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At a Glance:
Title:
Owens Corning v. Carter
Date:
July 2, 1999
Citation:
997 S.W.2d 560
Court:
Texas Supreme Court
Status:
Published Opinion

Owens Corning v. Carter

Supreme Court of Texas.

OWENS CORNING, et al., Appellants,

v.

Hilliard CARTER, Appellee.

Owens Corning, et al., Appellants,

v.

James B. Carroll, et al., Appellees.

Owens Corning, et al., Appellants,

v.

George R. Aday, et al., Appellees.

Owens Corning, et al., Appellants,

v.

Larry R. Chandler, et al., Appellees.

Owens–Corning Fiberglas Corporation, Owens Corning, Pittsburgh Corning Corporation, Minnesota Mining & Manufacturing Co., A.P. Green Industries, Inc., Armstrong World Industries, CertainTeed Corp., Dana Corp., Quigley Company, Inc., et al., Appellants,

v.

Austin E. Deford, et al., Appellees.

Nos. 97–1162 to 97–1166.

|

Argued Sept. 9, 1998.

|

Decided July 1, 1999.

Attorneys & Firms

*564 Solace Kirkland Southwick, Houston, for Appellants in No. 97–1162.

Robert E. Thackston, for Appellants in No. 97–1163.

Thomas M. Farrell, Houston, for Appellants in No. 97–1164.

Thomas M. Farrell, Houston, for Appellants in No. 97–1165.

Thomas M. Farrell, Houston, for Appellants in No. 97–1166.

Mary Elizabeth Skelnik, Rola Saidi, Dallas, for Appellees in Nos. 97–1162 to 97–1165.

Tommy Jacks, Austin, for Appellees in No. 97–1166.

Opinion

Justice ABBOTT delivered the opinion of the Court.

In these consolidated direct appeals we consider the constitutionality of section 71.031(a)(3) is unconstitutionally retroactive, whether it violates the open courts provision of the Texas Constitution, and whether it violates the Privileges and Immunities Clause of Article IV of the United States Constitution.

section 71.051 does not *565 violate the Privileges and Immunities Clause, and Plaintiffs challenge that holding on appeal.

section 71.052(b) violates the Equal Protection Clauses of the Texas and United States Constitutions or the special laws provision of the Texas Constitution.

We affirm the trial court’s judgment that 71.031(a)(3) do not violate any of the constitutional provisions asserted by Plaintiffs. Accordingly, we affirm in part and reverse in part.

I

FACTS

Plaintiffs brought five separate lawsuits1 in Texas against Owens Corning (formerly Owens–Corning Fiberglas Corporation), Pittsburgh Corning, A.P. Green Industries, Armstrong World Industries, CertainTeed Corporation, Dana Corporation, Quigley Company, United States Gypsum, Minnesota Mining & Manufacturing Co., and W.R. Grace & Company–Connecticut (“Owens Corning”) and other defendants2 for personal injuries resulting from asbestos exposure. Four of the actions (Chandler, Carroll, Carter, and Aday ) were filed in August 1995, while the Deford lawsuit was filed on May 5, 1997. All Plaintiffs were citizens and residents of states other than Texas when the alleged exposures occurred and when they filed their lawsuits in Texas. The actions were maintained according to Texas Civil Practice and Remedies Code section 71.031, which governs claims for death or personal injury caused by acts or omissions occurring out of state.

When the plaintiffs filed their suits, sec. 71.051, 1993 Tex. Gen. Laws 10, 12.

A

In early 1997, the Legislature concluded that Texas law was too amenable to claims *566 arising out of state and claims brought by foreign plaintiffs, and determined that this amenability crowded Texas courts with claims having little or no connection to Texas, at the expense of Texas residents. Additionally, the Legislature recognized that the asbestos exception to the forum non conveniens law made Texas an especially popular forum for a huge number of out-of-state asbestos claims.

The Legislature enacted Senate Bill 220, effective May 29, 1997, to address these concerns. Act of May 27, 1997, 75th Leg., R.S., ch. 424, 1997 Tex. Gen. Laws 1680. Senate Bill 220 changed Texas law in several significant ways. First, to discourage forum shopping by nonresidents with claims arising out of state, the Legislature amended section 71.031(a)(3) “borrows” another state’s statute of limitations such that a foreign plaintiff whose cause of action for personal injury or wrongful death arose in a foreign state with a shorter limitations period than Texas’s must file within the limitations period prescribed by that state’s law.

