                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-06-00256-CV

MCI SALES AND SERVICE, INC.,
F/K/A HAUSMAN BUS SALES, INC.,
AND MOTOR COACH INDUSTRIES
MEXICO, S.A. DE C.V., F/K/A
DINA AUTOBUSES, S.A. DE C.V.,
                                                              Appellants
v.

JAMES HINTON, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE
OF DOLORES HINTON, DECEASED, ET AL.,
                                                              Appellees



                           From the 170th District Court
                             McLennan County, Texas
                            Trial Court No. 2003-2308-4


                                      OPINION


       The appeal of this products liability case primarily raises issues of federal

preemption, legal sufficiency of the evidence, and proportionate responsibility. Finding

that the trial court abused its discretion by not asking the jury to find the bus driver’s or

his employer’s proportionate responsibility as settling parties, we will reverse and
remand.

                                     I. Background

       This “crashworthiness” case arises from an accident involving a “motor coach”

passenger bus near Waco on February 14, 2003. The passengers had boarded a bus

chartered by Central Texas Trails and driven by Johnny Cummings to take them from

Temple to Dallas.     As the bus headed north on Interstate 35 (I-35), the weather

conditions were overcast with reduced visibility due to fog, haze, and heavy rain. As

the bus crested a hill just south of Waco, Cummings saw cars stopped ahead because a

prior accident had caused northbound I-35 to be shut down. Instead of trying to stop in

time to avoid hitting the stopped traffic ahead, Cummings steered to the left and drove

the bus across the earthen median into the southbound lanes of I-35. The bus slammed

head-on into a large SUV, instantly killing two of its occupants. The impact caused the

bus to spin counterclockwise, tip over on its right side, and slide to a stop over the ditch

between southbound I-35 and the west access road. Five passengers on the bus were

killed, and many were injured.

       The bus occupants and their relatives—many of whom are the Plaintiffs below

and the Appellees here—made claims against the bankruptcy estates of the bus

owner—Central Texas Trails, Inc., Central Texas Bus Lines, Inc., and Kincannon

Enterprises (collectively Central Texas)—and Cummings, a Central Texas employee.

The liability insurance carrier for Central Texas and Cummings paid its $5 million in

policy limits into the registry of the bankruptcy court to be held and distributed among

those who had asserted claims against Central Texas and Cummings in accordance with

MCI v. Hinton                                                                         Page 2
the bankruptcy court’s “Apportionment Plan” and “Litigation Plan.”

        The Plaintiffs then sued MCI Sales and Service Inc. and Motor Coach Industries

Mexico, S.A. de C.V. (MCI), alleging that the bus was defectively designed and

unreasonably dangerous because it was not equipped with three-point passenger

seatbelts or with laminated glass passenger windows. 1 The case went to trial against

only MCI, which had imported, assembled, and sold the bus to Central Texas. The trial

court rejected MCI’s attempts to join Central Texas and Cummings as responsible third

parties and also refused to submit a question to the jury asking if they were liable as

responsible third parties or settling parties for a proportionate liability determination.

A jury found MCI liable and awarded approximately $17 million in damages to the

Plaintiffs.

        After the trial but before the final judgment was signed, and under the

bankruptcy court’s Litigation Plan, a special judge conducted a private hearing in which

Cummings was found negligent and findings were made allocating the insurance

proceeds among the claimants. After the bankruptcy court approved the findings, MCI

moved the state trial court for settlement credits for the sums paid to the Plaintiffs from

the bankruptcy proceeding. Rather than crediting MCI for those sums, the trial court

entered a final judgment totaling just over $17 million but reciting that it has been

1       MCI joined Marcopolo, S.A., a Brazilian company that manufactured component parts of the bus,
as a responsible third party, and also filed a third-party action against Marcopolo. Marcopolo made a
special appearance, which the trial court sustained, and it severed MCI’s third-party action against
Marcopolo. In MCI’s appeal of the special appearance ruling, we affirmed the trial court’s decision. See
Motor Coach Indus., Inc. v. Marcopolo, S.A., 2007 WL 4157241 (Tex. App.—Waco Nov. 21, 2007, no pet.).
MCI’s eighth issue contends that, if the trial court erred by granting Marcopolo’s special appearance, its
severance of MCI’s third-party action against Marcopolo would have been erroneous and the judgment
should be reversed. Because we affirmed the trial court’s decision on Marcopolo’s special appearance, we
overrule MCI’s eighth issue.

MCI v. Hinton                                                                                      Page 3
“partially satisfied” as to each Plaintiff in the exact amount each received on their

claims in the bankruptcy proceeding. MCI appeals, raising eight issues.

                                 II. Federal Preemption

       We begin with MCI’s third issue, which asserts that the Plaintiffs’ state common-

law defective design claims regarding seatbelts and laminated windows are impliedly

preempted by federal law. The jury found that there was a design defect in the bus at

the time it left MCI’s possession because it did not have passenger safety belts and

because laminated glass was not used in the side passenger windows.

