concurring and dissenting.
I respectfully dissent to the majority’s opinion holding that prejudgment interest is precluded because it exceeds the statutory limits for damages allowed by the Tort Claims Act. Tex.Civ.Prac. & Rem.Code Ann. § 101.001, et seq. Because I agree that Mrs. Ramming is not entitled to a separate recovery for loss of household services and consortium, I address the issue of prejudgment interest only as it applies to Mr. Ramming’s award.
The trial court awarded Mr. Ramming $250,000.00 and also awarded him prejudgment interest in the amount of $64,521.46. The State argues the trial court erred by allowing prejudgment interest, because it resulted in awarding an amount of damages over and above the statutory limit set by the Texas Tort Claims Act. The State, during oral arguments, conceded that appellees would be entitled to prejudgment interest if the addition of the interest did not result in the total damages exceeding the statutory limit of $250,000.00.
Prejudgment interest is not damages. A court does not determine the amount of prejudgment interest until after the fact finder has ascertained the amount of damages. Furthermore, the Texas Supreme Court has recognized a difference between prejudgment interest as damages and prejudgment interest as interest.
[Appellant] had no statutory right to prejudgment interest, but rather sought such interest as an element of damages under common law.... Because the jury found damages in excess of $100,000, the liability limitation of the [Tort Claims] Act precludes the award of prejudgment interest as damages here.
Weller v. State, 682 S.W.2d 234 (Tex.1984) (emphasis added). When the Supreme Court issued its opinion in Weller, there was no statute providing for prejudgment interest. This is no longer the case; prejudgment interest is now a statutory right. “Judgments in wrongful death, personal injury, and property damage cases must include prejudgment interest.” Tex.Rev.Civ.Stat.Ann. art. 5069-1.05, § 6(a).
The Legislature wrote art. 5069-1.05 after the Tort Claims Act and did not exclude the Tort Claims Act from prejudgment interest statute. I believe the Legislature intended the prejudgment interest statute, Art. 5069-1.05, to apply to judgments awarded under the Tort Claims Act.
Article 5069-1.05 applies certain restrictions to prejudgment interest. If a settlement offer is greater than the amount of judgment, or if the settlement offer is less than the amount of judgment, the act limits the accrual of the prejudgment interest. Id. at § 6(b), (c). The act requires that settlement offers be in writing to toll the running of the prejudgment interest. Id. at § 6(e). Obviously, the prejudgment interest sections of article 5069-1.05 were written to promote the settlement of lawsuits.
Texas courts have long held that public policy favors the settlement of lawsuits. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4 (Tex.1986). This policy is equally important in cases involving the State and its citizens. Because the Tort Claims Act limits damages, absent prejudgment interest, the State has no motivation to settle a claim. Neither the Stowers Doctrine nor bad faith *471can be used to nudge the State toward settlement and the more serious a claimant’s damages are, the less motivation the government has to settle the case. For example, Mr. Hamming’s medical bills alone exceeded $250,000.00. Under the damage limitation of the Tort Claims Act, the maximum the State will be required to pay is $250,000.00; therefore, the State has no incentive to settle the ease.
Prejudgment interest should be treated the same as postjudgment interest. Post-judgment interest is not considered an element of damages. Univ. of Tex. Med. Branch v. York, 808 S.W.2d 106, 112 (Tex.App.—Houston [1st Dist.] 1991, writ granted). Because postjudgment interest is not an element of damages, the statutory cap for damages under the Tort Claims Act is not affected by an award of postjudgment interest. Id. at 112. This same rationale applies to the statutorily authorized prejudgment interest. I would hold that Mr. Ramming is entitled to prejudgment interest.
In addition, although I concur that this is not a premises liability case, I write separately to clarify one aspect of the issue I consider important for future reference. Even if this were a premises liability case, failure to submit the State’s requested question would be harmless error. The State’s proposed question was identical to the question submitted with the exception of four instructions. The proposed instructions detailed the State’s negligence.
The first instruction, “a,” asked if the condition of the highway posed an unreasonable risk of harm to a motor vehicle operator exercising ordinary care. The jury, by finding that the State was negligent and that the State’s negligence was the proximate cause of the collision, found that the roadway posed an unreasonable risk of harm to a motor vehicle operator exercising ordinary care. The jury, by finding that Mr. Ramming was not negligent, found that Mr. Ramming exercised ordinary care.
Instruction “b” asked if the State had actual knowledge of the condition of the roadway. The parties do not dispute that the State had actual knowledge. The State created the condition and had knowledge of the condition at the moment it was created. Because this was not a disputed issue, a separate instruction was not needed.
Instruction “c” concerned Mr. Hamming’s actual knowledge of the condition of the roadway; a contributory negligence instruction. Even though contributory negligence has been abolished in other types of cases, it still remains viable in premises liability cases. Farley v. MM Cattle Company, 529 S.W.2d 751 (Tex.1975). The jury, however, found Mr. Ramming not negligent.
Instruction “d” concerned the State’s failure to adequately warn Mr. Ramming of the condition of the roadway and the State’s failure to make the condition safe, within a reasonable time after notice of the condition. The State’s failure to warn is an act of negligence and was included in the broad form question submitted to the jury. The State’s failure to make the condition safe within a reasonable time after notice does not apply because by creating the condition, the State had notice of the condition.
The jury inherently answered the State’s requested four instructions by finding the State negligent and the Rammings not negligent. Under the facts of this ease, the State’s proposed four instructions were answered by the jury in the broad form negligence question that was submitted, and failure to submit the four instructions was harmless error.