Bill Text: TX HB2034 | 2011-2012 | 82nd Legislature | Introduced
Bill Title: Relating to asbestos and silica litigation.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-04-18 - Left pending in committee [HB2034 Detail]
Download: Texas-2011-HB2034-Introduced.html
82R5304 TJS-F | ||
By: Miller of Comal | H.B. No. 2034 |
|
||
|
||
relating to asbestos and silica litigation. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Sections 90.001 through 90.012, Civil Practice | ||
and Remedies Code, are designated as Subchapter A, Chapter 90, | ||
Civil Practice and Remedies Code, and a heading is added to | ||
Subchapter A to read as follows: | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
SECTION 2. Section 90.007(a), Civil Practice and Remedies | ||
Code, is amended to read as follows: | ||
(a) If [ |
||
|
||
defendant, or serves on the defendant a report that does not comply | ||
with the requirements of Section 90.003 or 90.004, the defendant | ||
may file a motion to dismiss the claimant's asbestos-related claims | ||
or silica-related claims. If the basis for the motion is that the | ||
claimant has served on the defendant a report that does not comply | ||
with Section 90.003 or 90.004, the [ |
||
(1) be filed on or before the 30th day after the date | ||
the report is served on the defendant; and | ||
(2) [ |
||
|
||
|
||
|
||
|
||
|
||
report does not comply with that section. | ||
SECTION 3. Section 90.008, Civil Practice and Remedies | ||
Code, is amended to read as follows: | ||
Sec. 90.008. [ |
||
COURT. (a) Before serving a report required by Section 90.003 or | ||
90.004, a claimant seeking damages arising from an asbestos-related | ||
injury or silica-related injury may voluntarily dismiss the | ||
claimant's action. If a claimant files a voluntary dismissal under | ||
this subsection [ |
||
without prejudice to the claimant's right to file a subsequent | ||
action seeking damages arising from an asbestos-related injury or a | ||
silica-related injury. | ||
(b) An MDL pretrial court, on its own motion, may dismiss | ||
any action that has been pending for more than 180 days in which the | ||
claimant has not served a report that complies with Section 90.003 | ||
or 90.004. A dismissal under this subsection is without prejudice | ||
to the claimant's right to file a subsequent action seeking damages | ||
arising from an asbestos-related injury or a silica-related injury. | ||
SECTION 4. Section 90.010(d), Civil Practice and Remedies | ||
Code, is amended to read as follows: | ||
(d) In an action pending on the date this chapter becomes | ||
law that is transferred to or pending in an MDL pretrial court and | ||
in which the claimant does not serve a report that complies with | ||
Section 90.003 or 90.004, the MDL pretrial court shall not dismiss | ||
the action, except as provided by Section 90.007 or 90.008, | ||
[ |
||
action under the MDL rules. The MDL pretrial court shall not remand | ||
an [ |
||
unless: | ||
(1) the claimant serves a report complying with | ||
Section 90.003 or 90.004; or | ||
(2)(A) the claimant does not serve a report that | ||
complies with Section 90.003 or 90.004; | ||
(B) the claimant serves a report complying with | ||
Subsection (f)(1); and | ||
(C) the court, on motion and hearing, makes the | ||
findings required by Subsection (f)(2). | ||
SECTION 5. Chapter 90, Civil Practice and Remedies Code, is | ||
amended by adding Subchapter B to read as follows: | ||
SUBCHAPTER B. ASBESTOS TRUSTS | ||
Sec. 90.051. DEFINITION. In this subchapter, "asbestos | ||
trust" means a trust fund or claim facility created as a result of a | ||
bankruptcy filing or other insolvency proceeding that is intended | ||
to provide compensation to claimants alleging asbestos-related | ||
injuries. The term includes a trust created under 11 U.S.C. Section | ||
524(g). | ||
Sec. 90.052. STATEMENT OF CLAIMS AGAINST ASBESTOS TRUST. | ||
(a) In an action in which a claimant alleges an asbestos-related | ||
injury, not later than the 90th day before trial, or another date | ||
specified by court order, the claimant shall file with the court and | ||
serve on all parties a statement listing all: | ||
(1) existing or anticipated claims the claimant | ||
intends to bring against an asbestos trust; and | ||
(2) payments or other compensation the claimant | ||
reasonably believes the claimant is entitled to receive or has | ||
already received from an asbestos trust. | ||
(b) A statement provided under Subsection (a) must: | ||
(1) be supported by a sworn affidavit by the claimant | ||
that the statement is based on a good faith investigation of all | ||
potential claims against asbestos trusts; | ||
(2) be supported by a certification by the claimant's | ||
attorney that the attorney has conducted a good faith investigation | ||
of all potential claims against asbestos trusts; | ||
(3) disclose the date on which a claim was or will be | ||
submitted to each asbestos trust and the status of each claim, | ||
including whether there has been a response from the asbestos trust | ||
and whether the claimant or the claimant's counsel has requested | ||
deferral, delay, suspension, or tolling of any aspect of the | ||
