Court of Appeals of Texas, Second District, Fort Worth
THE 342ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ.
SUDDERTH CHIEF JUSTICE
issue of first impression, which presents a legal scenario
unlikely to be repeated, we are asked to decide whether the
supreme court's opinion in Phillips v. Bramlett
(Phillips I), 288 S.W.3d 876 (Tex. 2009),
constitutes "a unicorn crossbow," i.e., an item
theoretically useful, but of no practical value,
a personal injury plaintiff when the defendant surgeon
surrenders his potential Stowers claim back to his
malpractice insurer after a jury verdict in the
plaintiff's favor exceeds the statutory cap on physician
liability under article 4590i of the revised civil
statutes. Bound by supreme court precedent, we
reverse the trial court's judgment, which dismissed
Appellants' claim for want of jurisdiction in favor of
Appellees Truck Health Insurance (Truck) and Team Health,
Inc. (Team), and remand this case to the trial court for
November 2001, Marcus Hernandez Jr. died from massive blood
loss following a liver biopsy. Almost two years later,
Appellants, Marcus's parents, filed a wrongful death
action against both Dr. Hitesh B. Yagnik, M.D. and the
hospital where their son died. See Yagnik v.
Hernandez, No. 02-11-00510-CV, 2013 WL 1668304, at *1
(Tex. App.-Fort Worth Apr. 18, 2013, pet. denied) (mem. op.).
The hospital settled prior to the first trial, which resulted
in a hung jury, and on retrial a different jury awarded $2,
679, 000 to Appellants, which- after the trial court applied
the statutory caps on medical negligence damages and
accounted for the hospital's settlement-resulted in a
judgment of $1, 818, 601.63 against Yagnik, from which he
appealed. Id. Yagnik then released Truck, one of his
insurance carriers, from any liability arising from its
failure to settle the underlying lawsuit in exchange for
Truck's agreement to post his supersedeas bond on appeal
and to pay the resulting judgment if the trial court's
judgment was affirmed on appeal.
affirmed the trial court's judgment in 2013. Id.
After the supreme court denied Yagnik's petition for
review and motion for rehearing, our mandate issued on May 5,
decade after they filed their original lawsuit, but less than
two years after we affirmed the trial court's judgment
and issued our mandate, Appellants sued Yagnik's
insurance carriers for the negligent failure to settle a
claim within the insurance policy limits-traditionally known
as a common law Stowers action-seeking to
collect the difference between the almost $2.7 million jury
verdict and the amount of the trial court's
filed a plea to the jurisdiction, arguing that Appellants
lacked standing to bring a direct action,  and Team filed a
motion for summary judgment on the same basis. In support of
their claim, Appellants expressly relied upon the supreme
court's Phillips I opinion, asserting that the
holding in Phillips I authorized them to bring their
Stowers claim as a direct action.
also argued in its motion that because Appellants'
Stowers claim was filed after article 4590i was
repealed and replaced by civil practice and remedies code
chapter 73 in 2003, there could be no Stowers
liability against the insurers beyond the amount of the
trial court dismissed Appellants' claims against Truck
and Team for lack of subject matter jurisdiction after
granting Truck's plea to the jurisdiction and granting in
part Team's summary judgment motion "to the extent
that the motion was based upon Plaintiffs' lack of
standing to pursue a direct statutory Stowers cause
of action against Team Health, Inc." In its order, the
trial court stated that in light of its ruling that it lacked
jurisdiction over the Stowers lawsuit due to
Appellants' lack of standing, it expressly made no ruling
on any of the other grounds for summary judgment in
issues, Appellants argue that the trial court erred by
concluding that they lacked standing because they have a
direct Stowers cause of action and because their
claims are not barred by settlement (under an equitable
subrogation theory) or capped by the 2003
Standards of Review
a trial court has subject matter jurisdiction is a question
of law that we review de novo. Tex. Bay Cherry Hill, L.P.
v. City of Fort Worth, 257 S.W.3d 379, 387 (Tex.
App.-Fort Worth 2008, no pet.) (citing Tex. Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004); Tex. Nat. Res. Conservation Comm'n v.
IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)). Standing is
implicit in the concept of subject matter jurisdiction, and
whether a party has standing to maintain suit is a question
of law. Everett v. TK-Taito, L.L.C., 178 S.W.3d 844,
850 (Tex. App.-Fort Worth 2005, no pet.) (citing Tex.
Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 443 (Tex. 1993)); see IT-Davy, 74 S.W.3d at
plaintiff has the burden to plead facts affirmatively showing
that the trial court has jurisdiction, and we construe those
pleadings liberally in favor of the pleader, look to the
pleader's intent, and accept as true the factual
allegations in the pleadings. Tex. Bay Cherry Hill,
L.P., 257 S.W.3d at 387. If a plea to the jurisdiction
challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised, as the trial court
is required to do, taking as true all evidence favorable to
the nonmovant and indulging every reasonable inference and
resolving any doubts in the nonmovant's favor.
Id. at 387-88 (citing Miranda, 133 S.W.3d
at 228; Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex.
2000)). If the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the
plea to the jurisdiction, and the fact question will be
resolved by the factfinder. Id. at 388 (citing
Miranda, 133 S.W.3d at 227-28; Bland, 34
S.W.3d at 555). If the relevant evidence is undisputed or
fails to raise a fact question on the jurisdictional issue,
however, the trial court rules on the plea to the
jurisdiction as a matter of law. Id. (citing
Miranda, 133 S.W.3d at 227-28; Bland, 34
S.W.3d at 555).
review a summary judgment de novo. See Travelers Ins. Co.
v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider
the evidence presented in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding evidence contrary
to the nonmovant unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable
inference and resolve any doubts in the nonmovant's
favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399
has frequently been iterated by this court and our supreme
court, we review issues of statutory construction de novo,
and in construing statutes, our primary objective is to give
effect to the legislature's intent, relying on the plain
meaning of the text unless a different meaning is supplied by
legislative definition or is apparent from the context or the
plain meaning leads to absurd results. Jack Cty.
Appraisal Dist. v. Jack Cty. Hosp. Dist., 484 S.W.3d
228, 231- 32 (Tex. App.-Fort Worth 2016, no pet.)
(referencing CHCA Woman's Hosp., L.P. v. Lidji,
403 S.W.3d 228, 231 (Tex. 2013), and Tex. Lottery
Comm'n v. First State Bank of DeQueen, 325 S.W.3d
628, 635 (Tex. 2010)). We read statutes as a whole and
interpret them to give effect to "every sentence,
clause, and word" so that no part thereof will be
rendered superfluous. Id. at 232 (quoting City
of San Antonio v. City of Boerne, 111 S.W.3d 22, 29
first review the pertinent statutes and cases, in addition to
the law on standing, for context for the parties'
arguments in the trial court and in their appellate briefs.
Article 4590i, section 11.02(c)
section 11.02(c) provided that the statutory cap on physician
and other healthcare provider liability would not limit the
liability of any insurer "where facts exist[ed] that
would enable a party to invoke the common law theory of
recovery commonly known in Texas as the 'Stowers
Doctrine.'" Act of May 30, 1977, 65th Leg., R.S., ch.
817, § 11.02(c), 1977 Tex. Gen. Laws 2039, 2052, 2064,
repealed by Act of June 1, 2003, 78th Leg., R.S.,
ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
Civil Practice & Remedies Code Section 74.303(d)
Stowers exception in section 11.02(c) was not
carried forward when article 4590i was repealed. Rather,
section 11.02(c) was replaced by civil practice and remedies
code section 74.303, which expressly provides that an insurer
can use the statutory physician's cap to limit
its liability. See Act of June 1, 2003, 78th Leg.,
R.S., ch. 204, § 10.01, sec. 74.303(d), 2003 Tex. Gen.
Laws 847, 874-75 (current version at Tex. Civ. Prac. &
Rem. Code Ann. § 74.303(d) (West 2017)). Section
74.303(d) states, "The liability of any insurer under
the common law theory of recovery commonly known in Texas as
the 'Stowers Doctrine' shall not exceed the liability
of the insured." Tex. Civ. Prac. & Rem. Code Ann.
2003 Enabling Statute
2003 enabling provision states that most of chapter 204's
effective date would be September 1, 2003,  and that it