              The laws of the United States are the “supreme Law of the Land . . .
       any Thing in the Constitution or Laws of any State to the Contrary
       notwithstanding.” U.S. CONST. art. VI, cl. 2. If a state law conflicts with
       federal law, it is preempted and has no effect. Maryland v. Louisiana, 451
       U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). A federal law may
       expressly preempt state law. Cipollone v. Liggett Group, Inc., 505 U.S. 504,
       516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Additionally, federal law or
       regulations may impliedly preempt state law or regulations if the statute’s
       scope indicates that Congress intended federal law or regulations to
       occupy the field exclusively or if state law actually conflicts with federal
       law or regulations. Myrick, 514 U.S. at 287, 115 S.Ct. 1483; Moore v.
       Brunswick Bowling & Billiards Corp., 889 S.W.2d 246, 247-48 (Tex. 1994).
       State law presents an actual conflict with federal law when: (1) it is
       impossible for a private party to comply with both state and federal
       requirements; or (2) state law obstructs accomplishing and executing
       Congress’ full purposes and objectives. See Myrick, 514 U.S. at 287, 115
       S.Ct. 1483 (citing English, 496 U.S. at 79, 110 S.Ct. 2270 and Hines v.
       Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)).

              The United States Supreme Court limits the preemption doctrine by
       presuming that Congress did not intend to displace state law. See
       Maryland, 451 U.S. at 746, 101 S.Ct. 2114; Jones v. Rath Packing Co., 430 U.S.
       519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). Historically, states have
       exercised primary authority in matters involving their citizens’ public
       health and safety. Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S.Ct. 2240,
       135 L.Ed.2d 700 (1996). Thus, this presumption is nowhere stronger than
       under circumstances in which the states are exercising that authority. See

MCI v. Hinton                                                                           Page 4
       Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 718-19, 105
       S.Ct. 2371, 85 L.Ed.2d 714 (1985). Common-law actions based upon
       negligence and products liability involve the state’s power to regulate
       health and safety matters. See Moore, 889 S.W.2d at 249. Accordingly, the
       party urging preemption has the difficult burden of overcoming the
       presumption against preemption. See Silkwood v. Kerr McGee Corp., 464
       U.S. 238, 255, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984) (stating that the party
       urging preemption has the burden of proof).

Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex. 2001); see also Sprietsma

v. Mercury Marine, 537 U.S. 51, 64-65, 123 S.Ct. 518, 527, 154 L.Ed.2d 466 (2002); Turoff v.

McCaslin, 222 S.W.3d 664, 668 (Tex. App.—Waco 2007, no pet.).

       MCI argues that the seatbelt and laminated-window design defect claims are

impliedly preempted because they conflict with federal motor vehicle regulations. The

Texas Supreme Court has on at least two occasions summarized the history of the

National Traffic and Motor Vehicle Safety Act, the statutory source for those

regulations. See Great Dane, 52 S.W.3d at 742; Hyundai Motor Co. v. Alvarado, 974 S.W.2d

1, 3-4 (Tex. 1998). We quote from Great Dane:

              In 1966, Congress enacted the Safety Act, implemented under the
       National Highway Traffic Safety Administration’s authority. The Safety
       Act’s explicit purpose is “to reduce traffic accidents and deaths and
       injuries to persons resulting from traffic accidents.” 15 U.S.C. § 1381
       (recodified at 49 U.S.C. § 30101). To accomplish this purpose, Congress
       empowered the Secretary of Transportation to adopt motor vehicle safety
       standards. 15 U.S.C. § 1392(a) (recodified at 49 U.S.C. § 30111(a)). These
       standards must be “reasonable, practicable and appropriate.” See 15
       U.S.C. § 1392(f)(3) (recodified at 49 U.S.C. § 30111(b)(3)). Additionally, the
       standards must meet the need for motor vehicle safety and be stated in
       objective terms. See 15 U.S.C. § 1392(a) (recodified at 49 U.S.C. § 30111(a)).
       The standards the Secretary adopts under the Safety Act are,
       fundamentally, performance requirements, not design requirements. See
       Perry v. Mercedes Benz, Inc., 957 F.2d 1257, 1260 (5th Cir. 1992). In fact, the
       Safety Act’s legislative history states:


MCI v. Hinton                                                                            Page 5
           [T]he new and revised standards are expected to be performance
           standards, specifying the required minimum safe performance of
           vehicles but not the manner in which the manufacturer is to achieve
           the specified performance. . . . The Secretary would thus be
           concerned with the measurable performance of a . . . system but not
           its design details.

        S. REP. NO. 89-1301, at 4 (1966), reprinted in 1966 U.S.C.C.A.N. 2709, 2712.

Great Dane, 52 S.W.3d at 742 (footnote omitted).

A. Seatbelts

        MCI contends that the Plaintiffs’ seatbelt claims are impliedly preempted by

FMVSS 208, the federal regulation applicable to safety systems for buses, and by

NHTSA’s rejections of a standard that would require passenger seatbelts on buses.2 See

49 C.F.R. § 571.208. Rule S4.4.3.1 of FMVSS 208 requires that each bus with a gross

vehicle weight rating of more than 10,000 pounds comply with the requirements of

Rules S4.4.2.1 or S4.4.2.2. Both of those rules require either a “complete passenger

protection system” or a “belt system,” but only for the bus driver. FMVSS 208 does not

require passenger seatbelts or address the specific passenger compartmentalization

standards for motor coach buses. The two rules expressly mandate belt restraint for the

driver only. The parties agree that FMVSS 208 does not require the installation of

passenger seatbelts or regulate compartmentalization for passenger protection in motor

coach buses.      Compartmentalization is required and regulated in school buses by



2       Two Texas Supreme Court decisions have addressed the implied preemption of state common-
law tort claims by federal motor vehicle safety standards: Hyundai Motor Co. v. Alvarado, 974 S.W.2d 13
(Tex. 1998) (holding that the Safety Act and FMVSS 208 did not expressly or impliedly preempt a tort
claim based on the manufacturer’s failure to install lap belts); and Great Dane Trailers, Inc. v. Estate of
Wells, 52 S.W.3d 737, 744-49 (Tex. 2001) (holding that the Safety Act and FMVSS 108 did not impliedly
preempt common-law “conspicuity” tort based on inadequate lighting and reflectors on truck trailer).

