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.