TLR 83rd Legislative Summary
FOR IMMEDIATE DISTRIBUTION—June 10, 2013
Contact: Lucy Nashed
TLR just completed its tenth legislative session of advocacy for lawsuit reform. In each and every session, TLR has helped pass meaningful civil justice reforms; we have also worked with legislators in both parties to draft provisions in bills that would either benefit, or not harm, the fairness and balance of the Texas civil justice system. We have prevented our opponents from undermining or reversing good court decisions and previous lawsuit reform. Before giving you a summary of the 83rd Legislative session that just ended, here is a brief recap of some of the major accomplishments in lawsuit reform over the past two decades, of which you have been an important part:
- TLR’s first session was in 1995, when the reforms we advocated arrested the dramatic decline in the fairness and predictability that had eroded the Texas civil justice system over the previous two decades. Punitive damages were capped, forum shopping was curtailed, and proportionate liability was reinstated, and five other significant reforms were put into law.
- In 1999, the State Attorney General was prohibited ever again from awarding billion dollar contingency legal fees to his political supporters, as in the Dan Morales/Tobacco Five Lawsuit where five lawyers were awarded multi-billion dollar legal fees for a copycat lawsuit that never even went to trial.
- In 2003, the Omnibus Tort Reform Bill known as HB 4 made dramatic improvements in numerous areas of the law, including medical liability reform. HB 4 has allowed exponential growth in the availability of medical services and the number of doctors throughout our State. This bill also included product liability reform, class action reform, and 16 other reforms.
- In 2005, we eliminated the abuses in asbestos litigation in Texas, which started the national collapse of the fraudulent practice of bundling thousands of claims by unimpaired persons to extort settlements from deep-pocketed defendants.
- In 2009, we beat back a massive effort by the plaintiff trial lawyers to undermine or reverse various court decisions and tort reforms. The plaintiff trial lawyers’ association was defeated in each of its initiatives.
- In 2011, TLR helped Governor Perry craft and pass the Governor’s Omnibus Tort Bill, which provides for “loser pays” in the dismissal of meritless lawsuits, encourages early and fair settlements of legitimate lawsuits, and makes it quicker and less expensive to prosecute smaller claims.
- In 2011, TLR also worked successfully with the Governor and the Legislature to reform the claims processes and civil penalties provisions for the Texas Windstorm Insurance Association (TWIA) to make sure that future hurricanes would not produce a windfall of hundreds of millions of dollars in fees to lawyers. TWIA is a quasi-government body that has been rendered insolvent, largely by plaintiff lawyer manipulation in Hurricane Ike claims.
In this year’s legislative session, we continued to work with legislators to make sure provisions related to civil penalties and lawsuits were carefully and narrowly crafted. We succeeded in preventing any rollback or undermining of tort reform, and we were able to make improvements in the law. We will soon be mailing you the TLR Advocate, which will provide a full review of the 83rd Legislature, but here is a brief summary of the highlights of the session related to our civil justice system:
Inactive Docket, HB 1325
Governor Perry has signed HB 1325, providing for the dismissal of thousands of asbestos and silica cases pending in Texas courts. These cases, which have been inactive for at least eight years, cannot be dismissed under current law. The bill allows any claimant whose lawsuit is dismissed to re-file his lawsuit at any time during his life, and have the re-filed case treated as if it had never been dismissed.
This important bill was substantially negotiated by TLR and by representatives of both plaintiffs and defendants. It will allow defendants to stop reporting these cases to lenders, insurers and regulators and end potential liability of attorneys to clients whose cases they cannot advance. At the same time, it protects the rights of claimants whose cases are dismissed.
Probate, HB 3280
Governor Perry is expected to sign HB 2380, a probate bill providing that a will or trust containing a no-contest clause is enforceable unless a person challenging the will or trust proves that the challenge is brought in good faith and with just cause.
Judge Guy Hermann, the Travis County probate judge, indicated that the new law will make it more difficult for unhappy heirs to successfully challenge a will when they have no legitimate cause for the challenge. TLR will examine other probate matters in the interim to see if additional changes need to be made to reduce unnecessary probate litigation.
Hiring of Ex-Offenders, HB 1188
TLR supported a measure to remove some liability concerns related to hiring nonviolent ex-offenders. HB 1188 prohibits a lawsuit from being brought against an employer, general contractor, premises owner, or third party solely because the employee has been convicted of a nonviolent criminal offense in the past. This new law should end prejudicial hiring decisions because of potential liability concerns; the public policy of this state should encourage employment of previously incarcerated felons of non-violent crimes to facilitate making these folks productive citizens.
Subrogation, HB 1869
Governor Perry has signed into law HB 1869, a bill promoting access to healthcare by: (1) increasing the recovery for injured parties, (2) preventing an increase in plaintiff attorney fees, and (3) making it easier for defendants to settle cases. The bill changes the way healthcare plans are reimbursed from funds recovered by the injured party in a liability lawsuit.
Under previous law, a person could get injured, sue for damages, receive a settlement and then be required to pay the entire settlement to their health insurer as reimbursement for medical expenses paid for by the insurer. There was no incentive for an injured person to settle for a reasonable sum, if they were to receive no money. Defendants often had to pay an inflated price to settle, or risk going to trial, because they couldn’t reach an agreement.
Extensive negotiations produced a final bill that received the support of all interested parties, and received near-unanimous bipartisan support in the House and Senate.
The Drone Bill, HB 912
The House and Senate have passed HB 912, a bill that imposes criminal and civil liability against an individual who, with intent to conduct surveillance, uses a drone to capture still images or moving images of an owner or tenant of real property, or of the real property, and then distributes those images to third parties.
HB 912, as originally filed, would have allowed open-ended litigation against a person who used a drone to take what would otherwise have been a legal photograph of a person or of real property anywhere in the world. The bill would have imposed criminal and civil liability for downstream distributors of the image, even if that person didn’t know the image had been taken with a drone. In the initial legislative hearing on the bill, it was heavily criticized by law enforcement, the press and tort reformers. TLR committed substantial resources to negotiating the content of the civil liability portions of the bill to limit the mass tort litigation potential in the originally filed bill.
Prevention and Defense
TLR also monitored hundreds of bills that threatened to roll back tort reforms or invalidate or weaken correctly decided opinions by the Texas Supreme Court. TLR worked tirelessly to assure that the plaintiff bar would be unsuccessful in creating new opportunities to sue.
Details on this legislation and other initiatives advocated by TLR are available at www.tortreform.com.