MCI v. Hinton                                                                                       Page 6
FMVSS 222, but that standard does not apply to motor coach buses.

       1. Compliance Impossibility

       The Plaintiffs point out what MCI essentially concedes: FMVSS 208 is silent

regarding motor coach passenger protection; it does not regulate seatbelts or

compartmentalization for motor coach passengers. Citing the concurring testimony of

Virgil Hoogestraat, MCI’s Vice President of Engineering, the Plaintiffs highlight that

federal regulations neither forbid nor require the installation by MCI of passenger

seatbelts in its motor coach buses, and Hoogestraat admitted that MCI could install

passenger seatbelts if it chose. Plainly, therefore, it would not be impossible for MCI to

install passenger seatbelts and be in compliance with federal regulations. See Sprietsma,

537 U.S. at 64-65, 123 S.Ct. at 527 (“We have found implied conflict pre-emption where

it is ‘impossible for a private party to comply with both state and federal

requirements,’”. . .).

       2. Frustration of Federal Purpose

       MCI next contends that the Plaintiffs’ seatbelt claims are impliedly preempted

because NHTSA “considered and has repeatedly and expressly rejected” a federal

standard that would require passenger seatbelts on “buses.” In 1973, NHTSA began to

study whether to enact regulations requiring seatbelts in school buses, intercity buses,

and transit buses and initially proposed a standard that provided bus manufacturers

with the option of installing passenger seatbelts with a warning system to signal the

passenger and driver when a passenger’s seatbelt was unbuckled. See 38 Fed. Reg. 4776

(Feb. 22, 1973); 39 Fed. Reg. 27,585 (July 30, 1974). But one year later, NHTSA withdrew

MCI v. Hinton                                                                       Page 7
that proposed standard for intercity and transit buses, citing cost/benefit studies of the

present seating performance: “Injury statistics for intercity buses indicate that seating

improvement would not reduce injuries substantially.          Seat belt usage surveys in

intercity buses also indicate that a very low percentage of passengers would utilize seat

belts if they were provided.” 39 Fed. Reg. 27,585. NHTSA also expressly eliminated the

option of permitting bus manufacturers to install seatbelts on school buses, determining

that   a   passive   system    of   occupant    containment    by   the   seating   system

(compartmentalization) or a restraining barrier offered the most reliable crash

protection in a school bus. Id. at 27,585-86.

       Next, in 1983, NHTSA denied a petition for rulemaking that would have

mandated the installation of seatbelts on school buses. 48 Fed. Reg. 47,032 (Oct. 17, 1983).

And finally, in 1992, in response to an inquiry from MCI, NHTSA’s chief counsel

concluded that a proposed New York statute requiring seatbelts in intercity buses

appeared to be preempted by FMVSS 208. As a result of the above, MCI thus concludes

that the imposition of a state common-law duty on motor coach bus manufacturers to

install passenger seatbelts would obstruct or frustrate a federal purpose.

       We agree with the Plaintiffs that none of NHTSA’s actions present a clear

indication of a conscious federal policy against passenger seatbelts in motor coach

buses. Regarding the 1973 and 1974 actions, the Plaintiffs note the low percentage of

general seatbelt usage then (10-15%), whereas current seatbelt usage rates exceed 80%.

And as for NHTSA’s 1983 denial of the petition to require seatbelts in school buses, it is

clear that that decision was based on policy considerations unique to school buses and

MCI v. Hinton                                                                         Page 8
child passengers, along with NHTSA’s mandated compartmentalization for school

buses as a passive form of passenger protection. Finally, NHTSA’s chief counsel’s

conclusion in 1992 that the proposed New York statute requiring seatbelts in intercity

buses appeared to be preempted by FMVSS 208 would implicate only the express

preemption clause of the Safety Act. See 49 U.S.C. § 30103(b)(1). State legislation or

regulation is expressly preempted unless it is identical to the federal standard. See Geier

v. American Honda Motor Co., 529 U.S. 861, 868, 120 S.Ct. 1913, 1918, 146 L.Ed.2d 914

(2000); Great Dane, 52 S.W.3d at 741.

       In conclusion, the 35-year-old NHTSA decision not to require passenger seatbelts

in motor coach buses and NHTSA’s actions regarding school buses do not persuade us

that a conscious federal policy opposes passenger seatbelts in motor coach buses. We

see no expressed opposition to the installation of passenger seatbelts in motor coaches,

and Carl Nash, who was a senior executive with NHTSA for eighteen years, testified

that passenger seatbelts are not prohibited or even discouraged by the federal

government.3 In fact, in 1989, seven years before the MCI bus at issue was sold, MCI

asked NHTSA to provide guidance on how to anchor seatbelts in an MCI motor coach.

