Hernandez et al v. Bumbo (Pty) Ltd et al

Filing 49

Memorandum Opinion and Order granting 42 Motion for Leave to Designate Waikiki Hernandez as a Responsible Third Party. (Ordered by Judge Barbara M.G. Lynn on 3/10/2014) (axm)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

§
CANDIDO HERNANDEZ, SR. and
WAIKIKI HERNANDEZ, Individually and as §
Next Friends and Guardians of C.H., a Minor, §
§
§
Plaintiffs,
§
§
v.
§
§
BUMBO (PTY.) LTD. and BUMBO
§
INTERNATIONAL TRUST f/k/a
§
JONIBACH MANAGEMENT TRUST,
§
§
Defendants.

No. 3:12-cv-1213-M

MEMORANDUM OPINION & ORDER
Before the Court is the Motion of Defendants Bumbo (Pty.) Ltd. and Bumbo
International Trust (collectively “Bumbo”) for Leave to Designate Waikiki Hernandez a
Responsible Third Party with respect to the claims of the minor Plaintiff, C.H. [Docket Entry
#42]. For the reasons stated below, the Motion is GRANTED.
I. BACKGROUND
In this products liability action, Defendants have moved under Section 33.004 of the
Texas Civil Practice and Remedies Code (“CPRC”) for leave to designate Waikiki Hernandez as
a responsible third party with respect to the claims of her minor son and Plaintiff, C.H.
Defendants claim that Mrs. Hernandez’s use of the Bumbo Seat on a raised surface was an
improper use of the product, and contrary to the warnings that accompanied the product.
Defendants seek to designate Mrs. Hernandez as a responsible third party so that the jury may
determine whether, and to what extent, she shares in the responsibility for C.H.’s fall and
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injuries. In response, Plaintiffs contend that the Motion should be denied because (1) the
applicable statute of limitations has expired; (2) the doctrine of parental immunity bars Mrs.
Hernandez being designated as a responsible third party; and (3) Mrs. Hernandez cannot be
designated a responsible third party because she is already a party to this lawsuit.
II. LEGAL STANDARD
Chapter 33 of the CPRC applies to all common law torts and statutory torts that do not
have a separate and conflicting fault-allocation scheme. Tex. Civ. Prac. & Rem. Code § 33.002;
JCW Elec., Inc. v. Garza, 257 S.W.3d 701, 704-07 (Tex. 2008). The statute applies to federal
diversity cases under the Erie Doctrine, as it is state substantive law that does not conflict with
Rule 14 of the Federal Rules of Civil Procedure, the closest federal procedural counterpart.
Nationwide Lloyds Ins. Co. v. Norcold, Inc., Nos. 09-0113 & 09-0114, 2009 WL 3381523, at *2
n.1 (W.D. Tex. Oct. 19, 2009); Harris Constr. Co. v. GG-Bridgeland, LP, No. 07-3468, 2009
WL 2486030, at *1 n.1 (S.D. Tex. Aug. 10, 2009).
Chapter 33 provides that “[a] defendant may seek to designate a person as a responsible
third party by filing a motion for leave to designate that person as a responsible third party.” Tex.
Civ. Prac. & Rem. Code § 33.004(a). Under Chapter 33, a defendant may liberally designate
responsible third parties, including parties not subject to the court’s jurisdiction, unknown
parties, and parties immune from suit. Id. § 33.004(j); In re Unitec Elevator Servs. Co., 178
S.W.3d 53, 58 n.5 (Tex. App.—Houston [1st Dist.] 2005, no pet.). If the court provides leave to
designate a responsible third party, and there is evidence sufficient to submit a jury question
regarding the party’s conduct, the trier of fact determines the percentage of responsibility “by
any combination” of claimants, defendants, settling persons, and designated responsible third
parties. Tex. Civ. Prac. & Rem. Code § 33.003; Dhaliwal v. Vanguard Pharm. Mach., Inc., No.

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08-2452, 2010 WL 231755, at *1 (S.D. Tex. Jan. 20, 2010).
Once a defendant has moved for leave to designate a responsible third party, a plaintiff
may object in a timely fashion. Tex. Civ. Prac. & Rem. Code § 33.004(f). Once the plaintiff
objects, the court must grant leave to designate the person as a responsible third party “unless the
objecting party establishes: (1) the defendant did not plead sufficient facts concerning the alleged
responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil
Procedure; and (2) after having been granted leave to replead, the defendant [still] failed to plead
sufficient facts.” Id. § 33.004(g).
III. ANALYSIS
A.

