The Texas Supreme Court set oral arguments for December 11, 2008 in a case that is very important to the families of those injured and killed in Texas, including current clients of Abraham, Watkins. The case is Galbraith Engineering Consultants Inc. v. Sam Pochucha and Jean Pochucha. At issue is the limit of the practice by defendants of designating “responsible third parties.”
When someone (“the plaintiff”) damaged by the negligence of another (“the defendant”) sues him, the defendant often wants to point the finger of fault at a third party (“third party”). In times past, the defendant was required to sue the third party, and serve the lawsuit papers upon him, if the defendant wanted to blame the third party. In some instances, that raised problems because the third party might be a company which was bankrupt or out of business. This law was changed to favor defendants; now, the law only requires the defendant to name (“designate”) a third party; if the third party is unavailable or bankrupt, that works to the detriment of the plaintiff, not the defendant.
Sometimes the defendant designates a third party after the statute of limitations would bar the plaintiff from suing the third party. In that event, current law gives the plaintiff 60 days to add the third party to the suit, even if the statute of limitations would have barred the plaintiff from suing the third party.
Statues of “repose” are like the statutes of limitations, except they bar any action against some parties 10 years after a building was constructed or a product was made, regardless of when the injury occurred. So, a claim might be barred even before the plaintiff is injured, and the plaintiff could never hold that party responsible for his negligence.
What happens if a defendant tries to designate as a third party the maker of a building after the 10-year limit? If the plaintiff is not allowed to add the third party to the suit, then the defendant may obtain an offset in the verdict against the third party even though the plaintiff could not bring suit against that third party. The Supreme Court will answer this question when it rules in the Galbraith Engineering case.
Since oral arguments are set for December, we can look for a ruling sometime next year.