NHTSA declined to provide specific guidance, noting: “Federal law leaves the question

of how any such anchorages should be designed entirely up to the judgment of the bus

manufacturer.” And finally, as discussed in more detail below, the absence of federal

regulation or the decision not to take regulatory action is not preemptive in this case.


3       While not determinative, we note that the National Transportation Safety Board, which
investigates transportation accidents but has no regulatory power in the area of safety standards for
motor vehicles, has repeatedly recommended passenger seatbelts for motor coaches since 1968.

MCI v. Hinton                                                                                 Page 9
See Sprietsma, 537 U.S. at 64-68, 123 S.Ct. at 527-29; Freightliner Corp. v. Myrick, 514 U.S.

280, 286-87, 115 S.Ct. 1483, 1487, 131 L.Ed.2d 385 (1995).

       Because there has been no clear federal expression of opposition to the

installation of passenger seatbelts in motor coaches, we cannot say that a state common-

law duty in tort to install passenger seatbelts is impliedly preempted; such a duty does

not frustrate or “stand as an obstacle to the accomplishment and execution” of federal

purposes and objectives.      Therefore, in this respect, MCI has not met the difficult

burden of overcoming the presumption against preemption. See Great Dane, 52 S.W.3d

at 743 (citing Silkwood, 464 U.S. at 255, 104 S.Ct. at 625).

       3. The Geier Approach

       Finally, relying on Geier v. American Honda, MCI argues that the Plaintiffs’ state

common-law seatbelt claims are preempted because allowing them forecloses an option

or choice left open by FMVSS 208 and NHTSA’s actions relating to bus-passenger

safety. In Geier, the plaintiffs claimed that a passenger-car manufacturer, who was in

compliance with the federal standard, was nonetheless liable because it did not equip a

1987 vehicle with airbags.      At the relevant time in Geier, FMVSS 208 required car

manufacturers to equip some, but not all, 1987 vehicles with passive restraints. The

version of FMVSS 208 at that time required manufacturers to equip only 10% of their

car fleet manufactured after September 1, 1987 with passive restraints, and it increased

that percentage to 100% in three annual stages.           The standard explained that the

phased-in requirement and the variety and mix of passive-restraint devices were

deliberate to allow more time for manufacturers to develop airbags and other safer

MCI v. Hinton                                                                         Page 10
devices. Geier, 529 U.S. at 878-79, 120 S.Ct. at 1924.

        After reviewing the history of FMVSS 208, the Court concluded that it reflects the

Transportation Secretary’s policy that safety would be best promoted if manufacturers

installed alternative passive-restraint systems in their cars rather than one particular

system in every car. Id. at 881, 120 S.Ct. at 1925. On the other hand, the Court noted,

the plaintiffs’ common-law claims were based on the presumption that all cars had to

have airbags even if they had some other passive-restraint device. Id. The common-law

claims thus presented an obstacle to manufacturers using the variety and mix of

passive-restraint devices (airbags, automatic seatbelts, etc.) that FMVSS 208 sought to

promote and an obstacle to the gradual passive restraint phase-in that it deliberately

imposed. Id. at 878-82, 120 S.Ct. at 1924-26. The Court noted that Congress and NHTSA

had expressed a preference for giving car manufacturers a choice between airbags and

other safety devices for the period of time in which the plaintiffs’ car was

manufactured. Id. at 878-81, 120 S.Ct. at 1924-25. Accordingly, the Court held that the

Safety Act and FMVSS 208 impliedly preempted the plaintiffs’ common-law claims

because they “stood ‘as an obstacle to the accomplishment and execution of’ the

important means-related federal objectives.”4 Id. at 881-82, 120 S.Ct. at 1925 (quoting

Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)).

        MCI, attempting to come within the Geier framework, contends that allowing the

imposition of a common-law duty to install passenger seatbelts forecloses the option of

4       The Court also construed the Safety Act’s preemption clause and saving clause together,
concluding that the Safety Act does not expressly preempt “nonidentical state standards established in tort
actions covering the same aspect of performance as an applicable federal standard.” Geier, 529 U.S. at
868, 120 S.Ct. at 1918.

MCI v. Hinton                                                                                      Page 11
using compartmentalization as the primary passenger safety system in motor coach

buses. MCI postulates that federal regulations give the bus industry a choice of two

systems for restraining passengers:              a passive system (compartmentalization) or a

forced system (seatbelt). MCI thus concludes that the trial court’s judgment imposes a

state common-law duty to install seatbelts and removes MCI’s option to use

compartmentalization, in conflict with the alleged federal regulatory scheme.

        We do not see, however, a regulatory scheme for motor coach bus passenger

safety remotely similar to that for airbags such that MCI’s theory fits within the Geier

template. Cf. BIC Pen Corp. v. Carter, 251 S.W.3d 500, 503-09 (Tex. 2008) (applying Geier-

type analysis in review of extensive regulatory scheme for child-resistant cigarette

lighters similar to that in Geier and holding the design-defect claim relating to cigarette

lighter was impliedly preempted). Implied conflict preemption in Geier was premised

on the federal government’s clear and deliberate policy against requiring all cars to

have airbags, instead opting for a gradual phase-in using a variety of passive protection

devices that carmakers could choose from. Here, and unlike the version of FMVSS 208

at issue in Geier (which specifically granted passive restraint design options for

carmakers), there is no federal regulation that addresses passenger seatbelts in motor

coach buses.5         Nor is there a federal regulation addressing the motor coach



5        And as we stated above, there has been no clear federal expression of opposition to the
installation of passenger seatbelts in motor coaches. In fact, the Plaintiffs have asked us to take judicial
notice on appeal of NHTSA’s most recent motor coach safety paper that contradicts MCI’s recitation of
NHTSA’s view of passenger seatbelts in motor coach buses. See TEX. R. EVID. 201; Office of Pub. Util.
Counsel v. P.U.C., 878 S.W.2d 598, 600 (Tex. 1994) (court of appeals erred in refusing to take judicial notice
of published P.U.C. order) (“To be the proper subject of judicial notice, a fact must be ‘capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’ TEX. R.

