Opinion
NO. 01-16-00204-CV
06-13-2017
SUNBELT RENTALS, INC., Appellant v. JULIE ROGERS, INDIVIDUALLY AND AS NEXT FRIEND OF D.R., A MINOR, AND DOUG ROGERS, INDIVIDUALLY, Appellees
On Appeal from the 151st District Court Harris County, Texas
Trial Court Case No. 2013-65334
MEMORANDUM OPINION
In this personal injury case, appellant, Sunbelt Rentals, Inc., challenges the trial court's judgment rendered on the jury verdict in favor of appellees, Julie Rogers, individually and as next friend of D.R., her minor son, and Doug Rogers, individually, on their negligence claims. In three issues, Sunbelt contends that the trial court erred in (1) disregarding the jury's findings of parental responsibility; (2) refusing to recognize a pleading for contribution; and (3) refusing to offset the amount owed on its contribution claim. We affirm.
Background
Sunbelt is an equipment rental company that operates a rental center abutting the northbound frontage road to Interstate Highway 45. On October 22, 2013, Cody Fox, a Sunbelt commercial driver, returned a rental truck to the rental center at the end of his work day. Because the gate to the facility was closed, Fox parked his truck in the driveway causing its back end to extend into the right lane of the frontage road.
Julie Rogers was traveling in the right lane of the frontage road between FM 2920 and the Hardy Toll Road when her SUV struck the rear edge of the truck's flatbed. The flatbed sliced through the SUV and struck D.R. on the forehead, causing him to suffer an open skull fracture and severe brain injury.
On October 29, 2013, Julie filed suit on behalf of D.R. asserting negligence claims against Sunbelt and Fox. Doug Rogers later intervened in the suit. On July 28, 2015, Julie, individually and on behalf of D.R., filed a fifth amended petition against Sunbelt and Fox adding claims for respondeat superior liability and negligent entrustment against Sunbelt, and gross negligence claims against Sunbelt and Fox. On July 28, 2015, Sunbelt and Fox filed their joint second amended answer asserting a general denial and several affirmative defenses. Julie and D.R.'s fifth amended petition, Doug's amended petition in intervention, and Sunbelt and Fox's second amended answer were the live pleadings at the time of trial.
At the conclusion of trial, the jury answered the jury charge questions as follows:
Question 1
Did the negligence, if any, of those named below proximately cause the injury in question?
| 1 | Sunbelt Rentals, Inc. | Yes |
|---|---|---|
| 2 | Cody Fox | Yes |
| 3 | Julie Rogers | Yes |
Question 2
For each person you found caused or contributed to cause the injury, find the percentage of responsibility attributable to each.
| 1 | 55% | |
|---|---|---|
| 2 | Julie Rogers | 45% |
| Total | 100% |
Because Sunbelt accepted vicarious liability as to Fox, Sunbelt and Fox were combined for purposes of apportionment of fault.
The award consisted of $550,000.00 for past physical pain, mental anguish, and disfigurement, and $5,318,000.00 for future physical pain, mental anguish, disfigurement, and medical care expenses D.R. will incur after he reaches eighteen years.
On October 16, 2015, the Rogers filed a motion for entry of judgment and proposed judgment. Pursuant to Civil Practice and Remedies Code sections 33.012 and 33.013, they requested judgment in favor of D.R. for his cause of action in the amount of $5,868,000.00 (total damages award) and in favor of Julie and Doug for their causes of action in the amount of $489,587.45 ($890,159.00 reduced by Julie's 45% proportionate responsibility). Sunbelt and Fox filed a response objecting to entry of the proposed judgment on the grounds that (1) the proposed judgment was silent as to the basis for D.R.'s recovery of all awarded damages solely against Sunbelt in light of the jury's allocation of 45% fault for D.R.'s injuries to Julie; (2) the proposed judgment failed to include Sunbelt's pleaded claim for contribution and judgment against Julie in the amount of $2,640,600.00; and (3) the proposed judgment failed to account for the judgment Julie owed to Sunbelt in awarding parental recovery.
On October 26, 2015, the trial court held a hearing on the motion for entry of judgment. On December 4, 2015, the trial court entered a first amended final judgment against Sunbelt and Fox, awarding damages and prejudgment interest in the amount of $5,925,559.70 to D.R. and in the amount of $500,406.60 to Julie and Doug.
Following entry of judgment, and after Sunbelt filed its notice of appeal, Sunbelt and Fox settled D.R.'s claims and judgment against them. On April 11, 2016, the trial court held a minor settlement hearing at which the terms of the settlement agreement were read into the record. At the conclusion of the hearing, and upon the recommendation of D.R.'s guardian ad litem, the trial court approved the partial settlement. In the agreed partial release of final judgment signed June 24, 2016, the trial court ordered that "the total award to [D.R.] in the final judgment dated December 2, 2015 . . . is RELEASED" and that "[a]ll other portions of the final judgment remain in full force and effect."
