CPRC 33.004(e) not applicable to vicariously liable defendants

Posted on April 2, 2010 by Byron Henry

The Houston (First) Court of Appeals recently held that section 33.004(e) of the Texas Civil Practice and Remedies Code does revive claims against defendants whose liability is solely vicarious.

Section 33.004(e) allows plaintiffs to join as defendants those designated as responsible third parties notwithstanding the applicable statute of limitations.  Plaintiffs in this case filed suit against Wells Fargo well after limitations had apparently expired.  Plaintiff then moved to join one of Wells Fargo's employees as a responsible third party.  After the court granted the motion, Plaintiff then joined the employee as a defendant.  Both Wells fargo and the employee sought summary judgment based on limitations and argued (1) that public policy barred the use of section 33.004(e) to circumvent limitations, (2) section 33.004(e) cannot revive claims on which the statute had run prior to enactment of Chapter 33, and (3) section 33.004(e) does not revive claims against parties who are only vicariously liable.

The court of appeals rejected the defendants' first argument as "without merit."  The court, however, agreed with the defendants that Chapter 33 cannot revive claims on which limitations had already expired prior to its passage.  Finally, the court held that a party that is only vicariously liable does not fit the definition of responsible third party in Chapter 33.  After reciting  the definition of responsible third party found in section 33.011(6), the court stated:

A party that is liable based purely on respondeat superior does not fit this definition.  The definition further underscores that section 33.004(e) should not be used to hold a party liable when no allegations have been made that the party caused or contributed to the claimant's damages.

The take home here is that employers whose liability is only vicarious cannot be designated "responsible third parties" under Chapter 33.  As a result, the court of appeals concluded that the plaintiffs' time-barred claims against Wells Fargo based on respondeat superior were not revived by section 33.004(e).  The court's opinion in Villareal v. Wells Fargo Brokerage Servs., LLC can be found at this link.

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Responsible Third Parties and Statutes of Repose

Posted on June 28, 2009 by Mike Northrup

A few weeks ago I wrote about an opinion issued by the Fort Worth Court of Appeals, wherein that court held that Civil Practice and Remedies Code Section 33.004(e) applied to a statute of repose to revive the claims against a responsible third party.  Click here for that discussion.  I questioned whether Section 33.004(e)'s reference to statutes of limitation should be construed to include statutes of repose.  Last Friday, the Texas Supreme Court confirmed that Section 33.004(e) does not  apply to statutes of repose.

In Galbraith Engineering Consultants, Inc. v. Pochucha, Sam and Jean Pochucha bought a house in April 2003, that had been built 8 years earlier by builder Bill Cox.   After the house showed water damage following moderate to heavy rainfall, the Pochuchas sued Cox.  Cox in turn filed a motion for leave to designate Galbraith Engineering Consultants as a responsible third party.  The Ponchuchas joined Galbraith as a defendant within sixty days pursuant to Chapter 33.  Galbraith moved for summary judgment and asserted the applicable statute of repose because the Ponchuchas joined it as a defendant more than ten years after completion of the house.  The trial court granted the motion for summary judgment, but the San Antonio Court of Appeals reversed holding that Section 33.004(e) applies to both statutes of limitation and repose.

The Texas Supreme Court reversed the and affirmed the summary judgment.  Construing Section 33.004(e), the court held that the term "limitations" should be construed narrowly to include only statutes of limitation rather than both statutes of limitation and statutes of repose.  The supreme court's opinion may be found at this link.

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Responsible Third Party Statute and Statutes of Repose

Posted on March 26, 2009 by Mike Northrup

I've wanted to write something about Boenig v. Starnair, Inc. since I first read it because I believe the analysis is incorrect. 

This case involves the intersection of the responsible third party statute and a statute of repose.

Boenig sued contractor Pulte in November 2005 for injuries she allegedly sustained when she fell through the attic floor of a home Pulte built.  On July 19, 2007, Pulte filed a motion for leave to designate Starnair as a responsible third party.  Starnair was a subcontractor that performed the heating, ventilation, and air conditioning installation in the home.  On August 23, 2007, Boenig filed her fourth amended petition in which she joined Starnair as a defendant.

Starnair moved for summary judgment in reliance upon the ten-year statute of repose set out in Civil Practice and Remedies Code Section 16.009.  The trial court granted the motion and Boenig appealed.

Boenig argued on appeal that the responsible third party statute, Section 33.004(e) is an exception to the statute of limitations bar.   Starnair argued that Section 33.004(e)'s reference to limitations should not be expanded to include statutes of repose.  Using rules of statutory construction, the Fort Worth Court of Appeals reasoned that because the statute of repose was contained in the limitations chapter of the civil practice and remedies code it should be treated as a statute of limitation.  Using negative induction, the court further reasoned that because there is nothing in Section 33.004(e) to indicate that it is not applicable to the statute of repose, the court concluded that it must be applicable.  The court reversed the summary judgment.  For a more detailed reading of the court's analysis, click on this link.

What stuck out when I read the court's analysis is that it doesn't square with the Texas Supreme Court's characterization of statutes of repose nor does it square with the history behind how the statutes of repose came to be where they are codified today.  In Johnson v. City of Fort Worth, 774 S.W.2d 653 (Tex. 1989), the Texas Supreme Court recites the history of the placement of the statutes of repose and points out that West Publishing Company put them where they are located today, not the legislature.  Accordingly, the Johnson Court indicates that the courts should not read anything into the legislature's intent because of the location of those statutes.  Id. at 655 ("[It cannot have the force of law.").  In addition, the Johnson Court states its view that a statute of limitation is a "category of repose statute," Id. at 654, but the reverse is not necessarily true.  Accordingly, the legislature's decision to use the term "limitation" in Section 33.004(e) is not an expression of intent to include statutes of repose in the broader sense of the term and would not include Section 16.009.
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