MCI v. Hinton                                                                                        Page 12
compartmentalization choice that MCI claims it was entitled to choose instead of

seatbelts.    What does exist is a compartmentalization standard—FMVSS 222—that

indisputably applies only to school buses. We thus reject MCI’s Geier approach.

        MCI’s implied preemption argument using Geier is further flawed because the

absence of federal regulation is not preemptive in this case. Two cases highlight that

flaw. In Freightliner v. Myrick, the plaintiffs alleged that tractor-trailers manufactured by

the defendants were defective because they lacked an antilock-braking system (ABS).

Myrick, 514 U.S. at 282, 115 S.Ct. at 1485. FMVSS 121, the applicable standard, did not

include any requirement or prohibition regarding ABS. Id. at 286, 115 S.Ct. at 1487. The

Court held that “the absence of a federal standard cannot implicitly extinguish state

common law.” Id. at 282, 115 S.Ct. at 1485.

        The Supreme Court addressed the “absence of regulation” question again in

Sprietsma v. Mercury Marine, which involved a product liability claim that a boat engine

CIV. EVID. 201. Judicial notice is mandatory if ‘requested by a party and [the court is] supplied with the
necessary information.’ TEX. R. CIV. EVID. 201. A court of appeals has the power to take judicial notice for
the first time on appeal.”).
          That paper is a NHTSA document released on August 6, 2007, entitled “NHTSA’s Approach to
Motorcoach Safety,” authored by Roger A. Saul, NHTSA’s director of its Office of Crashworthiness
Standards, and filed in NHTSA’s Docket No. 2007-28793 (“Motorcoach Safety Plan”) (available at
http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/Vehicle%20Safety/Articles/Associated%20Files/4
81217.pdf). It begins by noting its goal: “to present a comprehensive review of motorcoach safety issues
and the course of action the National Highway Traffic Safety Administration will pursue to most
expediently address them.” Id. at 1. Regarding seatbelts, the paper states:
                  Seat belts are another approach for potential improved motorcoach occupant
          protection in crashes. Installing seat belts would be the most direct method of retaining
          passengers within the seating compartment. . . . Seat belts could also potentially provide
          protection in multiple crash modes, including rollover, and prevent ejection.
                  Both Australia and Europe require seat belts on motorcoaches. Australian
          Design Rule (ADR) 68 has required lap and shoulder belts since 1994. In Europe, ECE
          R.80 Amendment 1 has required a lap belt or a lap/shoulder belt since 1998.
Id. at 12-13.
          The seatbelt section of the paper concludes with NHTSA’s planned approach of conducting crash
tests to obtain information to develop FMVSS 210-type performance requirements for the seatbelt
assembly and seat anchorages. Id. at 14.

MCI v. Hinton                                                                                       Page 13
should have been equipped with a propeller guard. Sprietsma, 537 U.S. at 54, 123 S.Ct.

at 522. The applicable federal regulation did not require or prohibit propeller guards.

Id. at 65, 123 S.Ct. at 527. After recognizing that the Coast Guard had considered

propeller guard regulation but decided not to adopt one requiring propeller guards, a

unanimous Supreme Court held that the decision not to adopt a regulation did not

impliedly preempt a state common-law claim:

               We first consider, and reject, respondent’s reliance on the Coast
        Guard’s decision not to adopt a regulation requiring propeller guards on
        motorboats. It is quite wrong to view that decision as the functional
        equivalent of a regulation prohibiting all States and their political
        subdivisions from adopting such a regulation. The decision in 1990 to
        accept the subcommittee’s recommendation to “take no regulatory
        action,” App. 80, left the law applicable to propeller guards exactly the
        same as it had been before the subcommittee began its investigation. Of
        course, if a state common-law claim directly conflicted with a federal
        regulation promulgated under the Act, or if it were impossible to comply
        with any such regulation without incurring liability under state common
        law, pre-emption would occur. This, however, is not such a case.

Id. at 67, 123 S.Ct. at 528.

        The Court also distinguished Geier and the regulatory history at issue there; it

noted that although the Coast Guard’s decision not to require propeller guards—which

“presents a sharp contrast to the decision” that was given preemptive effect in Geier—

was undoubtedly intentional and carefully considered, that decision did not convey an

authoritative message of a federal policy against propeller guards.6 Id.


6       MCI also relies on two unpublished trial court decisions that were not appealed: Surles v.
Greyhound Lines, Inc., 2005 WL 1703153 (E.D. Tenn. July 20, 2005), and Schunck v. Delaware Transit Corp.,
2007 WL 1748647 (Del. Super. Ct. June 1, 2007). Surles, like this case, involved a claim that seatbelts
should have been installed on an MCI bus operated by Greyhound. The district court focused—
incorrectly under Sprietsma, in our view—on “whether a common law claim would conflict with the
agency’s reasons for declining to regulate.” Surles, 2005 WL 1703153, at *6. In Sprietsma, the Court took

MCI v. Hinton                                                                                    Page 14
        The Safety Act’s saving clause7 allows state common law to impose higher

standards, assuming they do not actually conflict with federal law or “stand as an

obstacle to the accomplishment and execution” of federal purposes and objectives.

