Stephen James Utts, M.D., Petitioner

Dennie Short, individually, and as executor of The Estate of Clifton Short, deceased, Norma L. Short, Patricia Ann Cain, and Sam Short, Respondents

Justice Hankinson, joined by Justice Enoch, Justice Baker, and Justice O'Neill, concurring.

I concur in the Court's judgment, and in parts I and IIB of Justice Gonzales' opinion. I cannot join part IIA of his opinion, in which he purports to distinguish this case from Drilex Systems, Inc. v. Flores, 1 S.W.3d 112 (Tex. 1999). In my view, Drilex misstates the law, and the Court should take the opportunity presented by this case to remedy the error. While Justice Gonzales attempts to limit the holding in Drilex, the more prudent course would be to overrule the relevant part of Drilex before further injustice is done. For the reasons explained by the court of appeals in this case, I would hold that although Walker was a claimant under Texas Civil Practice and Remedies Code § 33.011(1), Dr. Utts may not receive credit for her settlement with HCA against any other claimant's recovery.

We must begin with the plain language of the proportionate-responsibility scheme established by the Legislature in Chapter 33 of the Civil Practice and Remedies Code. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). Under section 33.012(b), if a "claimant" has settled with someone, any recovery by that claimant in court must be reduced by the amount of that claimant's settlement or by a certain percentage of damages. Tex. Civ. Prac. & Rem. Code § 33.012(b)(1), (2). In section 33.011(1), the Legislature defined "claimant" generally as "a party seeking recovery of damages" under the proportionate-responsibility statute. When, however, someone sues because he or she has suffered a loss caused by injury to another person, "'claimant' includes both that other person and the party seeking recovery of damages . . . ." In the wrongful-death context, for example, that means that "claimant" includes both the decedent and the individual wrongful-death beneficiary who seeks recovery for the loss. The effect of including both the beneficiary and the decedent in the definition of "claimant" is that the beneficiary's recovery on derivative claims is reduced by the decedent's proportionate responsibility. Tex. Civ. Prac. & Rem. Code §§ 33.012(a), (b)(1).

This scheme makes sense anytime one person's claim is derivative of an injury to another person. The derivative plaintiff's action succeeds or fails with the fortunes of the deceased or injured person's action. See Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990). Nonetheless, the derivative plaintiff's claim is still an independent claim for that particular plaintiff's own independent loss. See Whittlesey v. Miller, 572 S.W.2d 665, 667 (Tex. 1978). Thus, I see no basis in the statute for permitting Dr. Utts to receive credit for Walker's settlement against the individual claims of the other wrongful-death beneficiaries. As the court of appeals explained, "There is nothing in [section 33.012(b)] to suggest that all wrongful death beneficiaries are to be treated as one claimant so that any settlement by any single beneficiary against any single liable party will be credited against the recovery of all other beneficiaries against all other liable parties. If the legislature intended this result, it could have stated that intent through the language of the statute." 987 S.W.2d 626, 630.

Justice Gonzales appears to view the question as one of timing, that is, whether a particular plaintiff is still in the lawsuit when the case is submitted to the factfinder determines whether that plaintiff's settlement may be credited against damages recovered. But he does not make clear whether Walker's settlement with HCA would be credited not just against her recovery, but also against that of the other wrongful-death beneficiaries if Walker had continued to pursue her claims against Dr. Utts and therefore remained in the lawsuit. Crediting her settlement against the recovery of the other beneficiaries is the result that Drilex dictates, and why I suggest we must overrule part of Drilex.

While we purported to follow the plain language of section 33.011(1) in Drilex, I am convinced we misread the statute, and how it should apply to multiple plaintiffs. In Drilex we insisted that the entire Flores family constituted but one claimant under section 33.011(1), and therefore "the total of all damages to be recovered by the family must be reduced by the total of all settlements received by the family." 1 S.W.3d at 122. Perhaps if the entire family received one lump-sum settlement that would be correct, but treating the entire family as one claimant when four of the five family members received individual settlements for their distinct losses defeats the fairness and reasonableness of the Legislature's proportionate-responsibility scheme, and does not comport with the plain language of section 33.011(1). As noted above, plaintiffs asserting derivative claims are asserting separate and distinct claims for their own losses, tangible and intangible, caused by the injury to another person. And no language in chapter 33 suggests that the Legislature intended to group all derivative plaintiffs together as one claimant so that some derivative plaintiffs lose their individual claims if other plaintiffs settle; rather, under the plain language of section 33.011(1), "claimant" includes only one derivative plaintiff together with the injured person. The troubling effect of Drilex is that any settlement with any one derivative plaintiff, for example, one wrongful-death beneficiary, is in effect a settlement with all possible derivative plaintiffs or wrongful-death beneficiaries. I simply see no way to read section 33.011(1) to permit one wrongful-death beneficiary to cut off or settle another beneficiary's right to his or her full measure of recovery.

We cannot credibly adhere to Drilex's holding that the statute "plainly" says what it does not say. We, not the Legislature, have made the application of the proportionate-responsibility statute unfair to individual plaintiffs who have had the misfortune of losing a loved one. Our opinion in Drilex is only slightly more than a year old, and the Legislature has not met since the opinion issued. Therefore, we are confronted with neither the fact that the public has become accustomed to living under our interpretation of the statute, nor with the presumption that the Legislature has acquiesced in that interpretation.

Thus, I would overrule that part of Drilex treating the family members as all one claimant for purposes of the settlement credit. I would hold that Walker was a claimant under section 33.011(1), and that Dr. Utts was not entitled to receive credit for her settlement against any other claimant's recovery. Accordingly, I concur in the Court's judgment.

Deborah G. Hankinson

Justice

OPINION DELIVERED: December 7, 2000