Chapter 18-3 Determining Amount of Recovery

• Jurisdiction: United States

18-3 Determining Amount of Recovery

A claimant's maximum recovery is determined by, first, reducing the amount of damages by the percentage of responsibility assigned to the claimant.²⁹ In other words, if a plaintiff's percentage of responsibility is 50% or less, the court will reduce the plaintiff's recovery by that percentage.³⁰ This number must then be further reduced by the sum of the dollar amounts of all settlements.³¹ In a medical malpractice case, the defendants have the option of reducing the plaintiff's maximum amount of recovery by the total percentage of fault of all settling persons, rather than the total dollar amount of the settlements.³² Generally, the burden is on the defendant to prove the amount of the settlement, but the plaintiff must prove any portion of the settlement that is allocated to punitive damages (as there is no offset for punitive damages).³³ Similarly, it appears that the burden is on the plaintiff to prove what portion of a settlement that did not benefit him (e.g., was for the benefit of another, such as a spouse or child).³⁴

A plaintiff may not be able to recover his maximum amount because his recovery may be independently limited by the maximum amount of liability for a defendant.³⁵ Unless a defendant is jointly and severally liable (defendant's responsibility is greater than 50%³⁶ or his conduct constitutes certain crimes under the Texas penal code³⁷), the maximum amount of liability for a defendant is "the percentage of the damages found by the trier of fact equal to that defendant's percentage of responsibility."³⁸ For example, where damages are $400,000 and a defendant's percentage of responsibility is 25%, the defendant's maximum amount of liability is $100,000.

Even if the plaintiff's maximum amount of recovery is greater than the defendant's maximum amount of liability, the plaintiff cannot recover from the defendant more than the maximum amount of liability.³⁹ Where such a case involves multiple plaintiffs, the plaintiffs will recover pro rata shares of the maximum amount of liability from the defendant or defendants.⁴⁰

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Notes:

^[29] Tex. Civ. Prac. & Rem. Code Ann. § 33.012(a).

^[30] Nabors Well Services, Ltd. v. Romero, 456 S.W.3d 553, 559 (Tex. 2015).

^[31] Tex. Civ. Prac. & Rem. Code Ann. § 33.012(b).

^[32] Tex. Civ. Prac. & Rem. Code Ann. § 33.012(c).

^[33] Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 391-92 (Tex. 2000); Farmers Tex. Cty. Mut. Ins. Co. v. Okelberry, 525 S.W.3d 786, 795 (Tex...