Defendants’ Motion Is Not Untimely Under Section 33.004(d) of the CPRC
Plaintiffs maintain that the statute of limitations on Mrs. Hernandez’s individual

bystander cause of action expired on November 24, 2013, and argue that Defendants’ motion,
which was filed on November 25, 2013, is therefore time-barred under Section 33.004(d). The
full text of Section 33.004(d) states:
A defendant may not designate a person as a responsible third party with respect
to a claimant’s cause of action after the applicable limitations period on the cause
of action has expired with respect to the responsible third party if the defendant
has failed to comply with its obligations, if any, to timely disclose that the person
may be designated as a responsible third party under the Texas Rules of Civil
Procedure.
Id. § 33.004(d) (emphasis added).
Plaintiffs, as an initial matter, have not alleged that Defendants have failed to comply
with any obligations to “disclose” that Mrs. Hernandez may be designated as a responsible third
party. Furthermore, the relevant limitations period in Section 33.004(d) is specific to the
“claimant’s cause of action.” Id. Here, Defendants’ motion is limited to the claims of Mrs.
Hernandez’s minor son and Plaintiff, C.H, and does not concern Mrs. Hernandez’s individual
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bystander claim. Plaintiffs do not allege that the statute of limitations for C.H.’s claims has
expired.
However, even if Mrs. Hernandez’s bystander claim were relevant to the analysis,
Defendants’ motion would still be timely, because November 24, 2013 was a Sunday. The CPRC
provides that “[i]f the last day of a limitations period under any statute of limitations falls on a
Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day . . . .”
Tex. Civ. Prac. & Rem. Code § 16.072. Since Defendants’ Motion was filed on Monday,
November 25, 2013, the Motion would be timely even if it were limited to Mrs. Hernandez’s
bystander claim.
B.

Mrs. Hernandez’s Designation as a Responsible Third Party Is Not Precluded by the
Doctrine of Parental Immunity.
Plaintiffs also allege that the doctrine of parental immunity prohibits the designation of

Mrs. Hernandez as a responsible third party to the claims of C.H. under Chapter 33 of the CPRC.
Although Plaintiffs are correct that the parental immunity doctrine applies generally under Texas
law, Plaintiffs’ cited authority does not concern parental immunity in the context of responsible
third party designations made after the 2003 amendments to Chapter 33.
Previously, Chapter 33 required that the person designated be someone who could be
held liable—i.e., someone not immune from suit by the plaintiff. Fisher v. Halliburton, Nos. 051731 & 06-1971, 2009 WL 1098457, at *4 (S.D. Tex. Apr. 23, 2009), rev’d on other grounds,
667 F.3d 602, 621-22 (5th Cir. 2012). However, in 2003, the Texas Legislature “significantly
liberalized who could be designated as a responsible third party,” and since then, the statute has
allowed defendants to designate “parties [who are] not subject to the court’s jurisdiction, immune
from suit or who are unknown.” Nationwide Lloyds, 2009 WL 3381523, at *2 (quotation
omitted) (emphasis added); see also Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d
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863, 868 n.6 (Tex. 2009) (“The 2003 amendments substantially broadened the meaning of the
term ‘responsible third party’ . . . regardless of whether . . . there is some other impediment to the
imposition of liability on them, such as a statutory immunity.”) (quoting 19 Dorsaneo, Texas
Litigation Guide § 291.03[2][b][i]).
Under Chapter 33 as it now exists, traditional immunity defenses under Texas law,
including parental immunity, do not prevent responsible third party designations. See Fisher v.
Halliburton, 667 F.3d 602, 621-22 (5th Cir. 2012) (“Even parties ‘who . . . are immune from
liability to the claimant’ can be designated responsible third parties under the statute.”); In re
Unitec, 178 S.W.3d at 58 n.5 (“a responsible third party may include persons . . . who are
immune from liability to the claimant”); David W. Holman, Responsible Third Parties, 46 S.
Tex. L. Rev. 869, 885 (2005) (noting that a “claimant’s parents whom the claimant cannot sue
because of parental immunity” may now be submitted as a responsible third party after the 2003
amendments). Therefore, the doctrine of parental immunity does not preclude Mrs. Hernandez’s
designation as a responsible third party under Chapter 33 of the CPRC.
C.

