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In re Vector Contracting, Inc.

Court of Appeals of Texas, Ninth District, Beaumont

October 31, 2019

IN RE VECTOR CONTRACTING, INC.

          Submitted on October 3, 2019

          Original Proceeding 60th District Court of Jefferson County, Texas Trial Cause No. B-203, 616

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          PER CURIAM

         Relator Vector Contracting, Inc. ("Vector" or "Relator") filed a petition for writ of mandamus, in which it argues that the trial court erred in refusing to allow it to designate a responsible third party. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004. For the reasons explained herein, we conditionally grant Vector's petition for writ of mandamus.

         BACKGROUND

         Vector is the named defendant in a wrongful death lawsuit filed by Timothy Dwayne Schneider, individually and o/b/o The Estate of Clarissa Deanna Schneider, Deceased, and Karri Scott, James White, and Margaret White ("the Schneiders"). The lawsuit arises from an automobile accident that occurred when a vehicle driven by Jairo Avila collided with a vehicle driven by Clarissa Schneider. According to the petition, Clarissa Schneider was killed in the accident and her husband Timothy Dwayne Schneider, who was riding in the back seat, was injured in the accident. The Schneiders sued Vector alleging that Avila was acting in the course and scope of his employment with Vector at the time of the accident, Avila was negligent and disregarded a stop sign, Vector is vicariously liable for the negligence of Avila, and Vector is liable for its own negligence in "its background check, training and supervision of Avila and in retaining him as an employee when they knew, or should have known, he had a propensity to drive recklessly."

         According to Vector, Avila's personal insurance company has settled the case on behalf of Avila with the Schneiders, and Vector timely filed a motion for leave to designate Avila as a responsible third party. The Schneiders did not file an objection to Vector's motion to designate Avila as a responsible third party. The trial court denied Vector's motion and ruled that Avila's percentage of fault would be submitted to the jury as a settling party. In its Petition for Mandamus, Vector asserts that because the language of section 33.004 of the Texas Civil Practice and Remedies Code is mandatory and the Schneiders did not file an objection, the trial judge abused his discretion by denying Vector's motion for leave to designate Avila as a responsible third party. Vector contends that section 33.004 of the Texas Civil Practice and Remedies Code imposes a mandatory duty on the trial court to grant a timely request to designate a responsible third party when another party does not file an objection. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004. Vector argues that simply because Avila may also be a settling party under section 33.003 of the Texas Civil Practice and Remedies Code does not render section 33.004 superfluous. See Tex. Civ. Prac. & Rem. Code Ann. §§ 33.003, 33.004.

         In response to Vector's Petition for Mandamus, Schneider argues that the question of whether Avila is called a "settling person" or "responsible third party[]" "is a distinction without a difference[.]" According to Schneider, the Legislature provided two mechanisms for submitting a non-party's responsibility to the trier of fact: sections 33.003 and 33.004 of the Texas Civil Practice and Remedies Code. Specifically, Schneider contends that while section 33.003 requires the trial court to submit a settling person's responsibility to the jury, section 33.004 governs responsible third parties and it "allows a designation that can later be stricken if there is insufficient evidence to establish liability and does not create a mandatory submission of responsibility to the jury." According to Schneider, once a person has been determined to be a settling person, "any further efforts to force or prevent submission of the settled person to the jury are moot." Schneider characterizes this proceeding as "solely a dispute about nomenclature" and notes that the issue of Avila's proportionate responsibility will be submitted to the jury because Avila is a settling party. Schneider also argues that Vector has failed to show that it lacks an adequate remedy on appeal.

         Vector argued in its Petition for Mandamus that Avila was not acting in the course and scope of his employment at the time of the accident, and Vector argues that the facts in the underlying suit will establish that Vector has no vicarious liability for the negligence, if any, of Avila. Vector contends that the Schneiders "apparently believe a designation of Mr. Avila as a responsible third party may have some bearing at trial or on appeal after a trial on the determination of potential vicarious liability for Relator[]" and therefore "it is necessary for Relator to obtain a designation of Mr. Avila as a responsible third party under § 33.004."[1]

         ANALYSIS

         To prevail on its petition for writ of mandamus, Vector must demonstrate that the trial court clearly abused its discretion and that it has no adequate appellate remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The trial court abuses its discretion if it fails to analyze or apply the law correctly. In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding). A trial court abuses its discretion when its ruling is "'so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam) (quoting CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig. proceeding)).

         We find In re Coppola, 535 S.W.3d 506 (Tex. 2017) (orig. proceeding) (per curiam) to be instructive. In re Coppola was a mandamus case concerning a trial court's denial of the defendant's attempt to designate a responsible third party. Id. at 507. Therein, the Supreme Court concluded the trial court abused its discretion in denying the motion and it also held the defendant lacked an adequate remedy by appeal. Id. at 508, 510. The Supreme Court stated that "[a]llowing a case to proceed to trial despite erroneous denial of a responsible-third-party designation 'would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of [the relator's] defense in ways unlikely to be apparent in the appellate record.'" Id. at 509 (second alteration in original) (quoting In re CVR Energy, Inc., 500 S.W.3d 67, 81-82 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding) (op. on reh'g). The Court held that "ordinarily, a relator need only establish a trial court's abuse of discretion to demonstrate entitlement to mandamus relief with regard to a trial court's denial of a timely-filed section 33.004(a) motion." Id. at 510; see also In re Dawson, 550 S.W.3d 625, 630-31 (Tex. 2018) (orig. proceeding).

         Section 33.003 of the Texas Civil Practice and Remedies Code provides that the trier of fact shall determine the percentage of responsibility for each claimant, each defendant, each settling person, and each responsible third party who has been designated under section 33.004. Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a). A "settling person" is defined as "a person who has, at any time, paid or promised to pay money or anything of monetary value to a claimant in consideration of potential liability with respect to the personal injury . . . or ...


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