Great Dane, 52 S.W.3d at 746-47 (citing 15 U.S.C. § 1397(k) (recodified at 49 U.S.C. §

30103(e)), and quoting Geier, 529 U.S. at 868, 120 S.Ct. at 1918 (“We have found no

convincing indication that Congress wanted to pre-empt, not only state statutes and

regulations, but also common-law tort actions. . . .”)). We hold that the Safety Act and

FMVSS 208 do not impliedly preempt the Plaintiffs’ common-law claims relating to

MCI’s failure to have installed passenger seatbelts on the MCI bus at issue because that

claim is not in actual conflict with federal law or federal purposes and objectives.

B. Laminated Glass Side Windows

        We next address MCI’s point that the Plaintiffs’ state common-law defective

design claims regarding laminated passenger windows are impliedly preempted by




full note of the Coast Guard’s explanation why it did not require propeller guards, and that decision did
not convey an authoritative message of a federal policy against propeller guards. Sprietsma, 537 U.S. at
61-62, 66-67, 123 S.Ct. at 525-28. Likewise, NHTSA has not conveyed an authoritative message against
passenger seatbelts in motor coach buses. We disagree with Surles. We disagree as well with the analysis
in Schunck, which also concerned a claim that seatbelts should have been installed on a transit bus. There
the trial court focused—incorrectly in our view—on a supposed “10,000 pound weight standard” and on
the fact that NHTSA requires passenger restraints on buses weighing less than 10,000 pounds. Schunck,
2007 WL 1748647, at *3. That analysis, like the one in Surles, misses the mark set in Myrick and Sprietsma
and misapplies Geier.
         We find inapposite Hurley v. Motor Coach Indus., Inc., 222 F.3d 377 (7th Cir. 2000), which involved
claims by a bus driver that MCI’s bus was defective because it was equipped only with a two-point lap
belt. Hurley did not involve passenger seatbelts, and because FMVSS 208 does regulate bus driver
restraint and protection systems and provides options for bus driver restraint systems, Geier did apply to
impliedly preempt the plaintiffs’ claims that a three-point seatbelt, an airbag, and a steel cage for the
driver were all required. Id. at 380-82.

7       49 U.S.C. § 30103(e) (“Compliance with any Federal motor vehicle safety standard issued under
this subchapter does not exempt any person from any liability under common law.”).

MCI v. Hinton                                                                                       Page 15
federal law. The jury found that there was a design defect in the bus because laminated

glass was not used in the side passenger windows.

        FMVSS 205 is the safety standard applicable to the requirements for windows in

“multiple passenger vehicles.” 49 C.F.R. 571.205. The standard provides that “glazing

materials for use in motor vehicles must conform to ANSI/SAE Z26.1-1996.” 49 C.F.R.

571.205(S5.1). At the time the bus at issue was manufactured, ANSI/SAE Z26.1-1996

provided a bus manufacturer could use either laminated or tempered glass in the

passenger windows.8 The Plaintiffs note that the windows in the subject bus were

equipped with two panes of tempered glass and point to evidence that, since 1970, MCI

has used two types of glazing for passenger windows: (1) a single pane of laminated

glass, and (2) a dual pane system, with one pane of laminated glass and one pane of

tempered glass. The parties do not dispute that the subject bus’s passenger windows

complied with FMVSS 205 and ANSI/SAE Z26.1-1996.

        In O’Hara v. General Motors Corp., 508 F.3d 753 (5th Cir. 2007), a minor was

seriously injured when she was partially ejected from the passenger side window of a

2004 Chevrolet Tahoe during a rollover accident. In their suit against General Motors,

the plaintiffs claimed that GM’s use of tempered glass in the side windows was

unreasonably dangerous and that the use of advanced glazing (laminated glazing and


8        The term “laminated glass” means two or more pieces of sheet, plate, or float glass bonded
together by an intervening layer or layers of plastic material. It will crack or break under sufficient
impact, but the pieces of glass tend to adhere to the plastic. If a hole is produced, the edges are likely to
be less jagged than would be the case with ordinary annealed glass. ANSI/SAE Z26.1-1996 § 1.6.
         The term “tempered glass” means a single piece of specially treated sheet, plate, or float glass
possessing mechanical strength substantially higher than annealed glass. When broken at any point, the
entire piece breaks into small pieces that have relatively dull edges as compared to those of broken pieces
of annealed glass. Id. at § 1.21.

MCI v. Hinton                                                                                       Page 16
glass-plastic glazing material) would have decreased the likelihood of passenger

ejection. The district court found that the plaintiffs’ claims were impliedly preempted

by FMVSS 205. See O’Hara v. General Motors Corp., 2006 WL 1094427 (N.D. Tex. Apr. 25,

2006). On appeal, the Fifth Circuit addressed the precise issue before us: “This appeal

is about whether FMVSS 205, which governs motor vehicle glazing safety, preempts a

common law suit alleging that GM's use of a permitted glazing technology was unsafe.

