).
90
See Tex. Const. art. I, § 13.
31
2. The denial of Rodriguez’s motion for summary judgment
In Rodriguez’s second issue, she argues that the trial court erred by
denying her motion for partial summary judgment. In her motion, Rodriguez
included as summary judgment grounds that the TTCA’s liability limits apply
separately to each defendant and that liability against Vaughn is not capped. On
appeal, Rodriguez asserts that the trial court erred by not granting partial
summary judgment on these grounds. She asks this court to render a partial
judgment making those two declarations and also declaring that she is entitled to
recover the $100,000 tendered by MTI in satisfaction only of MTI’s liability to her
and that she have and recover judgment from MTI in that amount. Given our
disposition of Rodriguez’s first issue, we sustain her second issue as to the
questions of liability caps and Vaughn’s potential liability.
As for the second part of this issue, the record does not indicate that
Rodriguez is entitled to the relief she requests. In Rodriguez’s petition, she
alleged that the transit defendants had waived any right to relief under the
interpleader action and that their interpleader action was barred by limitations. In
her motion for summary judgment, Rodriguez asserted that MTI had not
unconditionally tendered funds into the registry of the court, that, as a matter of
law, it was not an innocent, disinterested stakeholder, and that MTI’s interpleader
claims were barred by limitations. She further sought a no-evidence summary
judgment on MTI’s claim for interpleader. But she also asserted that because
MTI had acknowledged and admitted its liability of $100,000, she was entitled to
32
have that amount awarded to her. Because the trial court granted the
interpleader, she essentially asks us to affirm that part of the trial court’s
judgment against MTI.
While MTI did not contest liability in its initial interpleader petition, in the
amended petition adding the other transit defendants, the transit defendants took
a different position. They asserted that Rodriguez’s claims were defensible, but if
the trial court accepted the interpleader and dismissed all of the claims against
them, they would choose not to put up a defense. In essence, the transit
defendants made a settlement offer. That is, their willingness to pay $100,000
without a trial on liability or damages was contingent on the trial court accepting
their terms—that among them they would pay no more than $100,000 total, and
that, upon that payment, the claims against all of the transit defendants would be
dismissed. Setting aside the question of whether the nature of MTI’s attempted
interpleader met the requirements for an interpleader—an issue contested in the
trial court—the conditions for the transit defendants’ offer have not been met.
The trial court’s judgment accepting the interpleader was based on the trial
court’s acceptance of the transit defendant’s position that the caps cannot be
stacked and that Vaughn and the other transit defendants were entitled to be
dismissed from the suit. Rodriguez has not accepted those terms, and we have
agreed with her that under the law she is not limited to $100,000 total. We
cannot render judgment as requested by Rodriguez because we reversed the
judgment of interpleader and the liability of MTI has not been established. We do
33
not address whether interpleader is available to the transit defendants.91
Rodriguez did not raise it as an issue on appeal, and such a holding is not
necessary to our disposition. We overrule this part of Rodriguez’s second issue.
3. The denial of trial and appellate fees for the transit defendants
In the transit defendants’ cross-issue, they argue that a trial court may not
ignore expert evidence of reasonable and necessary attorney’s fees and award
$0 in trial and appellate fees after properly granting an interpleader. In its
findings of fact and conclusions of law, the trial court concluded that the transit
defendants had failed to segregate their fees. The court further concluded that
although the transit defendants were required to put on evidence to support their
billing under the lodestar method, they had not done so.92
91
See Tex. R. Civ. P. 43 (providing the right of interpleader when a person
is or may be exposed to double or multiple liability); Tex. Lab. Code Ann. §
417.001 (providing for subrogation); Franks, 936 S.W.2d at 960–61 (construing
section 417.001 and its predecessor and stating that between the injured
employee and the worker’s compensation carrier, there is but one claim
belonging to the employee, and that a carrier may recover for benefits it has paid,
but damages recovered over that amount belong to the employee). See also
Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 33 (Tex. 2008) (“For decades,
Texas law has required the first money recovered by an injured worker from a
tortfeasor to go to the worker’s compensation carrier, and until the carrier ‘is paid
in full the employee or his representatives have no right to any funds.’” (citations
omitted)).
92
See Enzo Invs., LP v. White, 468 S.W.3d 635, 653 (Tex. App.—Houston
[14th Dist.] 2015, pet. denied) (“Here, White chose to use the lodestar method to
establish the amount of reasonable and necessary attorney’s fees attributable to
the successful prosecution of his breach-of-contract claim against Enzo; thus, he
was required to provide evidence of the time expended on specific tasks.”).
34
Though Rodriguez did not challenge the availability of interpleader in her
appeal, in the transit defendants’ cross-appeal, she challenges their entitlement
to attorney’s fees. She argues that the transit defendants did not establish that
they are innocent, disinterested stakeholders,93 did not unconditionally tender the
interpleader fund into the registry of the trial court,94 were not exposed to double
or multiple liability,95 unreasonably delayed filing the interpleader action,96 and
presented insufficient evidence to require any award of attorney’s fees.97 She
further argues that MTI voluntarily attempted to subject itself to double or multiple
93
See United States v. Ray Thomas Gravel Co., 380 S.W.2d 576, 580–81
(Tex. 1964) (discussing when an interpleading party is entitled to attorney’s fees
and using the terms “innocent stakeholder” and “disinterested stakeholder”);
Kelsey v. Corbett, 396 S.W.2d 440, 442 (Tex. Civ. App.—El Paso 1965, writ ref’d
n.r.e.) (“We see no basis for such allowance of attorney’s fees [for the Tax
Assessor-Collector], since the Tax Assessor-Collector was not in the true
position of a stakeholder but was, in fact, a party defendant”).