Second, the Legislature amended § 71.051(e).

Third, the Legislature created Id. § 71.052(f).

*567 B

Owens Corning filed the requisite stipulations and moved to dismiss the Deford Plaintiffs’ claims, arguing that those claims were subject to mandatory dismissal under 71.031(a)(3) on their own behalf and on behalf of the class of “all non-Texas residents who have filed asbestos-related personal injury lawsuits in Texas state courts on or after January 1, 1997.” They sought declaratory and injunctive relief preventing all Defendants from seeking to enforce these provisions.

Owens Corning filed a counterclaim and motion for class certification in the Chandler, Aday, Carrol, and Carter suits.4 Owens Corning sought a declaratory judgment that section 71.052(c).

The trial court held a joint “trial” to consider the issues raised in all five cases. After hearing argument and receiving evidence, the court denied class certification and rendered interlocutory declaratory judgments in each suit. In the Deford action, the trial court declared section 71.052(c) unconstitutional as applied to certain plaintiffs who commenced suit between August 1, 1995 and September 1, 1995, and enjoined all Defendants from seeking to enforce the provision against those Plaintiffs.

II

JURISDICTION

Owens Corning asserts direct appeal jurisdiction premised on the trial court’s enjoining all Defendants in the case from seeking to enforce TEX. CONST. art. V, § 3–b.

Plaintiffs contend that jurisdiction is lacking because “the purported injunctive relief granted by the trial court below was actually no more than a declaratory judgment under another name.” Plaintiffs argue that they sought injunctive relief to prevent the constitutional issues from being relitigated in other courts with respect to absent members of the putative class. Because the trial court denied class certification, Plaintiffs contend that the injunctions have no force or effect independent of the trial court’s interlocutory declaratory judgments in the individual suits and are therefore insufficient to confer direct appeal jurisdiction.5 This argument is *568 without merit. Plaintiffs sought temporary and permanent injunctive relief on their own behalf and on behalf of the putative class. The fact that they received an injunction solely on their own behalf does not transform the injunction into mere declaratory relief and does not deprive this Court of jurisdiction. The trial court issued orders granting and denying injunctive relief on the grounds of the constitutionality of Senate Bill 220, and each party has appealed. As such, the requirements of section 22.001(c) are satisfied.

III

SECTION 71.051

In their direct appeal, Plaintiffs challenge the trial court’s denial of injunctive relief with regard to section 71.051 violates the Privileges and Immunities Clause of the United States Constitution, which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” U.S. CONST. art. IV, § 2, because, although it allows a court to dismiss a foreign plaintiff’s claim under the doctrine of forum non conveniens, it does not permit a court to dismiss a claim if the plaintiff is a Texas resident.

Id. § 71.051(f).

Owens Corning asserts that Id.

In Douglas, the Court stated:

By reason of the Privileges–and–Immunities Clause ... Missouri cannot allow suits by nonresident Missourians for liability under the Federal Employers’ Liability Act arising out of conduct outside that State and discriminatorily deny access to its courts to a non-resident who is a citizen of another state. But if a State chooses to “[prefer] residents in access to often overcrowded Courts” and to deny such access to all non-residents, whether its own citizens or those of other States, it is a choice within its own control.

Relying on Mayfield, many courts have followed the general rule that applying the doctrine of forum non conveniens to refuse jurisdiction in an action brought by a citizen of a foreign state does not violate the Privileges and Immunities Clause if jurisdiction would be refused in an action brought by a citizen of the forum state in the same circumstances.7 A particular state may apply the doctrine of forum non conveniens, as long as it is applied to citizens and noncitizens alike. Accordingly, Texas might violate the Privileges and Immunities Clause by choosing to apply the doctrine of forum non conveniens to nonresident nonTexans while exempting nonresident Texans from its application.

Thus, if Mayfield indicates that such discrimination might be unconstitutional. Owens Corning contends that the statute, which prohibits dismissal if the plaintiff is a “legal resident” of Texas, falls in the former category; Plaintiffs contend it is the latter because the statute’s definition of “legal resident” effectively permits nonresident Texas citizens to survive dismissal.

The statute defines “legal resident” as “an individual who intends the specified political subdivision to be his permanent residence and who intends to return to the specified political subdivision despite temporary residence elsewhere or despite temporary absences, without regard to the individual’s country of citizenship or national origin.” TEX. Mayfield.

