                                            CONCURRING OPINION
                                                  No. 04-08-00379-CV

                               Patrick KIMBRELL, M.D. and John Horan, M.D.,
                                              Appellants

                                                           v.

                            Jeremy MOLINET, Louis Molinet and Miriam Molinet,
                                              Appellees

                         From the 150th Judicial District Court, Bexar County, Texas
                                      Trial Court No. 2005-CI-14669
                             Honorable Joe Frazier Brown, Jr., Judge Presiding

Opinion by:                                Catherine Stone, Justice
Concurring opinion by:                     Rebecca Simmons, Justice

Sitting:            Catherine Stone, Justice
                    Phylis J. Speedlin, Justice
                    Rebecca Simmons, Justice

Delivered and Filed: December 31, 2008

           I concur in the judgment of this case, but I write briefly to encourage the Texas

Legislature to clarify the interaction between sections 33.004(e) and 74.251 of the Civil Practice

and Remedies Code.

A.         Applicability of Chapter 33, Proportionate Responsibility

           The legislative history of Chapter 33, its structure, and its plain language suggest that it

applies to “any cause of action based on tort in which a defendant, settling person, or responsible



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third party is found responsible for a percentage of the harm for which relief is sought” other

than specific enumerated exceptions.               TEX. CIV. PRAC. & REM. CODE ANN. § 33.002(a)(1)

(Vernon 2008). Key to the application of Chapter 33 is the ability of defendants to liberally

designate responsible third parties regardless of limitations or personal jurisdiction.                             Id.

§ 33.004(f), (g), (i), (j). Yet this court’s application of section 74.251’s limitations period to

Chapter 33 bars the claimant from exercising a reciprocal statutory right to join designated

responsible third parties regardless of limitations. Such a result creates an inequity and potential

for abuse the Legislature may not have anticipated. 1

B.       Interaction Between Chapter 33 and Chapter 74

         The majority’s opinion correctly identifies the tension between chapter 33 and chapter 74

of the Texas Civil Practice and Remedies Code. See id. § 33.004; id. § 74.251 (Vernon 2005).

There were compelling reasons behind the Legislature’s enactment of a two year statute of

limitations for health care liability claims. 2 See Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.

1983) (noting the purpose of the act “was to provide an insurance rate structure that would

enable health care providers to secure liability insurance”). Likewise, there are compelling

reasons behind the application of proportionate responsibility to any cause of action so that all

responsible persons are before the court. In reviewing the legislative intent behind the enactment

1
  At least one legislator, Senator Ratliff, did not anticipate the result of this court’s analysis. When asked during
floor debates whether the sixty day time period for a plaintiff to join a designated responsible third party, regardless
of limitations, applied to a medical malpractice claim, Senator Ratliff responded: “Yes, if health care providers are
going to have the benefit of the designation of responsible third parties, then they have to abide by the same rules as
everyone else. This 60-day provision would apply in health care liability claims.” S.J. of Tex., 78th Leg., R.S. 5005
(2003), available at http://www.journals.senate.state.txs.us/sjrnl/78R/pdf/SJ06-01-F.pdf.
2
  The Medical Liability and Insurance Improvement Act reinstated the two year statute of limitations for medical
malpractice claims. Medical Liability and Insurance Improvement Act of Texas, 65th Leg., R.S., ch. 817, § 1, sec.
10.01, 1977 Tex. Gen. Laws 2039, 2052, amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003
Tex. Gen. Laws 847, 872. Article 4590i of the Revised Civil Statutes became section 74.251 of the Civil Practices
and Remedies Code. The language in section 74.251(a) is identical to that of article 4590i except for three non-
substantive changes. See generally Joseph P. Witherspoon, Constitutionality of the Texas Statute Limiting Liability
for Medical Malpractice, 10 TEX. TECH. L. REV. 419, 428 (1978) (listing a purpose of the Medical Liability and
Insurance Improvement Act as intending to protect “physicians, hospitals, and other health care providers from
drastically increasing insurance rates”).


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of Chapter 33 and the 2003 amendments thereto, the Texas Supreme Court noted “[t]he

Legislature seemed intent on creating a general scheme of proportionate responsibility for tort

claims, subject to specific statutory exclusions.” F.F.P. Operating Partners, L.P. v. Duenez, 237

S.W.3d 680, 692 (Tex. 2007). It is the history of Chapter 33, and the resulting framework that

makes apparent the inequity and potential for abuse inherent in refusing to afford the claimant

his statutory right to join designated responsible third parties regardless of limitations.

C.      History of Proportionate Responsibility

        In 1987, the Legislature replaced comparative negligence with comparative responsibility

thereby “replac[ing] the existing statutory and common law schemes.” JCW Elecs., Inc. v.

Garza, 257 S.W.3d 701, 703 (Tex. 2008). 3 In 1995, the 74th Legislature “amended Chapter 33

by replacing comparative responsibility with proportionate responsibility.” 4                   Id.   The 1995

amendments eliminated the list of specific theories of liability to apportion, “providing instead

that the chapter should apply ‘to any cause of action based on tort.’” Id. at 704. The statute

allowed the defendant to join any responsible third party in the litigation. With some exceptions,

joinder was not available if the action was barred by limitations, lack of personal jurisdiction, or

subject matter jurisdiction. Act of May 10, 1995, 74th Leg., R.S., ch. 136, § 1, secs. 33.004(d),

(e), 33.011(6)(A), 1995 Tex. Gen. Laws 971, 973 (amended 2003) (defining a responsible third

party, in part, as a person over whom the court could exercise jurisdiction).