We are the first appellate court to rule on this question.” O’Hara, 508 F.3d at 757.

       After detailing federal policy and NHTSA’s activity relating to FMVSS 205 and

applying Geier and Sprietsma, the court held that the plaintiffs’ claims were not

impliedly preempted.      Id. at 759-63.    “Because we find that FMVSS 205 differs

significantly from FMVSS 208 and does not establish a federal policy which would be

frustrated by a state common law rule requiring advanced glazing in side windows, we

hold that the O’Haras’ suit is not preempted.” Id. at 758.

       At least two federal district courts have followed O’Hara. See Spruell v. Ford

Motor Co., 2008 WL 906648 (W.D. Ark. Apr. 1, 2008); Burns v. Ford Motor Co., 2008 WL

222711 (W.D. Ark. Jan. 24, 2008). We will likewise. Based on the Fifth Circuit’s careful

analysis, we hold that the Plaintiffs’ design defect claims relating to MCI’s failure to use

laminated glass in the side passenger windows are not impliedly preempted by FMVSS

205. We overrule MCI’s third issue. Finding that Plaintiffs’ claims are not preempted

by federal law, we turn to MCI’s state-related issues.




MCI v. Hinton                                                                          Page 17
                             III. Legal Sufficiency of the Evidence

       MCI’s fourth and fifth issues assert that the evidence is legally and factually

insufficient to support the jury’s design defect and causation findings. We will address

MCI’s legal sufficiency complaints and its sixth issue, which complains that the trial

court improperly denied MCI’s Daubert challenge to one of the Plaintiffs’ experts.

       In reviewing the legal sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict, crediting favorable evidence if reasonable jurors

could, and disregarding contrary evidence unless reasonable jurors could not. City of

Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005).       There is legally insufficient

evidence or “no evidence” of a vital fact when (a) there is a complete absence of

evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact; (c) the evidence offered to

prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively

establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d

706, 711 (Tex. 1997).

A. Safer Alternative Design

       MCI’s fourth issue asserts that there is legally insufficient evidence of a safer

alternative design for three-point seatbelts, focusing primarily on the testimony of

Plaintiffs’ structural engineering expert Lonney Pauls. We will therefore address MCI’s

sixth issue at this point.

       1. Qualified Expert

       MCI argues that Pauls was unqualified to give opinion testimony about seatbelts


MCI v. Hinton                                                                        Page 18
in buses. The trial court serves as an evidentiary gatekeeper by screening out irrelevant

and unreliable expert evidence, and it has broad discretion to determine the

admissibility of evidence. General Motors Corp. v. Sanchez, 997 S.W.2d 584, 590 (Tex.

1999); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

       The Rules of Evidence provide: “If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of opinion or otherwise.” TEX. R. EVID. 702.

To establish a witness’s expert qualifications, the party calling the witness must show

“that the expert has ‘knowledge, skill, experience, training, or education’ regarding the

specific issue before the court which would qualify the expert to give an opinion on that

particular subject.” Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003) (quoting

Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996) (quoting Rule 702)). Whether a witness

is qualified to offer expert testimony is a matter committed to the trial court's discretion.

Broders, 924 S.W.2d at 151.

       MCI points to the following regarding Pauls’s alleged lack of qualifications: he

has never helped or advised a bus manufacturer; he has never actually engineered

seatbelt installation, the design of a seat to hold the loads of a seatbelt, or the design of

the anchors to hold the seat load; this was the first case in which he studied occupant

protection; and he has no degree or teaching experience in the area of occupant

protection. The main problem with MCI’s complaint about Pauls’s qualifications is that

the alleged testimony (from Volume 11 of the reporter’s record) that MCI relies on was

MCI v. Hinton                                                                         Page 19
that of Carl Nash, the former NHTSA executive, not Pauls.

       Pauls, a structural engineer, testified about the structural characteristics of the

bus and its ability to support seatbelts. He has a bachelor’s degree in mechanical

engineering and master’s degree in Applied Mechanics, which is the advanced study of

structures, structural dynamics, advanced dynamics, gas dynamics, fluid dynamics, and

finite element methods. Among other things (such as designing the suspension for

NASA’s lunar rover while employed by General Motors), Pauls has: (1) performed all of

the structural analysis and design on NHTSA’s Unitized Safety School Bus project,

including seat supports, which led to the development of FMVSS 222; (2) performed

data analysis of bus-seat testing for the U.S. Department of Transportation; and (3)

designed computer modeling programs to simulate the performance of seatbelt and

airbag systems. He had been hired by Greyhound, MCI’s former owner, to perform

structural analysis on an MCI motor coach, and he actually worked in an MCI facility to

help it design a remedy for structural cracking in its buses. One area in which Pauls

testified in this case was his description of how MCI’s motor coach could have been

retrofitted with seatbelts.

       The trial court did not abuse its discretion in finding that Pauls was qualified as

an expert in this case. We overrule MCI’s sixth issue.

       2. Specific Design to Install Three-point Seatbelts

             A design defect renders a product unreasonably dangerous as
       designed, taking into consideration the utility of the product and the risk
       involved in its use. A plaintiff must prove that there is a safer alternative
       design in order to recover under a design defect theory. An alternative
       design must substantially reduce the risk of injury and be both

MCI v. Hinton                                                                          Page 20
       economically and technologically feasible.