The Supreme Court addressed a similar argument in Douglas, 279 U.S. at 387, 49 S.Ct. 355.

The crux of Plaintiffs’ argument is that, unlike the statute in Douglas, 279 U.S. at 387, 49 S.Ct. 355. We agree.

The definition of “legal resident” in 71.051 is largely similar to the definition in the Election Code.8 Both provide that the person must intend the place to be his home or permanent residence, to which he intends to return after temporary absences. But a significant difference is id. § 71.051(h)(1).

Under section 71.051 does not discriminate between nonresident citizens and nonresident noncitizens.

Plaintiffs also contend that we may not rely on Barnard v. Thorstenn, 489 U.S. 546, 552–53, 109 S.Ct. 1294, 103 L.Ed.2d 559 (1989).

Although Plaintiffs are correct that modern privileges and immunities law differs from that announced in Douglas unless and until the Supreme Court overrules it.

IV

SECTION 71.031(A)(3)

Under the borrowing statute, foreign plaintiffs must commence their suits both within the time provided by Texas law and “within the time provided by the laws of the foreign state ... in which the wrongful act, neglect, or default took place.” TEX. CIV. PRAC. & REM.CODE § 71.031(a)(2), (3). The borrowing statute applies to all personal injury and wrongful death actions. Thus, a foreign plaintiff whose cause of action for personal injury *572 or wrongful death arose in a foreign state with a shorter limitations period than Texas’s must file within the limitations period prescribed by that state’s law.

There is no dispute that Plaintiffs’ claims would be subject to Texas’s statute of limitations under the law as it existed before adoption of the borrowing statute. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, section 71.031(a)(3) violates open courts and the Privileges and Immunities Clause. We disagree with each of these contentions.

A

Plaintiffs contend that applying the borrowing statute to certain of the Plaintiffs’ claims violates section 71.031(a)(3) is unconstitutionally retroactive as applied to “any Alabama asbestos plaintiff whose cause of action had accrued under Texas law but was not yet barred as of May, 29, 1997,” the effective date of the borrowing statute. Owens Corning challenges that ruling in its direct appeal.

In finding Article I, Section 16 of the Texas Constitution.

The prohibition against retroactive laws derives largely from the sentiment that such laws unfairly deprive people of legitimate expectations. See 519 U.S. 1077, 117 S.Ct. 739(1997).

First, any “expectations” that Plaintiffs might have had with regard to Texas’s limitations period are insufficient to require Texas to afford Plaintiffs a grace period. The borrowing statute did not significantly change existing law. Both Texas’s and Alabama’s statutes of limitations remain unchanged with respect to causes of action arising in each state. The borrowing statute simply provides that the statute of limitations of the state in which the wrongful act, neglect, or default occurred must be satisfied; it is essentially a codified choice-of-law rule governing the timeliness of actions. See, e.g., In re TMI, 89 F.3d at 1113–14.

Second, requiring a grace period for otherwise time-barred claims would defeat the very purpose of the borrowing statute: a plaintiff should not be able to gain greater rights than he would have in the state where the cause of action arose and where he lives simply by bringing suit in Texas. See section 71.031(a)(3) is unconstitutional as applied to certain plaintiffs.

B

Plaintiffs also contend that application of the borrowing statute to bar their claims violates the open courts provision of the Texas Constitution, which provides that “[a]ll courts shall be open, and every person for an injury done to him, in his lands, goods, person or reputation, shall have remedy by due course of law.” TEX. CONST. art. I, § 13. The trial court held that the borrowing provision did not violate the open courts provision, and Plaintiffs challenge that ruling.

Among other guarantees, the open courts provision provides that “ ‘the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants’ constitutional right of redress.’ ” Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.1990).

Plaintiffs Horton and Moore argue that the borrowing provision unjustifiably cuts off their right to sue without a reasonable opportunity to discover the wrong and *574 bring suit. This is so, Plaintiffs contend, because Texas courts must apply Alabama limitations law in asbestos cases brought by Alabama residents, but Alabama’s statute of limitations does not provide a reasonable opportunity to discover the wrong because it requires asbestos victims to bring suit before they can discover their injuries. See Weiner v. Wasson, 900 S.W.2d 316, 319 (Tex.1995). Owens Corning argues that Plaintiffs cannot satisfy their burden of proof because any restriction on Plaintiffs’ rights is not unreasonable or arbitrary—the borrowing statute simply adopts the restrictions imposed by the state where the cause of action arose and whose law gave rise to the claim.

