This memorandum seeks to explain whether a Plaintiff injured in an auto accident , hurts the same area of his body in a second accident, before his healthcare providers have had an opportunity to properly evaluate the injury, can try his case jointly with the defendants having the burden of proof of their percentage of contribution to the injury.
ANALYSIS
While “indivisible injury” is not specifically formally defined, the former rule in Texas was that there could be no joint liability where two or more persons caused an indivisible injury unless there was concert of action or unity of design. Burns v. Lamb 312 S.W.2d 730, 731 (Tex.Civ.App.1958) citing to Sun Oil Co. v. Robicheaux, Tex.Com.App., 23 S.W.2d 713. This changed with the Texas Supreme Court’s decision in Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 254 (1952). The court noted that [w]here the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit.” Id. at 256. Causes of an occurrence can be concurrent when they act contemporaneously to produce a given result. Rodriguez v. Moerbe, 963 S.W.2d 808 , 819 (Tex.App.-San Antonio 1998) pet. denied. A “new and independent cause” is an act or omission of separate and independent agency that destroys causal connection between negligent act or omission of defendant and injury complained of, and thereby becomes immediate cause of such injury. Id at 810. Nevertheless, where the tortious acts of two or more wrongdoers join to produce an indivisible injury all wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed against any one separately or against all in one suit. Landers, 151 Tex. at 256.
The Rules of Civil Procedure bestow upon trial courts broad discretion in the matter of consolidation and severance of causes, and the trial court's action in such procedural matters will not be disturbed on appeal except for abuse of discretion. Womack v. Berry 156 Tex. 44, 50 (1956). Severance of claims under the Texas Rules of Civil Procedure rests within the sound discretion of the trial court. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990). The three part test employed by Texas trial courts in determining whether to grant a severance are whether: (1) controversy involves more than one cause of action; (2) severed claim is one that could be asserted independently in separate lawsuit; and (3) severed actions are not so interwoven with other claims that they involve same facts and issues. Hamilton v. Hamilton, 154 Tex. 511, 514 (1955); see also TEX. R. CIV. P. 41. The controlling reasons for a severance are to do justice, avoid prejudice, and further convenience. Liberty Nat. Fire Ins. Co. v. Akin , 927 S.W.2d 627, 629 (Tex.1996). For example, in In re Martin, 147 S.W.3d 453, 453 (Tex. App. Beaumont 2004), leave of court, for swimming pool owners to file third-party petition against a three-year-old child's uncle, who allegedly had been responsible for supervising the child when child wandered away, fell into pool, and drowned, was warranted, in the mother's tort action against pool owners. Id. at 453 The Court noted that considerations of efficiency and consistency suggested liability of all responsible parties should be determined in one lawsuit with one jury considering appropriate percentage of responsibility for each party's conduct, and it did not appear the third-party petition would cause unreasonable delay or expense. Id. at 457 Finally, severance is proper only where the suit involves two or more separate and distinct causes of action and each cause into which action is severed must be such that it might properly be tried and determined as if it were only claim in controversy. Kansas University Endowment Ass'n v. King, 350 S.W.2d 11 (Tex.1961).
A “new and independent cause” is defined as an act or omission of a separate and independent agency that destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes the immediate cause of such injury. Young v. Massey, 128 Tex. 638, 639 (1937). For example, in Rodriguez v. Moerbe, 963 S.W.2d 808, 819 (Tex.App.1998), the court looked at the injury and found that because the injury was contemporaneous, the cases were to be tried together. The Rodriguez court noted that “new and independent cause and superseding cause are sometimes used interchangeably. Id. at 820 n. 11. The Roddriguez court referred to six criteria it deemed useful in determining whether an act is a concurring or a new and independent cause. Id. at 820. The criteria are as follows:
(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;
(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operations;
(c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, it is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
Id. at 820.
In CTTI Priesmeyer, Inc. v. K & O Ltd. Partnership, 164 S.W.3d 675 (Tex. App. 2005) it was stated that defendant can be held jointly and severally liable in tort claims on the basis of the conduct of the defendants and the nature of the injury caused to the plaintiff. Id. at 684. “If the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, each person is jointly and severally liable for the recoverable damages caused by the tortious conduct.” Id.
In Phillips v. Gulf & South Am. S.S. Co., the plaintiff contended that the separate injuries to his back sustained as the result of the separate acts of negligence by the separate defendants on separate occasions caused one indivisible injury. 323 S.W.2d 631 (Tex.Civ.App.1959). The court noted the importance of producing a singular injury out of the separate acts, stating that “though it is true that the separate acts of offending parties need not occur simultaneously, we believe that it must be shown that they joined together to produce one and the same injury.” Id. at 635. The court held that this was not the case and that there were in fact two distinct injuries—the original injury and the aggravating injury and they were not so related that defendants could not sever the two. Id. at 635-36.
In Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), the court had held that the defendants could be held jointly and severally liable for the total damages suffered by the plaintiff. Id. at 1095. Plaintiff, an industrial insulation worker, had filed a suit against defendants who were manufacturers of insulation materials which contained asbestos. Id. at 1081. Plaintiff alleged that the defendants had breached their duty by failing to warn plaintiff of the dangers involved in handling asbestos. Id. Plaintiff suffered from the diseases of asbestosis and mesothelioma due to being exposed to defendants products for over a period of 33 year beginning in 1936 and ending in 1969. Id. The court took note of the difficulty of determining exactly what particular exposure to asbestos caused the injury and that exposure was probably collective and that each exposure could have caused an individual or separate injury. Id. at 1094. The court held that each defendant was the cause in fact for some injury caused to plaintiff. Id. The court concluded that each defendant was liable to the plaintiff. Id. The Court also considered the apportionment of damages among the defendants and, applying the principles of Lander, held that the defendants could be held jointly and severally liable for the total damages. Id. at 1096.
It appears that a court will not sever if the injuries do not produce a singular injury. Phillips dealt with an individual injury followed by an aggravating one. 323 S.W.2d at 635. Borel dealt with a singular injury—asbestosis—which was resulted from the multiple acts (or omissions) of multiple defendants. Borel, 493 F.2d at 1096. It appears, as long as the injury is a singular one, and its cause could stem from either or both of the possible causations, that severance is improper. However if the first action caused the injury and the second one was an aggravation, then a court should sever the cases as per Phillips.
The test really isn’t in terms of time between accidents but in the practical ability of a health care provider to make a reasonable diagnosis before the second event. Assume that a client is involved in a wreck and presents to the Emergency Room. He receives meds and told to see his doctor. Before his visit to the doctor he is in a second accident. Later an MRI reveals a significant rupture of a disc of recent origin but the radiologist can not determine which wreck might have caused the rupture. In my career I have had several cases in which a definitive diagnosis of my client was not made before a second injury to the same area of the back. If I had tried them separately, each defense attorney would have argued that the other wreck caused the injury and that I had the burden of proof. Of course, I could argue that the injuries were either caused or aggravated by the second incident. The cleaner and easier way to approach the case is in a joint trial with the judge instructing the jury that it is the burden of the defendants to prove share or they are jointly and severally liable.
CONCLUSION
Time does not necessarily become the deciding factor as to whether the defendants may be joined. It is, rather, the nature of the injury and the ability, or inability, to prove exact causation. If in fact multiple causes produced an injury, a case may not be severed and each party would be jointly and severally liable. The three part test used by the Womack court would be applicable. To put it bluntly, the more confusing a mess is, the more likely a court will allow joinder of defendants. www.bailey-law.com