asbestos trust's claims process; and | ||
(4) disclose the amount of money, if any, the claimant | ||
has received or will receive from each asbestos trust and an | ||
explanation of any contingency that may cause the amount to be paid | ||
to the claimant to increase in the future. | ||
Sec. 90.053. COMMUNICATIONS WITH TRUST. (a) At the time a | ||
claimant files and serves an asbestos claim statement as required | ||
by Section 90.052, the claimant shall serve on all parties to the | ||
action copies of the claimant's submissions to and communications | ||
with asbestos trusts, including: | ||
(1) copies of electronic data and e-mails; | ||
(2) proof-of-claim forms; and | ||
(3) all material or information provided in support of | ||
the claim or in response to any inquiry from an asbestos trust. | ||
(b) A claimant shall continue to supplement a statement | ||
filed under Section 90.052 or forms and material provided under | ||
Subsection (a) as follows: | ||
(1) if the claimant learns that the statement filed | ||
under Section 90.052 was incomplete or incorrect when filed or is no | ||
longer complete and correct, the claimant shall promptly file and | ||
serve on all parties to the action a supplemental statement; and | ||
(2) if a claimant files a claim form with an asbestos | ||
trust or provides other material to an asbestos trust after the | ||
claimant initially provides forms and material under Subsection | ||
(a), the claimant shall promptly serve copies of the additional | ||
claim forms or material on all parties. | ||
Sec. 90.054. PROHIBITED REMAND. Notwithstanding Section | ||
90.010(c), an MDL pretrial court may not remand a case for trial | ||
until the requirements of Sections 90.052 and 90.053 have been | ||
satisfied. | ||
Sec. 90.055. MOTION TO COMPEL TRUST CLAIM. A defendant in | ||
an asbestos-related action may, at any time, move to compel a | ||
claimant to file a claim with an asbestos trust. If the trial court | ||
determines that there is a good faith basis for the claimant to file | ||
the claim with the asbestos trust, the court shall order the | ||
claimant to file the claim with the asbestos trust and to comply | ||
with Sections 90.052 and 90.053. | ||
Sec. 90.056. DISCOVERY. (a) A defendant in an action in | ||
which the claimant alleges an asbestos-related injury may seek | ||
discovery from an asbestos trust about matters related to the | ||
claimant's injury. If a defendant seeks discovery from an asbestos | ||
trust, the claimant shall provide any consent or permission | ||
required by the asbestos trust for the release of information and | ||
records. | ||
(b) Trust claim forms and other claims-related material are | ||
discoverable and presumed relevant to an action in which the | ||
claimant alleges an asbestos-related injury. The forms, material, | ||
and other information provided or discovered under this section may | ||
be used in evidence by the parties to: | ||
(1) show alternative causation for the claimant's | ||
alleged asbestos-related injury; | ||
(2) serve as a basis for allocating a percentage of | ||
responsibility for the claimant's alleged injury, as provided by | ||
Section 33.003; | ||
(3) serve as a basis for designating the creator of the | ||
trust as a responsible third party, as provided by Section 33.004; | ||
and | ||
(4) serve as a basis for reducing the amount of | ||
recoverable damages under Section 90.058. | ||
Sec. 90.057. RESPONSIBLE THIRD PARTY. If a claimant has | ||
sought compensation from an asbestos trust: | ||
(1) the creator of the trust is a responsible third | ||
party under Section 33.004; and | ||
(2) the trier of fact shall allocate a percentage of | ||
responsibility to the asbestos trust under Section 33.003. | ||
Sec. 90.058. PRESUMPTION OF PAYMENT; AMOUNT OF RECOVERY. | ||
(a) If an action proceeds to trial before the claimant has received | ||
a final decision from an asbestos trust as to payment of the | ||
claimant's claim, there is a rebuttable presumption that the | ||
claimant will receive the compensation in accordance with the | ||
relevant trust governance documents. The trial court shall take | ||
judicial notice of the trust governance documents and the payment | ||
amounts provided by the documents. | ||
(b) If a verdict in favor of the claimant is reached, the | ||
court shall: | ||
(1) establish for each pending asbestos trust claim a | ||
value; and | ||
(2) reduce the amount of damages to be recovered by the | ||
claimant by that amount. | ||
(c) If the recoverable damages are reduced by the amount of | ||
the value attributed to a claim under Subsection (b) and the claim | ||
is wholly or partly rejected by the asbestos trust, the trial court | ||
may at any time modify the judgment and enter an appropriate | ||
judgment considering the effect of the rejected claim. | ||
SECTION 6. The change in law made by this Act applies only | ||
to an action filed on or after the effective date of this Act. An | ||
action filed before the effective date of this Act is governed by | ||
the law that applied to the action immediately before that date, and | ||
that law is continued in effect for that purpose. | ||
SECTION 7. This Act takes effect September 1, 2011. |