In evaluating whether a statute violates the open courts provision, we consider both the general purpose of the statute and the extent to which the litigant’s right is affected. section 71.031(a)(3) to restrict that right is a valid exercise of its police power.

It is within the authority of the Legislature to make reasoned adjustments in the legal system. See Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985). As stated previously, the purpose of the borrowing provision is to prevent plaintiffs from gaining greater rights than they would have had in the state where the cause of action arose simply by filing suit in Texas. Because Texas, unlike most other states, had no borrowing statute, it had become a popular forum for plaintiffs whose claims were time-barred where they arose. The Legislature considered testimony and evidence revealing that such transitory actions diverted judicial resources and crowded the courts. The Legislature determined, as a matter of state policy, that Texas resources should not be expended on such transitory actions. These findings meet the test of an “important” state interest.

The Legislature recognized the need to “bring Texas into the mainstream”; it reasonably concluded that adopting a borrowing statute would alleviate these problems. The remedy—adoption of the borrowing statute—is directly related to the crisis identified by the Legislature and bears a real relationship to the articulated legislative goals. As such, it does not violate Article I, Section 13.

C

Last, Plaintiffs challenge the trial court’s finding that the borrowing statute does not violate the Privileges and Immunities Clause of Article IV of the United States Constitution. Plaintiffs argue that the borrowing provision violates the Privileges and Immunities Clause because it only applies to claims brought by nonresidents. Thus, unlike nonresidents whose claims arose outside of Texas, Texas residents are not subject to the borrowing statute, even if their claims also arose outside of the state. We hold that the borrowing statute does not violate the Privileges and Immunities Clause.

The United States Supreme Court decided this very issue in Id. at 558, 40 S.Ct. 402. The plaintiff was a citizen of South Dakota whose cause of action arose in Canada. Plaintiff’s personal injury claim was barred by Canada’s one-year statute of limitations at the time plaintiff filed suit in Minnesota, although it would have been timely under Minnesota’s six-year limitations period.

The Court held that Minnesota’s borrowing statute did not violate the Privileges and Immunities Clause because “the constitutional requirement is satisfied if the non-resident is given access to the courts of the State upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded to resident citizens.” Id. at 562, 40 S.Ct. 402. The Court reasoned:

The laws of Minnesota gave to the non-resident respondent free access to its courts, for the purpose of enforcing any right which he may have had, for a year,—as long a time as was given him for that purpose by the laws under which he chose to live and work—and having neglected to avail himself of that law, he may not successfully complain because his expired right to maintain suit elsewhere is not revived for his benefit ... for the sole purpose of prosecuting his suit.

Id.

Plaintiffs acknowledge the existence of this controlling Supreme Court authority, but argue that it is inapplicable because, in contrast to the Eggen plaintiff who suffered an acute personal injury, the Alabama Plaintiffs suffered from a latent toxic injury and were not given “a length of time reasonably sufficient to enable an ordinarily diligent man to institute proceedings” because Alabama law does not apply the discovery rule to latent toxic injury cases.9

The fact that Alabama does not apply the discovery rule to the case at hand does not render application of its statute of limitations by Texas courts unreasonable. Eggen for the proposition that the statute did not violate the Privileges and Immunities Clause). Plaintiffs cite no case to the contrary.

In essence, Plaintiffs petition this Court to hold that Alabama’s statute of limitations is unreasonable, despite the fact that Alabama’s statute of limitations has been upheld as constitutional by the Alabama Supreme Court. See Eggen, 252 U.S. at 560, 40 S.Ct. 402.

For these reasons, we hold that section 71.031(a)(3) does not violate the Privileges and Immunities Clause of the United States Constitution.

V

SECTION 71.052

In the trial court, Plaintiffs brought several challenges to section 71.052 under the Texas and United States Constitutions. The trial court rejected the Plaintiffs’ challenges to sections 71.052(b) and (c) unconstitutional and enjoining Owens Corning from seeking to enforce these provisions against the Plaintiffs.

A

Unlike CIV. PRAC. & REM.CODE § 71.052(h).