Despite Being A Party to the Case, Mrs. Hernandez May Be Designated as a
Responsible Third Party with Respect to the Claims of the Minor, C.H.
Plaintiffs allege that because Mrs. Hernandez is already a party to the lawsuit, Defendants

cannot designate her as a responsible third party. Defendants assert that while Mrs. Hernandez is
a party to this lawsuit through her individual bystander claim, she is not a party to the claims of
the minor Plaintiff C.H., for which Defendants seek to designate her a responsible third party,
because she is merely bringing those claims as the next friend and guardian of C.H.
Nevertheless, Chapter 33 still classifies Mrs. Hernandez as a “claimant” with respect to C.H.’s
claims, because its definition of “claimant” encompasses both “the person who was injured” and
“any person who is seeking . . . recovery of damages for the injury. . . of that person.” Tex. Civ.
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Prac. & Rem. Code § 33.011(1). There is, however, little authority as to whether a claimant,
particularly a guardian bringing a claim on behalf of a minor plaintiff, may nonetheless be
designated a responsible third party.
Plaintiffs rely on Flack v. Hanke, 334 S.W.3d 251, 254 (Tex. App.—San Antonio 2010,
pet. denied). In Flack, defendant Hanke designated two law firms—Langley & Banack and Cox
Smith—as responsible third parties under Chapter 33. Id.at 255. Shortly thereafter, plaintiff
Flack and defendant Hanke jointly moved to add the two law firms as defendants. Id. After
granting that motion, the trial court signed an agreed order dismissing Hanke, leaving the two
law firms as the only remaining defendants in the case. Id. Langley & Banack then moved to
strike its previous designation as a responsible third party by Hanke. Id. The trial court granted
the motion, but the appellate court overturned this decision on the grounds that allowing Langley
& Banack, which was then a defendant, to strike the prior designation of it as a responsible third
party, would contradict the plain meaning of Section 33.004(l):
After adequate time for discovery, a party may move to strike the designation of a
responsible third party on the ground that there is no evidence that the designated
person is responsible for any portion of the claimant’s alleged injury or damage.
The court shall grant the motion to strike unless a defendant produces sufficient
evidence to raise a genuine issue of fact regarding the designated person’s
responsibility for the claimant’s injury or damage.
Id. at 262. The appellate court emphasized that this provision lacks any mechanism for a
responsible third party to challenge its designation. Flack, 334 S.W.3d at 262. The appellate
court held that Langley & Banack could not strike itself as a responsible third party because
under Chapter 33, the only entity that could possibly respond to such a motion is “a defendant
produc[ing] sufficient evidence” as to the designated person’s responsibility. Id. The court
reasoned that with Hanke, the defendant who designated Langley & Banack, dismissed from the
case, “[i]t would be illogical to assume Langley & Banack, as a defendant, would raise an issue
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against” its own motion and that “such an interpretation would permit defendants to re-litigate
their designation of [responsible third parties]—which the statute does not permit.” Id. at 262.
Here, however, Defendants are not attempting to contest designation of them as responsible third
parties. Instead, they are attempting to designate Mrs. Hernandez as a responsible third party, and
she would not, as Langley & Banack were, be placed on both sides of a single motion in
contravention of the statute. Therefore, the concerns expressed in Flack are not at issue here.
The parties also each cite to unpublished orders in support of their positions. Plaintiffs
cite to an order in Ferrell v. Bumbo (Pty.) Ltd., in which the court denied a similar motion to
designate the parents of a minor plaintiff as responsible third parties on the basis that Chapter 33
“clearly distinguishes between ‘claimants’ and ‘responsible third part[ies]’” and that plaintiffs
were “first parties, having brought the case in the first place.” No. A-11-CA-467-SS (W.D. Tex.
Feb. 21. 2012) (quoting Tex. Civ. Prac. & Rem. Code. §§ 33.004(a)(1), (4)). Defendants respond
that in a similar case, Blythe v. Bumbo Int’l Trust, No. 6:12-CV-00036 (S.D. Tex. Nov. 5, 2013),
the court granted the defendants’ motion to designate the minor plaintiff’s mother as a
responsible third party, despite the fact that she was a plaintiff in the case.1 Defendants also note
two other instances in which federal courts in Texas have granted motions to designate parents
bringing claims on behalf of minor children as responsible third parties, even though the parents
were also asserting claims individually; however, these motions were unopposed. See Stanley v.
Target Corp., No. H-07-03680 (S.D. Tex. June 3, 2008); Mix v. Target Corp., No. 3:09-cv00382-PRM (W.D. Tex. Aug. 2, 2010).
The differences between the pre- and post-2003 amendment versions of the CPRC are
instructive in deciding this issue. Before 2003, the CPRC restricted designations of responsible
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The court in Blythe apparently did not sign an order, but instead, ruled on the record, and no transcript has been
furnished to the Court. However, Mrs. Hernandez’s counsel also represented the plaintiffs in Blythe, and Plaintiffs
do not dispute Defendants’ account of the ruling.

