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Trial lawyers and tort reformers often are on opposite sides when the Texas Legislature considers making changes in the state’s civil justice laws, but they’ve found a bill on which they can agree in the 2001 session. That’s because both sides agree that a mistake was made when lawmakers passed major tort reform legislation in 1995. A provision in the Civil Practice and Remedies Code appears to cap punitive damages in wrongful death actions brought against employers by the families of workers who die from injuries suffered on the job, although the Texas Constitution says limitations can’t be applied in those circumstances. The provision has blocked plaintiffs from collecting damages in some cases. “We didn’t intend to cut them off from that,” says Shannon Ratliff, a partner in Akin, Gump, Strauss, Hauer & Feld in Austin and the lobbyist for the Texas Civil Justice League. “It was clear that was never intended,” agrees Austin solo Richard Hile, a representative of the Texas Trial Lawyers Association. H.B. 2537 by Democratic state Rep. Craig Eiland, a Galveston solo, is designed to “clarify” the law. Eiland says the law previously excluded workers’ comp wrongful death cases brought under the constitution from the punitive damages cap. “In 1995, a mistake was made and that exclusion was not carried forward,” he says. Under state law, a worker who suffers a work-related injury cannot sue his employer if the business carries workers’ compensation insurance. Eiland says the state constitution gives the family of an injured worker the right to file an action if the individual dies. While the worker’s heirs cannot collect actual damages, they can be awarded punitive damages if the jury finds the employer was grossly negligent for the death. Applying caps to the award is “nonsensical” in such situations, Eiland says. Under the 1995 law, a punitive damage award is calculated by multiplying two times the amount of economic damages plus an amount equal to any non-economic damages found by the jury, not to exceed $750,000. When no actual damages are awarded, there are no elements or issues for calculating the punitive damages, Eiland says. OPPOSITION ARISES Richard Evans, with the Texas Association of Business and Chambers of Commerce, says actual damages still can be calculated in such cases to provide the necessary benchmark for applying the caps on punitive damages, but the awards would be lower. TABCC opposes the bill, Evans says. The change in the law has had plaintiff’s lawyers scrambling to protect their clients’ constitutional right to seek punitive damages for a wrongful death on the job when the employer has workers’ compensation coverage. Ed Hohn, a partner in Daingerfield’s Nix, Patterson & Roach, faced the caps issue in Angela Winn v. Panola-Harrison Electric Cooperative Inc. Hohn represented the family of Kevin Winn, a Panola-Harrison lineman who was fatally injured when he was struck in the back by a line and block and tackle. At the time of the accident, Winn was hanging line along a highway south of Marshall without a flagman or spotters, Hohn alleges. Panola-Harrison filed a motion for partial summary judgment, seeking a finding that Texas’ punitive damages caps were applicable in a wrongful death case brought against a workers’ compensation subscriber. U.S. District Judge David Folsom of Texarkana, in a November 1998 ruling, held that the limitations applied to Winn. In the opinion, Folsom noted that the Legislature twice altered the capping provision in the Civil Practice and Remedies Code in 1995 and codified its actions two years later. Hohn says the case later settled for a confidential amount but that the situation “is a perfect example of how far the insurance industry and tort reformers have gone to abrogate rights.” The family of an individual killed in a work-related accident has a constitutional right to seek punitive damages, he says. Rep. Rob Junell, D-San Angelo, said in an affidavit filed in Winn that a conscious decision was made in 1995 to include the cap on causes of action brought under the Labor Code for punitive damages upon the death of an employee covered by workers’ compensation. But Junell and Sen. David Sibley, R-Waco, the chief sponsors of the 1995 bill, filed affidavits in June 2000 stating that they had not intended to change the practice relating to wrongful death actions against employers covered by workers’ compensation laws and the constitutional provision allowing punitive damages. Junell, a lawyer, says he believes the caps were meant to apply in workers’ comp wrongful death claims unless there is a constitutional prohibition. “Somebody could say this is covered by the constitution, and they may have an argument from that standpoint,” he says. Notes Hohn, “The constitution applies. It’s a gross negligence standard and you can’t cap it unless you amend the constitution.” The House Civil Practices Committee endorsed Eiland’s bill on March 21.

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