Can Immune Parties Really Be Responsible?
An analysis of the current interpretation of the Texas Responsible Third Party statute and its vulnerability to constitutional challenge
By JUSTIN C. ROBERTS and RANDELL C. ROBERTS
From the St. Mary’s Law Journal, Volume 43 Number 3, May 2012
The Texas Responsible Third Party (RTP) statute was amended in 2003 to give defendants the opportunity to have the jury apportion responsibility for the plaintiff’s damages to persons who were not joined in the lawsuit. A defendant could achieve this result by designating a “responsible third party.” Plaintiffs could usually respond by joining the responsible third party as an additional defendant in the lawsuit. Under this scenario, all culpable parties were before the court, defending themselves, and accountable to the plaintiff for their percentage of responsibility. When the statute worked in this fashion, it achieved “a carefully constructed scheme balancing the interests of both defendants and claimants.” Moreover, the statute enhanced the original defendant’s prospects to pay only that percentage of the plaintiff’s damages for which he was found responsible.
Texas courts soon construed the RTP statute, however, to allow designation of essentially immune parties. These immune parties included employers, sovereign governmental bodies, foreign manufacturers beyond the jurisdiction of the court, and those protected by bankruptcy, statutes of repose, or healthcare liability limitations. For example, in Galbraith Engineering
Consultants, Inc. v. Pochucha, the Texas Supreme Court held that the plaintiffs could not join in their lawsuit an engineering firm, which was designated as a responsible third party, because the firm was protected by the statute of repose. Similarly, in Molinet v. Kimbrell, the Texas Supreme Court held that the plaintiff could not join doctors who were designated as responsible third parties because the doctors were protected by the statute of limitations for health care liability claims.
What was left of the 2003 statutory balance was repealed in 2011. For lawsuits filed after August 31, 2011, plaintiffs can no longer join designated responsible third parties after the statute of limitations has expired.
This Article suggests why the RTP statute may not actually authorize defendants to designate most immune non-parties as a responsible third party. To the extent this practice is authorized, this Article discusses the most likely constraints under the United States Constitution and the Texas Constitution on any resulting imbalance of responsibility.
So can immune parties really be responsible? The Texas Supreme Court in Galbraith Engineering observed that, while the RTP statute “initially equated responsibility with liability to the plaintiff or claimant, this is no longer the case.” This was arguably dicta, which stemmed from an unnecessary comparison of current and former statutory provisions, without any apparent attempt to first discern the answer solely from the text of the current statute. Nonetheless, this observation is consistent with the court’s recent conclusion that “[c]hapter 33 expresses the [l]egislature’s intent to hold defendants responsible for only their own conduct.”
Whether any imbalance in the proportionate responsibility framework impinges constitutional safeguards, or simply reflects the legislature’s considered judgment on matters of public policy, remains to be decided. The Texas Supreme Court’s opinion in Molinet did not address constitutional concerns, although the result allowed defendants to designate responsible third parties who were protected by the statute of limitations. In response to the “imbalanced” apportionment scheme decried by the dissent, the court may have foreshadowed the outcome of a constitutional challenge by stating that such imbalances “are matters to be addressed by the [l]egislature.”
While aggrieved plaintiffs may have legitimate constitutional concerns of their own, their most compelling constitutional challenge might be one made on behalf of a designated responsible third party who is deprived of its due process right to defend its reputation. Construing the RTP statute to not allow the designation of most immune non-parties would ensure that the statute survives most constitutional challenges.