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parties to persons “to whom all of the following apply: (1) the court in which the action was filed
could exercise jurisdiction over the person; (2) the person could have been, but was not, sued by
the claimant; and (3) the person is or may be liable to the plaintiff for all or part of the damages
claimed against the named defendant or defendants.” In re Unitec, 178 S.W.3d at 58 n.5. In its
current form, however, the CPRC lacks such restrictions and explicitly defines a responsible
third party as “any person” alleged to have caused or contributed to harm. Tex. Civ. Prac. &
Rem. Code. §§ 33.004(a), 33.011(6).
The purpose of the 2003 amendments to the requirements for designating responsible
third parties was to liberalize who may be so designated, such that the jury may be permitted to
consider the extent to which each involved entity is at fault, regardless of the extent to which the
plaintiff could actually recover against such an entity. Fisher v. Halliburton, 2009 WL 1098457,
at *3 (describing “the legislature’s expansive intentions” with regard to Chapter 33); Galbraith,
290 S.W.3d at 868 n.6 (noting that while the 1995 proportionate responsibility legislation
contained several limitations on responsible third party designations, the 2003 amendments
“substantially broadened” the meaning of responsible third parties to eliminate those restrictions
and to allow the jury to allocate responsibility among all persons potentially responsible);
Holman, supra, at 884 (describing the new rule as a “veritable free-for-all, with submission of
‘. . . unidentified defendants, phantom vehicles, subcontractors . . . whose names can’t be
remembered,’ and so forth”) (quoting Tort Reform of 2003: Hearings on Tex. H.B. 4 Before the
Senate Comm. on State Affairs, 78th Leg., R.S. (Apr. 10, 2003), reprinted in 2 Legislative
History of Texas H.S. 4: The Medical Malpractice & Tort Reform Act of 2003, at 1304 (2003)).
Accordingly, in furtherance of this goal, courts should permit the designation of
responsible third parties where those parties’ alleged fault could not otherwise be considered.

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Here, Mrs. Hernandez’s assertion of parental immunity would preclude Defendants from
asserting any claim for contribution against her, thereby making a claim by Defendants against
her legally untenable. See Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107, at *2
(Tex. App.—Corpus Christi 2009, no pet.) (“[W]here the parental immunity doctrine bars legal
action by a child against his parents, that child’s recovery from other defendants is not reduced
by his parents’ percentage of negligence.”) (quotation omitted). Since Mrs. Hernandez’s
assertion of parental immunity would prevent a jury from considering the extent of her liability
in the contributory negligence context, allowing Mrs. Hernandez to be designated as a
responsible third party would not be “superfluous,” as Plaintiffs claim. Rather, it would facilitate
the goals behind the 2003 amendments to the CPRC, by allowing pursuit of the only mechanism
by which such alleged fault could be considered. See Galbraith, 290 S.W.3d at 868 n.6
(concluding that “[t]he thrust of the statute is that the jury should allocate responsibility among
all persons who are responsible ”) (emphasis added) (quoting 19 Dorsaneo, Texas Litigation
Guide § 291.03[2][b][i]).
In Ferrell, the parents of the minor plaintiff were also plaintiffs and were not asserting
parental immunity, and the court there underscored the fact that the defendants’ motion to
designate was redundant because the trier of fact was already required to consider the degree of
responsibility attributed to the parents. No. A-11-CA-467-SS (W.D. Tex. Feb. 21, 2012). In
contrast, in this case if the Court were to deny Defendants’ Motion, the trier of fact will have no
other means of apportioning the alleged fault of Mrs. Hernandez for C.H.’s injuries, thereby
frustrating the goals of the 2003 amendments to the CPRC.
Therefore, because (1) Defendants’ motion was timely; (2) Mrs. Hernandez’s designation
is not precluded by parental immunity; and (3) her designation as a responsible third party would

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be consistent with the aims of the 2003 amendments to the CPRC, the Court GRANTS
Defendants’ motion and designates Waikiki Hernandez as a responsible third party.
SO ORDERED.
March 10, 2014.

_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS

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