Case Number: 01-93-01142-CV 04/26/1995 Record returned to Court of Appeals 03/23/1995 Application for Writ of Error - Disposed proceeding denied 12/01/1994 Reply filed 11/18/1994 MET to file reply disposed of Granted 11/16/1994 Case forwarded to Court 10/31/1994 Application for Writ of Error - Filed OPINION
Robert Staples, Jr. and Mary Ann Brannon sued the State of Texas, the Texas Department of Public Safety, and its employee, John Gordon Leake ("the State") for injuries from an automobile accident. Brannon was a passenger in Staples' car; Leake was driving a vehicle in the course of his employment. The jury found that Staples was 90 percent responsible for the collision1 and that appellants were 10 percent responsible. No responsibility was found against Brannon. Brannon's damages totalled $59,600. The judgment awarded Brannon 100 percent of her damages against the State, despite the jury's finding that the State was only 10 percent responsible for causing the damages.
The question in this case is whether appellants have to pay 100 percent of Brannon's damages even though they were only 10 percent responsible for causing those damages. We hold that appellants do not have to do so. Therefore, we reform the judgment to state that Brannon collect only 10 percent of her damages from appellants. As so reformed, we affirm.
In their first point of error, appellants contend that the judgment against them should be for 10 percent of Brannon's damages rather than 100 percent. They rely on TEX.CIV.PRAC. REM.CODE ANN. § 33.013 (Vernon Supp. 1994), which provides:
*Page 432(a) Except as provided in Subsections (b) and (c), a liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant's percentage of responsibility with respect to the personal injury,
property damage, death, or other harm for which the damages are allowed.(b) Notwithstanding Subsection (a), each liable defendant is, in addition to his liability under Subsection (a), jointly and severally liable for the damages recoverable by the claimant under Section 33.012 with respect to a cause of action if:
(1) the percentage of responsibility attributed to the defendant is greater than 20 percent; and
(2) only for a negligence action pursuant to Section 33.001(a) or (c), the percentage of responsibility attributed to the defendant is greater than the percentage of responsibility attributed to the claimant.
(c) Notwithstanding Subsection (a), each liable defendant is, in addition to his liability under Subsection (a), jointly and severally liable for the damages recoverable by the claimant under Section 33.012 with respect to a cause of action if:
(1) no percentage of responsibility is attributed to the claimant and the percentage of responsibility attributed to the defendant is greater than 10 percent; . . .
Subsections (b) and (c) are exceptions to the general rule in subsection (a); they allow a defendant in specified circumstances to be liable for more damages than the percentage of responsibility found by the trier of fact.
Appellants argue that because the jury found their percentage of responsibility was 10 percent, they are liable under section (a) for only 10 percent of the damages. Further, they argue, since their responsibility did not exceed 10%, they cannot be liable under section (c) for any greater percentage of the total damages. We agree.
In C H Nationwide v. Thompson, 37 TEX.SUP.CT.J. 1059, 1063 n. 4, 1994 WL 278167 (June 22, 1994), the supreme court held that if a defendant's percentage of responsibility was not greater than 10 percent, the defendant "therefore falls below the lowest applicable statutory threshold for joint and several liability." The court relied, as we do, on TEX.CIV.PRAC. REM. CODE ANN. § 33.013(c)(1) (Vernon Supp. 1994). We conclude that the statute and the holding inC H Nationwide control this case.
The dissenting opinion declares that Brannon may recover "all" of her damages because her percentage of responsibility was zero. This statement is true, but it begs the question. The issue here is not whether Brannon may recover "all" of her damages. Certainly, she can — Brannon's damages may not be reduced under our comparative negligence statutes for the simple reason that she was not negligent. That does not mean, however, that she can recover "all" of her damages from any defendant, no matter what its level of responsibility may be. A defendant who caused only 10 percent of Brannon's damages does not have to pay "all" of Brannon's damages. Otherwise, Section 33.013(c) would be nullified.
The dissenting opinion discusses TEX.CIV.PRAC. REM. CODE ANN. § 33.016 (Vernon Supp. 1994), which defines the term "contribution defendant" and assesses liability among contribution defendants. We believe that section 33.016 does not affect this case. Section 33.016(a) defines "contribution defendant" as "any defendant, counter-defendant or third-party defendant from whom any party seeks contribution . . . but from whom the claimant seeks no relief at the time of submission." Here, there are no contribution defendants; no party sought contribution from any defendant, counter-defendant, or third-party defendant.
Finally, the dissenting opinion distinguishes the C HNationwide case because there was more than one defendant in that case. There is more than one defendant in this case. The judgment is rendered jointly and severally against John Gordon Leake, the State of Texas, and the Texas Department of Public Safety.2
We sustain point of error one.
Under point of error two, appellants argue that the trial court erred by assessing 100 percent of the court costs against them. TEX.R.CIV.P. 131 provides: "The successful *Page 433 party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided." Brannon was successful against appellants, but appellants were successful against Staples. Therefore, we reform the judgment to award 10 percent of the costs against appellants and 90 percent against Staples.
We sustain point of error two.
The judgment is reformed to award 10 percent of total damages and costs against appellants and 90 percent of the total costs against Staples. As so reformed, the judgment is affirmed.