In what appears to be a case of first impression, the Dallas Court of Appeals held that sections 33.012(a) and 41.0105 of the Civil Practice and Remedies Code should be harmonized by applying section 33.012(a)’s "damage" reduction before section 41.0105’s "recovery" limitation. In an opinion by Justice Moseley, the Court reasoned that because section 33.012(a) applies to the assessment of damages by the jury, and section 41.0105 applies to recovery of damages by the claimant, section 33.012(a) should be applied first. In addition to the distinction between damages and recovery, the Court relied on section 41.0105’s introductory phrase, "in addition to any other limitation under law" to support its holding that section 41.0105 gets applied last.
The order of application can have significant consequences. In this case, the jury found damages of $89,000, but found that the plaintiff was responsible for 50% of his damages. Plaintiff had actually incurred just over $45,000 in medical expenses. The trial court reduced the damages assessed by 50% resulting in damages of $44,500. Since this amount was less than the medical expenses actually incurred, section 41.0105 did not apply. Had the trial court applied section 41.0105 first, the damages would have been reduced to about $45,000, which would have been subject to further reduction by 50% under section 33.012(a). The result would have been a judgment for $22,500 instead of $44,500, or as the Court notes, a $22,000 difference. The Court’s opinion in Irving Holdings, Inc. v. Brown can be found at this link.