Section 71.052 has separate provisions dealing with pending asbestos claims, depending on the date the claims were filed. Subsection (b) provides:

The court, on motion of a defendant, shall dismiss each claim against the defendant *577 that is subject to this section and was filed in this state on or after January 1, 1997, on the filing of a stipulation by the defendant that, for the purposes of limitations, the filing of the claim in another forum would relate back to the date each plaintiff filed his claim in this state.

Id. § 71.052(b). The trial court correctly noted that, although not expressly stated, section 71.052(b) applies only to claims filed on or after January 1, 1997 but before May 29, 1997, the effective date of the Act. Act of May 27, 1997, 75th Leg., R.S., ch. 424, § 4(b), 1997 Tex. Gen. Laws 1680, 1683.

For claims filed before January 1, 1997 but after August 1, 1995, section 71.052(c) states:

The court, on motion of a defendant, shall dismiss each claim against the defendant that is subject to this section and was commenced in this state on or after August 1, 1995, but before January 1, 1997, unless the plaintiff files a written statement electing to:

(1) abate the plaintiff’s claim against the defendant for a period of 180 days from the date the court disposes of the defendant’s motion, to afford the plaintiff an opportunity to file a new action on the claims in another state of the United States; or

(2) retain the plaintiff’s claims against the defendant in this state and limit the plaintiff’s recovery on the claims for exemplary damages, if any, against the defendant to an amount not to exceed the greater of:

(A) two times the amount of economic damages plus an amount equal to any noneconomic damages found by the trier of fact, not to exceed $750,000; or

(B) $200,000.

Id. § 71.052(c).

Before a court may dismiss a claim under either section 71.052(b) or (c), the defendant must file written stipulations that, with respect to the filing of a claim in another state, the defendant agrees: (1) to toll limitations during the time the plaintiff’s claim was pending in Texas; and (2) that the plaintiff may elect that the plaintiff and defendant may use discovery already conducted in the case. Id. § 71.052(b), (e), & (f).

B

Unlike TEX. GOV’T CODE § 311.023.

When interpreting a statute, we begin with the words of the statute itself, giving words their ordinary meaning. Id.

Despite statements made by the bill’s sponsors, the language of section 71.052 does not discriminate on the basis of residence at the time of filing—a Texas resident’s claim is subject to dismissal on exactly the same terms as a nonresident’s claim. Such a construction applies the plain wording of the statute, avoids potential constitutional infirmities, and is consistent with the Act’s title, which states that it relates to “lawsuits arising outside or brought by persons who reside outside of Texas.” Act of May 27, 1997, 75th Leg., R.S., ch. 424, 1997 Tex. Gen. Laws 1680, 1680 (emphasis added).

C

Plaintiffs contend that even if section 71.052 discriminates only on the basis of residence at the time the cause of action arose, such discrimination nevertheless violates the Privileges and Immunities Clause. Owens Corning responds that the state may consider the plaintiff’s residence at the time the cause of action accrued in deciding whether to entertain a cause of action arising out of state without running afoul of the Privileges and Immunities Clause.

Owens Corning argues that the Supreme Court’s opinion in Id. at 151, 28 S.Ct. 34. Thus, Owens Corning contends, because Plaintiffs’ claims would have been dismissed even if they were citizens of Texas, the Privileges and Immunities Clause is not implicated.

Plaintiffs respond that Chambers is further inapposite because it involved citizenship-based discrimination as opposed to residence-based discrimination.

Thus, we must determine whether Id. at 69, 102 S.Ct. 2309 (Brennan, J., concurring). Justice Brennan agreed with Justice O’Connor, stating that

if each State were free to reward its citizens incrementally for their years of residence, so that a citizen leaving one state would thereby forfeit his accrued seniority, only to have to begin building such seniority again in his new state of residence, then the mobility so essential to the economic progress of our Nation, and so commonly accepted as a fundamental aspect of our social order, would not long survive.

section 71.052 similarly burdens the right to travel.

The Supreme Court recently considered the right to travel in Id. at 1525-1526.

In this case, all Plaintiffs are nonresidents of Texas; none has elected to become a Texas resident. Accordingly, only the second component of the right to travel is implicated by their claims. In contrast, section 71.052, the statute does not violate the Privileges and Immunities Clause of Article IV.

D

Plaintiffs also contend that, read in the context of the entire statutory scheme, section 71.052 could not be refiled in Texas. Owens Corning argues that there is no hint that the Legislature contemplated such refiling, and, in fact, allowing dismissed plaintiffs to refile *580 would run counter to legislative intent because it would provide plaintiffs “a further opportunity to abuse the system and muck up the courts.” We agree with the Plaintiffs that dismissed claims may be refiled in Texas courts.