Discussion
In its first issue, Sunbelt complains that although the jury determined that Sunbelt, Fox, and Julie proximately caused D.R.'s injuries and assigned percentages of fault, the judgment only reduced the damage elements representing parental recovery by the percentage of fault assigned to Julie, thereby requiring Sunbelt to pay the full amount of damages awarded to D.R. In its second issue, Sunbelt argues that despite the fact that it expressly pleaded for contribution, the judgment requires it to pay the entirety of the damages awarded to D.R. but omits any reference to the contribution claim. In its third issue, Sunbelt contends that although it expressly pleaded for the right to apply any amount owed under its contribution claim to any amount owed as recovery for parental tort claims in the event it was compelled to pay an amount greater than its assigned percentage of fault, the trial court refused to offset the amount owed under its contribution claim. Because Sunbelt's arguments hinge of the presumption that Julie owes it contribution for D.R.'s damages award, Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19 (Tex. 1987) and its progeny are dispositive of this appeal.
Analysis
In Beech Aircraft Corp. v Jinkins, Jinkins, a pilot, and Weiner, his passenger, were injured in the crash of Jinkins's private plane and sued Beech Aircraft, among others, alleging theories of negligence and products liability. See id. at 20. The defendants filed counterclaims against Jinkins alleging negligence. Id. The defendants subsequently settled Weiner's claims and obtained a release. Id. Although Weiner had not sued Jinkins, the settlement agreement also released Jinkins from liability to Weiner, and expressed the intent of several defendants, including Beech, to seek contribution from Jinkins. Id.
Jinkins moved for summary judgment on defendants' counterclaim for contribution, arguing that the settlement agreement which released Beech and several other defendants also extinguished their respective rights to contribution. Id. The trial court granted Jinkins's motion for summary judgment and severed the contribution claims so that the defendants could appeal. Id. This court affirmed the trial court's judgment. See id.
The Texas Supreme Court stated that "[t]he specific issue is whether a defendant, who settles a plaintiff's entire claim, may preserve a right to contribution from an alleged joint tortfeasor who does not participate in the settlement." Id. The Court then discussed the three then-existing contribution systems in Texas—two based on statute and one created at common law—and noted that the applicable contribution scheme was determined by the liability theories adjudged against the joint tortfeasors. See id.
These are Chapter 32 (the original contribution statute) and Chapter 33 (the comparative negligence statute) of the Civil Practice and Remedies Code. See TEX. CIV. & PRAC. REM. CODE ANN. §§ 32.001 & 33.001 (West 2014).
Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984) (common law contribution by comparative causation).
The Jinkins Court stated:
For example, if liability is established exclusively in negligence, the comparative negligence statute applies. If liability is established under products liability theory or if joint liabilities must be compared under mixed theories, the common law scheme controls contribution rights. Any remaining tort actions not covered by common law or the comparative negligence statute are the domain of the original contribution statute.Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19, 20 (Tex. 1987).
Although it had previously recognized a settling party's right to contribution under the original contribution statute, the Jinkins court concluded that those decisions did not compel recognition of contribution rights of a settling party under the comparative negligence statute. See id. at 20-21. It concluded that "[t]he legislature did not see fit to create a contribution right in favor of a settling party and we likewise decline to do so in comparative negligence cases." Id. at 21. It further stated:
In reaching its conclusion, the Court noted that other than their general subject matter, there was little similarity between the two contribution statutes and that additional differences existed in the context of settlements. See id. at 21.
We see no advantage in allowing defendants responsible for the plaintiff's injuries a right to, in effect, buy the plaintiff's claims and prosecute the other jointly responsible parties. It is not apparent that such settlements will result in any significant savings of time or resources. We can, however, envision that the settling defendant's unusual posture as surrogate plaintiff, co-defendant and cross-plaintiff will confuse a jury and possibly prejudice the remaining parties. We hold that a defendant can settle only his proportionate share of a common liability and cannot preserve contribution rights under either the common law or the comparative negligence statute by attempting to settle the plaintiff's entire claim.Id. at 22.
In is reply brief, Sunbelt attempts to distinguish Jinkins from the present case on the grounds that the Jinkins court "clarified that statutory schemes of contribution could not be applied absent a judgment on liability, common law contribution only applies up to the limit of a party's proportionate share of liability, and a defendant may not preserve contribution rights by obtaining assignment of the plaintiff's entire claim for later prosecution." Sunbelt concludes that "[n]one of these applications affect the current appeal." Sunbelt's argument is unavailing. Whether these conclusions affect the case before us has no bearing on the holding in Jinkins that a defendant who settles a plaintiff's entire claim may not preserve a right to contribution from an alleged joint tortfeasor who does not participate in the settlement.
