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In one of the most fractious decisions of its term, the Texas Supreme Court has issued an opinion that lays down the procedure for defendants who do not settle to obtain settlement credits. The 4-2-3 decision shows a split on the court over the implications of its 1999 unanimous opinion in Drilex v. Flores, in which it ruled that a family of plaintiffs was a single claimant for the purpose of applying a settlement credit. The controversy in the court’s Feb. 28 opinion, Utts v. Short, et al., concerns a family of plaintiffs in a wrongful-death case in which one of the family members settled with one of the defendants. Plaintiff Dorothy Walker settled with HCA South Austin Medical Center for $200,000 after a relative, Clifton Short, died during surgery. The four remaining plaintiffs settled with the hospital for $10 each. Walker subsequently nonsuited Utts. Defendant Dr. Stephen James Utts and remaining plaintiffs went to trial. Utts filed a written election for a $200,000 dollar-for-dollar settlement credit under Chapter 33 of the Texas Civil Practice and Remedies Code. To prevent double recovery by plaintiffs, the statute permits the court to reduce a jury award recovered by a claimant if that claimant has settled with one or more defendants involved in the case. The plaintiffs objected to the settlement credit and prevailed in a jury trial, winning more than $400,000 in damages. The trial court rejected Utts’ settlement credit request because the defense did not introduce evidence about the settlement before the close of the jury trial, according to the opinion. On appeal the defendants argued that the $200,000 settlement credit should apply because Walker was a “claimant” and that under Drilex, a settlement that benefits one plaintiff benefits them all. The plaintiffs argued that the $10 settlement credit should apply because Walker was no longer a part of the suit. A plurality opinion written by Justice James Baker reversed Travis County Probate Court Judge Guy Herman by finding that “the trial court should resolve the [settlement credit] issue before it submits the case if the nonsettling defendant so requests.” Baker also found that once the defendant raised the issue of a settlement credit, the burden shifted to the plaintiffs to prove they did not benefit from the settlement. “In other words, once the nonsettling defendant presents evidence of the nonsettling plaintiffs’ benefit from a settlement, the trial court shall presume the settlement credit applies unless the nonsettling plaintiff can overcome this presumption,” Baker wrote in a section of the opinion joined by Chief Justice Tom Phillips and Justices Craig Enoch, Deborah Hankinson, Harriet O’Neill and Wallace Jefferson. The case was remanded to the trial court for further action. The justices split over whether to abide by Drilex, an opinion that tackled the issue of who qualified as a “claimant” in multiparty litigation as defined in � 33.011 of the Civil Practice and Remedies Code. In Utts, Baker said he believes Drilex was wrongly decided. “We not only misconstrued section 33.011(1), but we also read language into its second sentence. That is we determined that under the second sentence ‘the Legislature defined claimant to include both the party or parties seeking recovery of damages for injuries to that person,’ ” Baker wrote. “ Reading parties into section 33.011(1)’s second sentence which only refers to person — singular not plural — likewise led to our erroneous conclusion that a claimant in cases involving derivative claims includes the injured or deceased and the entire family. “ Drilex‘s troubling effect is that a settlement with any one derivative plaintiff can deprive all other possible derivative plaintiffs of their full recovery for their independent injuries when they did not receive any proceeds from the settlement,” Baker wrote. In a concurring opinion, Phillips wrote that it was unnecessary to overrule Drilex because the facts are distinguishable from Utts. “Because the term ‘claimant’ does not include a former plaintiff who has withdrawn from the lawsuit [as was the case with Walker], we need not revisit Drilex here,” Phillips wrote in an opinion joined by Jefferson. Yet Phillips invited the Legislature to revisit questions raised in Utts as to who qualifies for settlement credits. A dissenting opinion written by Justice Priscilla Owen accused four of the justices — in attempting to overrule Drilex — of not following the doctrine of stare decisis, which binds appellate courts to respect its prior rulings. “Justice Baker’s concurring opinion sweeps stare decisis aside in advocating that we overrule Drilex, decided less than three years ago,” Owen wrote in an opinion joined by Justices Nathan Hecht and Xavier Rodriguez. “Justice Baker’s opinion asserts that rewriting the statute is justified because judge-made law should be paramount over the Legislature’s directives.” However, Owen also agreed with Phillips that the Legislature should revisit the issue “to say with unmistakable clarity how settlement credits are to be applied in cases such as this.” PRACTICAL EFFECT Like the justices on the high court, the parties in Utts disagree over the practical effect of the ruling. “It’s a good day for Texans,” says Michael W. Shore, a partner in Dallas’ Shore Deary, who represented the remaining plaintiffs in Utts. “This makes it real clear that a wrongful-death action belongs to the individual, not a group.” But R. Brent Cooper, a partner in Dallas’ Cooper & Scully who represents Utts in the case, says Shore’s analysis of the opinion is incorrect. “He’s absolutely wrong, 100 percent wrong,” Cooper says, noting that the Drilex opinion is still in effect. “You’ve got five judges that say Drilex is still good law.” Four of the judges joined the majority opinion, while two concurred but dissented to the majority’s desire to overrule Drilex, while three dissented to the majority opinion. Shore expects the next move in the case will be a remand to Judge Herman’s court. Wade Crosnoe, an appellate lawyer and partner in Dallas’ Thompson Coe Cousins & Irons, says Utts is most interesting because of the issue it did not decide. “The bottom line is, the issue the court leaves open is whether to overturn Drilex,” Crosnoe says. “Can you consider all plaintiffs who are family members to be a single claimant under Chapter 33 so the settlement credit received by any of them applies to all of them?” Referring to the court’s inability to resolve Drilex, Crosnoe says, “These issues are really hard. And that’s what’s remarkable about this.”

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