Texas is drawing closer to approval of one of two pieces of tort reform legislation sought by the state’s trucking industry, while the goals of the second proposal may have been achieved through a favorable court ruling. 

Both the state’s House and Senate have approved HB 19 and its Senate companion. The bills approved by each of the chambers are slightly different and will need reconciliation, according to John Esparza, the president of the Texas Trucking Association, which has spearheaded the drive. 

HR 19 deals with an issue that may seem relatively minor on the surface in a quest to reduce the size of enormous damage awards handed down against the trucking industry. But Esparza made clear that its provisions were considered one of the key targets of the legislative session.

At the heart of HR 19 is the issue of bifurcation. The new law would delineate more clearly what can be discussed in the first part of a trial and what the focus of the second part would be.

What that means in practice, Esparza said, is that phase 1 would need to focus only on the incident itself and any damages suffered by the plaintiff who brought the suit. “What we’re trying to fix is the practice where the trial lawyers would jam all the evidence in the first part of the trial,” Esparza said. 

That evidence could include past incidents that involved the driver, in order to raise questions about the driver’s competence and safety record, as well as questions about the driver’s training and possible negligence on the part of the trucking company. “A couple of weeks ago we had a member in eight hours of deposition and there wasn’t a single question about the accident,” he said. “It was all about the history.”

In the first part of the bifurcated trial, if the judge or jury finds negligence on the part of the driver and assesses compensatory damages, the trial can go to phase 2. It is in that phase that such things as the history of the driver can be brought into discussions to determine “exemplary damages,” another term for punitive damages.

That history is specifically barred from phase 1, according to the wording of HB 19: “A defendant’s failure to comply with a regulation or standard is not admissible into evidence and will not support a judgment for liability or damages” unless several criteria can be established, according to the wording of the legislation. Specifically, the failure to follow a rule or regulation must be shown to have been a “proximate cause” for the incident at the center of the lawsuit. 

If that can be established, then the plaintiff can look into a driver’s past, according to the legislation. However, Esparza said one of the key differences between the Senate and House bills involves just how far in the past a driver’s violation can be and still be part of the case.

“This doesn’t prevent the lawyers from looking at the history,” Esparza said. “But it segregates it so we will try the facts first.”

In a fact sheet distributed to members of the Senate, the TTA said this of the bifurcation issue: “In all commercial vehicle lawsuits, the negligence of the driver, the negligence of the employer in maintaining the vehicle, and compensatory damages are determined in the first phase of trial. In some cases, the employer’s negligent entrustment of the vehicle to the driver is also determined in the first phase. Liability for and the amount of exemplary damages for all causes of action is determined in the second phase of trial.”

The most vocal voice against the legislation has been Thomas Henry, a personal injury attorney in San Antonio. In a statement about the bifurcation sought in HB 19, Henry said back in March that “victims would be forced to take legal action against truck drivers first, before they can hold trucking companies responsible for their failure to safeguard the public from big rig accidents.”

He added that the legislation “would prevent an accident victim’s attorney from presenting discovery evidence into a trial that would incriminate the driver’s employer, the trucking companies who hire and oversee them. “  

The second bill that the TTA had set as a legislative priority was one that could be seen as setting a path toward more tightly defining reasonable medical expenses. 

The legislation, SB 207, and a companion bill in the House have not proceeded as far as HB 19. 

But Esparza said a recent case involving a dispute between a woman injured in an automobile accident and her insurer, Relator Allstate Indemnity Co., gave support to the TTA goal that medical expenses should be more rigorously benchmarked.

In that case, the injured woman had affidavits on the size of the medical expenses, which totaled $41,000. But a counter-affidavit obtained by Relator Allstate challenged some of the figures. A lower court rejected the counter-affidavit. 

The key issue in the case, according to the decision handed down earlier this month by the state’s Supreme Court, is that “under Texas law, a party seeking to recover its past medical expenses must prove that the amounts paid or incurred are reasonable.” But getting to that definition can be controversial, and the existence of a counter-affidavit can be part of the process. Here, the counter-affidavit and the ability of its author to testify were tossed out.

But the lower court “clearly abused its discretion” in throwing out the counter-affidavit, the Supreme Court said. 

Esparza said the decision by the Texas Supreme Court “effectively does what we attempted to do in that bill,” referring to SB 207. “The Supreme Court ruling is more important than the bill we have,” he said.

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