Since Jinkins, this court and numerous other courts have recognized that "when a co-defendant settles with a plaintiff, the settlement extinguishes the settling defendant's right of contribution from a non[-]settling joint tortfeasor." Ins. Co. of N. Am. v. Sec. Ins. Co., 790 S.W.2d 407, 410 (Tex. App.—Houston [1st Dist.] 1990, no writ); see e.g., Filter Fab., Inc. v. Delauder, 2 S.W.3d 614, 617 (Tex. App.—Houston [14th Dist.] 1999, no pet.) ("Under Texas law, it is a well[-]established principle that a joint tortfeasor who settles a lawsuit is not entitled to contribution from other tortfeasors."); see Daneshjou Co. v. Goergen, No. 03-04-00730-CV, 2008 WL 3171256, at *10 (Tex. App.—Austin Aug. 8, 2008, pet. denied) (mem. op.) ("Because a party can settle only its proportionate share of responsibility, a settling party has no right to obtain contribution to the settlement from other alleged tortfeasors."); FG Holdings, Inc. v. London Am. Risk Specialists, Inc., No. 09-05-522-CV, 2007 WL 4341408, at *6 (Tex. App.—Beaumont Dec. 13, 2007, pet. denied) (mem. op.) ("In enacting Chapter 33 of the Texas Civil Practice and Remedies Code, (Texas's proportionate responsibility statute), the legislature did not create a contribution right in favor of a settling party against a joint-tortfeasor."); Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 888 (Tex. App.—Dallas 2007, no pet.) ("The settling party cannot preserve contribution rights by attempting to settle the entire claim."); Guerrero v. Ford Motor Co., No. 04-05-00342-CV, 2006 WL 1993767, at *3 (Tex. App.—San Antonio July 19, 2006, no pet.) (mem. op.) ("A settling tortfeasor is not entitled to contribution from a non-settling tortfeasor.") (citing Int'l Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex. 1988)); Brown v. KPMG Peat Marwick, 856 S.W.2d 742, 750 (Tex. App.—El Paso 1993, writ denied) ("[A] tortfeasor's settlement with the injured party will render his claim for contribution from a joint tortfeasor moot."); see also Perlstein v. Vuongo, Civ. Act. No. B-07-133, 2008 WL 3539769, at *5 (S.D. Tex. 2008) ("The Supreme Court of Texas has consistently held based on Chapter 33 of the Texas Civil Practice and Remedies Code that a settling person cannot pursue an action for contribution from a non-settling person or entity.") Moreover, this principle holds true whether the settlement occurs before or after trial and judgment establishing liability against the party seeking contribution. See Daneshjou Co., 2008 WL 3171256, at *9; Perlstein, 2008 WL 3539769, at *5.
Sunbelt also argues that the "other cases cited by appellees are likewise unavailing in the absence of an alignment of the procedural status of each case, terms and timing of settlement, causes of actions at issue, and applicable contributory negligence doctrines." In particular, Sunbelt argues that Daneshjou Co. v. Goergen is inapplicable because the court of appeals in that case applied Jinkins to a settlement post-trial where the other alleged tortfeasors had already settled their own potential liability with the injured party. See No. 03-04-00730-CV, 2008 WL 3171256, at *2 (Tex. App.—Austin Aug. 8, 2008, pet. denied) (mem. op.). It similarly argues that Perlstein v. Vuongo is inapplicable because the party from whom contribution was sought was not a party to the underlying case. See Civ. Act. No. B-07-133, 2008 WL 3539769, at *5 (S.D. Tex. 2008). We do not read Daneshjou or Perlstein to limit application of the Jinkins rule to the procedural contexts present in those cases.
Here, it is undisputed that Sunbelt settled all of D.R.'s claims, the trial court approved the settlement, and the judgment released the total damages award to D.R. Neither Julie nor Doug was a party to the settlement. The gravamen of Sunbelt's complaint is that the final judgment requires it to pay the full amount of damages awarded to D.R. on his claim despite the jury's allocation of 45% fault for D.R.'s injuries to Julie. By settling D.R.'s claims, Sunbelt lost its right to seek contribution from Julie or any other non-settling joint tortfeasor for any portion of the damages awarded to D.R. on his claim in accordance with the settlement agreement which it freely executed with D.R. See Jinkins, 739 S.W.2d at 22; Ins. Co. of N. Am., 790 S.W.2d at 410. Because we conclude that Sunbelt is not entitled to recover in contribution, we overrule Sunbelt's issues.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd.