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Healthcare Centers of Texas12/12/2002
Justice
CONCURRING OPINION
I join in all of the majority's opinion except for its discussion of the punitive damages issues. On that issue, I concur in the result.
The majority opinion has set forth the facts of the case and the issues, so I will not revisit them. I do, however, want to address one aspect of the case that I believe was not fully explored by either of the parties. This is a new section of the civil practice and remedies code, and, as the majority expresses, no case law exists on the applicability of the section to this fact situation.
One problem with this case is, and always has been, that the parties avoided discussing the main statutory issue in the case: when a corporation is sued for its own alleged criminal act but a criminal act of a third party is also responsible for the injuries sued upon, does section 41.00(a) of the Civil Practice and Remedies Code bar exemplary damages? LaPorte has always said simply that Rigby was suing for Morris's sexual assault of her elderly mother and, therefore, section 41.005(a) bars exemplary damages. Rigby has always responded that she is suing, not for Morris's sexual assault, but for LaPorte's commission of injury to an elderly individual, see Tex. Pen. Code Ann. § 22.04 (Vernon Supp. 2002); because that is a separate crime that LaPorte committed, section 41.005(a) does not apply. Both are right—at least partly so. LaPorte is right that Rigby is suing for the harm that resulted from Morris's sexual assault of Rigby's mother, and Rigby is right that she is suing for LaPorte's alleged commission of injury to an elderly individual. But, neither LaPorte nor Rigby explained in any detail why the other's argument was faulty. That left us to grapple with the issue ourselves. And, what the majority opinion concludes—I think rightly—is that 41.005(a) does apply. What I want to do in this concurrence is discuss in more detail the reasons for that conclusion and its ramifications.
The first paragraph of the statute provides the following:
(a) In an action arising from harm resulting from an assault . . . or other criminal act, a court may not award exemplary damages against a defendant because of the criminal act of another.
Tex. Civ. Prac. & Rem. Code Ann. § 41.005 (Vernon 1997). This paragraph is broadly written, and it appears to apply to this case.
First, clearly, this action arose from, and was brought because of, Morris's sexual assault of Rigby's mother. If the sexual assault had not happened, there would not have been a suit. Or, if there had been a suit, it would have to be because Rigby's mother was injured in some other way on account of LaPorte's failure to act.
Second, it is impossible to look at this case and say that the jury assessed $50 million in damages against LaPorte and never gave a second thought to Morris's criminal act. Yes, the jury question asked the jury to assess damages based on LaPorte's criminal act, but that act has no significance by itself. It can be viewed only in the context of what it failed to prevent: Morris's rape of a fellow resident of the nursing home. Consequently, for purposes of damages—for any purpose really—the two acts are so intertwined that one cannot be considered without the other. In such a case, the jury's award had to be based, at least in part, on the criminal act of another. This is what the statute bars.
According to Rigby's counsel, this means that any time a third party commits a criminal act, all joint tortfeasors are automatically immune from exemplary damages. They would have us read paragraph (a) to provide that a court may not award exemplary damages aga
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