Nothing in the statutory language or the legislative history indicates that plaintiffs who are dismissed under 71.031(a)(3).13

Allowing plaintiffs dismissed under section 71.052(c), both residents and nonresidents are treated alike.

For these reasons, we hold that section 71.052(b). We now address those challenges.

E

Plaintiffs contend that section 71.052’s classifications distinguish between classes on a suspect basis, nor do they argue that the legislation affects their fundamental rights. Applying rational basis review, we hold that the Legislature’s classification *581 scheme is rationally related to a legitimate state interest.

Early versions of section 71.052, which provides for mandatory dismissal—subject to certain procedural safeguards—and created the date classifications at issue.

We have recognized that it is rational for a new law to become effective immediately so that it is not undermined during the period between its passage and its effective date. See Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).

Plaintiffs admit that, as a practical matter, dismissal and refiling effectuates a retroactive application of section 71.051, plaintiffs contend that many will, and, although they will have “unnecessarily and irrationally suffered from the classification by having to pay an additional filing fee and by losing their original place in the trial queue, their cases will remain in Texas.” In contrast, certain Alabama plaintiffs such as Moore cannot refile because their refiled claims will be barred by the borrowing statute. Thus, plaintiffs contend that, “as a practical matter, the only purpose furthered by ... the mandatory dismissal of pending claims is the illegitimate goal of retroactively shortening the statute of limitations applicable to Alabama citizens who filed between January 1 and May 29, 1997.” Plaintiffs contend that such a purpose cannot satisfy the rational basis test because the goal—application of the borrowing statute to bar pending claims—is itself unconstitutional.

As we have already held, applying the borrowing statute to bar pending claims is not unconstitutionally retroactive. Thus, the question to be decided is whether there is a rational basis for the Legislature to require mandatory dismissal of claims in *582 order to effect a retroactive application of the borrowing statute, rather than simply providing that it (and Corsicana Cotton Mills v. Sheppard, 123 Tex. 352, 71 S.W.2d 247, 250 (1934)).

Plaintiffs argue that there is no rational basis for treating similarly situated plaintiffs differently based on the time of filing suit. See section 71.051. Plaintiffs contend this disparity in treatment cannot rationally be justified. To the contrary, we conclude that requiring dismissal of claims filed between January 1, 1997 and May 29, 1997, rather than applying the new law to those claims, is rationally related to a legitimate state interest.

The Legislature reasonably believed that Texas’s resources were better spent on cases having a more substantial relation to Texas, and that Texas residents were being denied access to their own courts because of a backlog of cases the Legislature reasonably believed should be litigated elsewhere. The purpose of Senate Bill 220 was to remove the asbestos exception from section 71.051 and to discourage forum shopping by all out-of-state plaintiffs with claims arising in another state by adopting the borrowing statute. Certainly, these are legitimate state interests.

To further these goals, the dismissal provisions in section 71.052 attempt to relieve the burden that asbestos claims have placed on Texas courts, while attempting to treat pending claims fairly:

[Senate Bill 220] would not affect any asbestos-related cases commenced in Texas by out-of-state plaintiffs before August 1, 1995. Any cases commenced before that date would likely be far enough along in the course of the case that they should be making their way out of Texas courts very soon.

Claims of asbestos-related plaintiffs who have filed suit from August 1, 1995, to January 1, 1997, the bulk of pending asbestos-related [litigation], would be allowed to remain in Texas courts only if they agreed to have punitive damages ... limited.... Such a limitation would be an incentive for these plaintiffs to *583 seek out another forum in which to try their cases. While it would encourage plaintiffs to seek out other forums, if such forums were not available, the plaintiffs could still use Texas courts to pursue their claims.... [And][s]uch a limitation could likely encourage settlement of asbestos-related claims ... because it would establish limits on how high punitive damages could go....

The only asbestos-related plaintiffs whose cases would likely be barred from being brought in Texas courts are those that have been commenced this year, after plaintiff’s attorney’s [sic ] were placed on notice that the Legislature was considering limiting such suits. That notice encouraged a significant amount of cases to be filed in the hopes of “getting in under the wire” and ensuring the out-of-state plaintiff had a place in line in Texas courts. [Senate Bill 220] would simply apply the law that would be applied to all plaintiffs after enactment of this legislation to those plaintiffs that have commenced actions [after January 1, 1997]. Unless a claim would have been proper in the plaintiff’s own jurisdiction, Texas courts would not be burdened [with] such claims simply because Texas calculates its statutes of limitations differently.

HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. S.B. 220, 75th Leg., R.S. (1997). Thus, the Legislature had a rational basis for choosing the dates that it did.

In addition, there is a rational basis for providing for dismissal of all claims filed between January 1, 1997 and May 29, 1997. If the Legislature had provided that section 71.052(b) does not violate the Equal Protection Clauses of the Texas or United States Constitutions.

F

Plaintiffs also contend that the Act is a special law in violation of id.; Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex.1996).

* * * * *

In sum, we affirm the trial court’s judgment that 71.052(b), and 71.052(c) are constitutional with respect to the challenges asserted by Plaintiffs, we reverse the trial court’s judgment to the contrary, and instruct the court to vacate its orders enjoining Defendants from attempting to enforce those provisions.

Justice HANKINSON did not participate in the decision.

Footnotes

1

The suits were styled Deford, et al. v. Owens–Corning Fiberglas, et al.; Chandler, et al. v. Owens Corning, et al.; Carrol, et al. v. Owens Corning, et al.; Carter et al. v. Owens–Corning, et al.; and Aday, et al. v. Owens–Corning, et al.

2

Although Plaintiffs sued a number of other defendants, only the named defendants are parties to this appeal.

3

By statute, the claim arises in the state where the asbestos exposure allegedly occurred. See TEX. CIV. PRAC. & REM.CODE § 71.052(h) (“A court shall determine that a claim arose in the jurisdiction in which the plaintiff was located at the time the plaintiff is alleged to have been exposed to asbestos fibers.”).

4

Because these suits were filed before January 1, 1997, section 71.052(b) does not apply to them.

5

Alternatively, Plaintiffs filed a cross direct appeal premised on the trial court’s denial of injunctive relief relating to the alleged unconstitutionality of section 71.051.

6

The statute provided that “[a]n action against a foreign corporation may be maintained by ... a non-resident ... only ... [w]hen a foreign corporation is doing business within this State.” Douglas, 279 U.S. at 386, 49 S.Ct. 355.

7

See, e.g., Mooney v. Denver & Rio Grande W. R.R., 118 Utah 307, 221 P.2d 628 (1950).

8

The Election Code provides:

(a) In this code, “residence” means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence.

(b) Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.

(c) A person does not lose the person’s residence by leaving the person’s home to go to another place for temporary purposes only.

(d) A person does not acquire a residence in a place to which the person has come for temporary purposes only and without the intention of making that place the person’s home.

TEX. ELEC.CODE § 1.015.

9

The Alabama Code provided a one-year statute of limitations for all injuries not arising from contract. Johnson v. Garlock, Inc., 682 So.2d 25, 28 (Ala.1996). Thus, Alabama’s discovery rule for asbestos exposure cases generally applies only if the plaintiff was exposed after 1979.

10

All claims filed on or after September 1, 1995 are subject to the same cap on punitive damages found in section 71.052(c).

11

“The court may not stay or dismiss a plaintiff’s claim under Subsection (b) if the plaintiff is a legal resident of this state.” TEX. CIV. PRAC. & REM.CODE § 71.051(e).

12

With regard to persons who elect to become Texas residents, the third component of the right to travel is implicated because new Texas residents may be denied access to Texas courts for claims that arose during their residence in another state. As noted, the right to travel in that case is located in the Fourteenth Amendment. See Saenz, 119 S.Ct. at 1526. Plaintiffs have not raised this challenge to the statute.

13

Although the statute does not say so, any dismissal under Irwin v. Basham, 507 S.W.2d 621, 625 (Tex.Civ.App.—Dallas 1974, writ ref’d n.r.e.).

14

In fact, that is the result of applying section 71.052(c)—it retroactively applies the punitive damages cap to claims filed in the month preceding its passage.

15

For example, the trial court held that there was no evidence that the out-of-state asbestos claims were preventing Texas plaintiffs from reaching their day in court, and noted that the Texas Judicial Council’s Annual Report for Fiscal Year 1996 indicated that Texas courts were, on the whole, keeping up with their backlog notwithstanding the out-of-state asbestos claims.

End of Document
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