        In 2003, Chapter 33’s proportionate responsibility framework was amended to

significantly liberalize the defendant’s ability to seek to shift or spread liability to others. See

Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.01–.12, 2003 Tex. Gen. Laws 847, 855–59


3
  Citing Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, §§ 2.03–.11B, 1987 Tex. Gen. Laws 37, 40–44, amended by
Act of May 10, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 971–75.
4
  Citing Act of May 10, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 971–75, amended by Act of
June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.01–.12, 2003 Tex. Gen. Laws 847, 855–59.


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(codified at TEX. CIV. PRAC. & REM. CODE ANN. § 33.002–.017 (Vernon 2008)). Under the

amended section 33.004, the defendant could merely designate a responsible third party rather

than join the responsible third party in the lawsuit as previously required. 5 Further, the definition

of a responsible third party was broadened to include “any person who is alleged to have caused

or contributed to causing in any way the harm for which recovery of damages is sought.” TEX.

CIV. PRAC. & REM. CODE ANN. § 33.011(6) (Vernon 2008). The 2003 amendments’ expanded

definition applies regardless of whether the court has jurisdiction over the person or whether he

could have been sued by the claimant. Id. § 33.011. Moreover, if the defendant properly

designates a responsible third party by filing a motion for leave, the court must grant leave if

there is no objection within fifteen days. Id. § 33.004(f). Even if there is an objection, the court

must grant the designation unless the defendant did not plead sufficient facts concerning the

alleged responsibility of the designated responsible third party. Id. § 33.004(g)(2). Finally, the

designation of a responsible third party may not be used in any other proceeding to impose

liability on the designee. Id. § 33.004(i)(2).

D.      Balancing Defendant’s Designations with Plaintiff’s Joinders

        As noted above, under the 2003 amendments, the defendant may designate responsible

third parties regardless of whether the limitations period would bar the claimant’s joinder of the

designee in the lawsuit. Along with the defendant’s right to designate time-barred responsible

third parties, the Legislature provided the claimant a reciprocal right:

          If a person is designated under this section as a responsible third party, a
        claimant is not barred by limitations from seeking to join that person, even though
        such joinder would otherwise be barred by limitations, if the claimant seeks to
        join that person not later than 60 days after that person is designated as a
        responsible third party.

5
  Compare TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a) (Vernon 2008) (permitting designation), with Act of
May 10, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.004(a), 1995 Tex. Gen. Laws 971, 972 (amended 2003)
(requiring the defendant to join the third party).


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                                                                                                  04-08-00379-CV


TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(e) (Vernon 2008). Balancing the defendant’s

ability to designate a time-barred party with the claimant’s ability to join a time-barred designee

in the lawsuit benefits both parties.           The defendant benefits from being able to designate

responsible third parties irrespective of any limitations bar. The claimant benefits because, with

a designee’s joinder not barred by limitations, the defendant may be more circumspect in

designating responsible third parties who may become co-defendants intent on reducing their

proportionate responsibility.        Likewise, aware of the potential for joinder, the designated

responsible third party may be more assertive in disclaiming responsibility than if joinder were

unavailable. 6

        Because the majority holds section 74.251’s “[n]otwithstanding any other law” provision

prevents the plaintiff from joining a designated responsible third party under section 33.004(e),

the statutory scheme becomes unbalanced. A plaintiff may be forced to expend considerable

time and expense to prevent the defendant from shifting liability to a designated responsible third

party from whom the plaintiff cannot recover. In a health care liability claim, the unchecked

ability of a defendant to designate a time-barred responsible third party may invite mischief. For

example, a defendant could wait until section 74.251’s limitations period runs to designate a

limitations-barred responsible third party and argue the designee is largely or solely liable for

plaintiff’s damage. The designee, knowing that she is not at financial risk, may have little

incentive to assiduously contest liability or shift her alleged responsibility to the named

defendant. See id. § 33.004(i). Presented with a passive designee and the defendant’s bold

assertions of blamelessness, the jury likely may apportion responsibility to the designee from

whom the plaintiff cannot recover.              Under this scenario, the proportionate responsibility


6
 There is no requirement under Chapter 33 to notify the responsible third party of its designation. TEX. CIV. PRAC.
& REM. CODE ANN. § 33.004 (Vernon 2008).


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framework becomes unbalanced and there is no check on the unbridled designation of

responsible third parties otherwise barred by limitations.

       The designation of responsible third parties within the proportionate responsibility

framework developed by the Legislature was balanced. The defendant was given more latitude

to designate time-barred responsible third parties and the claimant was given a counterbalancing

right to join the designees in the suit. The application of section 74.251 to remove the plaintiff’s

ability to join the designated responsible third party results in an imbalance in the framework.

There is no deterrent to designating as many time-barred responsible third parties as possible,

and no incentive for such designees to vigorously contest responsibility. In essence, the plaintiff

is left in the position of having to prove the liability of the party defendant while at the same time

defending the empty chair designees. The Legislature developed the proportionate responsibility

framework with checks and balances to preclude such an unfair result, but it may not have

considered the impact of section 74.251 which bars plaintiff’s statutory right to join a time-

barred responsible third party in a health care liability case. Unfortunately for proportionate

responsibility, without further clarification from the Legislature, there is no check and the

balance is gone.


                                                  Rebecca Simmons, Justice




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