94
See Hanzel v. Herring, 80 S.W.3d 167, 173 (Tex. App.—Fort Worth
2002, no pet.) (stating that the elements of an interpleader action include that
“the party has unconditionally tendered the fund or property into the court’s
registry”).
95
See Taliaferro v. Tex. Commerce Bank, 660 S.W.2d 151, 153 (Tex.
App.—Fort Worth 1983, no writ) (“An interpleader suit is authorized by Rule
43 . . . when a stakeholder ‘is or may be exposed to double or multiple liability.’”).
96
See Hanzel, 80 S.W.3d at 173 (stating that the elements of an
interpleader action include that “the party has not unreasonably delayed filing an
action for interpleader”).
97
See Enzo Invs., 468 S.W.3d at 653.
35
liability by intervening as a defendant in Insurance’s suit.98 Insurance similarly
argues that the transit defendants were not entitled to attorney’s fees because
they were required but failed to segregate their fees, that they failed to present
proper evidence to support an award of attorney’s fees, and that they are the
negligent parties or responsible for the conduct of a negligent party that caused
the damages sought by Rodriguez and Insurance.99
As we have said, the transit defendants offered the $100,000 on the
condition that the trial court find that liability against them was capped and that
Vaughn was an employee of a governmental unit entitled to dismissal. The trial
court granted summary judgment on those bases, and we have held that the trial
court erred by doing so. Because we have reversed the trial court’s summary
judgment granting the interpleader, we cannot say that the trial court abused its
discretion by denying the requested trial and appellate attorney’s fees for the
transit defendants.
Further, the trial court was correct that the transit defendants did not
provide sufficient evidence of the work they had done up to that point to support
their requested fees. The Supreme Court of Texas has held that “generalities
about tasks performed provide insufficient information for the fact finder to
98
Brown v. Getty Reserve Oil, Inc., 626 S.W.2d 810, 815 (Tex. App.—
Amarillo 1981, writ dism’d) (“When an interpleading party is responsible for the
conflicting claims to the funds, the party is not entitled to attorneys’ fees incurred
in interpleading the claimants.”).
99
See id.
36
meaningfully review whether the tasks and hours were reasonable and
necessary under the lodestar method.”100 An attorney requesting fees under the
lodestar method is not required to introduce his time sheets or billing records.101
But what is required is, “at a minimum, evidence ‘of the services performed, who
performed them and at what hourly rate, when they were performed, and how
much time the work required.’”102 An attorney’s evidence of fees is insufficient if
the attorney fails to provide evidence of the time devoted to specific tasks.103
At the hearing on attorney’s fees, one of the transit defendants’ attorneys
was asked if he was basing his fee request on the lodestar method. He
answered, “I assume so.” Insurance’s attorney then asked him a series of
questions about what specific tasks he had worked on and how long those tasks
had taken.
First Insurance’s attorney asked the transit defendants’ attorney about the
time he had spent preparing the interpleader.
Q. How long did that take?
A. How long did what take?
Q. Preparing the interpleader.
100
Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014).
101
See id.
102
Id. (quoting El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 764 (Tex. 2012)).
103
Id. (citing City of Laredo v. Montano, 414 S.W.3d 731, 736–37 (Tex.
2013).
37
A. The pleading itself? I don’t have the bill in front of me, but—
Q. You don’t [know] how long that task took?
A. Well, it took a number of hours to research the applicability of the
impleader and to put the pleading together.
Q. But you can’t give me a specific number as we sit here today?
A. I don’t have it in front of me, no.
The rest of the attorney’s testimony was similar. When asked about what
other tasks the attorney took before Insurance nonsuited its claims, the attorney
testified that he made phone calls and sent letters to Rodriguez’s attorney. That
attorney could not say how many phone calls because he did not have his bill in
front of him. He could not answer how many hours he spent on Insurance’s suit
between the filing of the interpleader and Insurance’s dismissal because “[he]
[did not] have [his] bills in front of [him].” The transit defendants’ other attorney
also testified, but his testimony was no more specific than that of the first
attorney. No other evidence in the record before the trial court provided evidence
of the time spent on specific tasks.
This case illustrates the Supreme Court of Texas’s statements in El Apple
that while time records or billing statements are not required to establish a
lodestar fee, “in all but the simplest cases, the attorney would probably have to
refer to some type of record or documentation to provide” the information
required to establish a lodestar fee.104 The trial court did not abuse its discretion
104
El Apple, 370 S.W.3d at 763.
38
by not awarding attorney’s fees to the transit defendants. We overrule the transit
defendants’ sole issue.
C. Conclusion
Having overruled the transit defendants’ sole issue, and having sustained
Rodriguez’s first issue and her second issue in part, we reverse the trial court’s
judgment. We render declaratory judgment that the tort-liability limits applicable
to FWTA, MTA, and MTI apply separately to each defendant and that the
potential tort liability of Vaughn is not capped under the TTCA. We remand this
case for further proceedings.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
WALKER, J. and MEIER, J., concur without opinion.
DELIVERED: June 23, 2016
39