Sanchez, 997 S.W.2d at 588 (footnotes and citations omitted); see General Motors Corp. v.

Burry, 203 S.W.3d 514, 533 (Tex. App.—Fort Worth 2006, pet. denied); see also TEX. CIV.

PRAC. & REM. CODE ANN. § 82.005 (Vernon 2005). A plaintiff can prove technological

feasibility of a safer alternative design with evidence that another manufacturer uses it.

See Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 746 (Tex. 1980); Honda of Am. Mfg.

v. Norman, 104 S.W.3d 600, 607 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

       The jury was given the following instruction in the design defect question on the

absence of passenger seatbelts:

       A “design defect” is a condition of the product that renders it
       unreasonably dangerous as designed, taking into consideration the utility
       of the product and the risk involved in its use. For a design defect to exist
       there must have been a safer alternative design.

              “Safer alternative design” means a product design other than the
       one actually used that in reasonable probability--

       (1)      would have prevented or significantly reduced the risk of the
                injury in question without substantially impairing the product’s
                utility; and

       (2)      was economically and technologically feasible at the time the
                product left the control of MCI by the application of existing or
                reasonably achievable scientific knowledge.

       We review the sufficiency of the evidence in light of this instruction. City of Fort

Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000).

       MCI first claims that there is legally insufficient evidence of a specific design to

install three-point seatbelts in the motor coach bus in question. MCI posits that Pauls’s



MCI v. Hinton                                                                          Page 21
retrofit design to supposedly strengthen the bus structure so that it could accommodate

seats with seatbelts was only conceptual and thus legally insufficient.

           Pauls’s principal opinion was that the MCI motor coach bus could have been

modified to handle a three-point seatbelt system without unreasonable additional

weight or cost and without significantly altering the “semimonocoque” structure (a

structure whose “skin” supports some of the load but also has underlying construction

that supports most of the load) of the bus and without interfering with or impairing its

utility.     He summarily stated that modifying the MCI bus was economically and

technologically feasible at the time it left MCI’s control; specifically, Pauls testified that

the bus’s structure was inadequate to support seats with three-point seatbelts, so he

created a concept retrofit design of the bus in question that increased the bus structure’s

strength so that it could accommodate anchored seats with three-point seatbelts. He

used a mathematical engineering software program to calculate the size, strength, and

location of the retrofit materials needed to support such seats in a crash situation that

would meet FMVSS 210 crash standards. Pauls opined that the cost of his retrofit to the

bus in question was $3,910 per bus.

           MCI asserts four particular complaints about Pauls’s testimony. Its first two

complaints are that there is no testimony about the details or manner in which the

seatbelts would be installed and that Pauls’s concept used the measurements of the

Australian-made “G-2 StyleRide” seat, which was not approved until mid-1996, which

was after MCI built the bus in question. MCI’s other two complaints are that Pauls did

not offer a “design” of how the seatbelts would be attached and an economic and

MCI v. Hinton                                                                          Page 22
technological study of that design; he offered only an incomplete design showing where

some of the seatbelts could be attached and he did not determine feasibility for every

seat in the bus.

       Pauls said that he could have used other comparable available Australian seats

with his retrofit analysis. Also, Pauls was not requested to develop a seat and seatbelt

system—his sole task was to create a retrofit concept design for the MCI bus to support

such a seat and seatbelt system—and Noel Dabelstein, the leading Australian

manufacturer of bus seats with three-point seatbelts, testified that bus seats with three-

point seatbelts were commercially available for purchase by American bus

manufacturers as early as 1994 and that the installation of seatbelts on motor coaches

did not require significant changes in bus structure or design.        The Plaintiffs also

submitted evidence that, by 1996, other bus manufacturers were selling buses equipped

with three-point seatbelts, and the following countries had begun requiring seatbelts in

motor coaches: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy,

Ireland, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and the United

Kingdom.

       Virgil Hoogestraat, MCI’s Vice President of Engineering, essentially conceded

the economic and technological feasibility of installing a three-point seatbelt system on

the bus in question:

       Q. . . . certainly there’s nothing from an engineering feasibility standpoint
       that would stand as an insurmountable barrier for getting seat belts in
       passenger buses. That could be done?

       A. We could do that if we were required to do that.

MCI v. Hinton                                                                          Page 23
       Q. All right. Or if you chose to do it?

       A. If we knew we should be doing that, we would do it.

       Q. Okay. So it’s not financial or engineering feasibility that’s the issue; it
       is truly a question of MCI saying we are not convinced and we have not
       yet been convinced that putting seat belts in our buses for our passengers’
       use would be of a safety benefit to them?

       A. I do not know nor have I been involved in anything where somebody
       said this would be beneficial.

       Q. All right. But my question is: It is not now nor has it ever been a
       situation where MCI says we don’t put seat belts in our buses because we
       can’t figure out how to do it or we don’t want to pay for it. MCI has
       always been of the position that says the reason we’re not putting seat
       belts in our buses is because we are not convinced that there would be a
       benefit to our passengers by having them?

       A. Yes, sir.

       And while Robert Kadlec, MCI’s bus structure expert, disagreed with Pauls’

retrofit concept design, he admitted that “engineeringwise, a motor coach could be built

with three-point seat belts.”

       Pauls admittedly did not create drawings or a prototype for crash-testing, nor

did he design the actual three-point seatbelt system that would be installed in his

concept retrofit design. Pauls also admittedly did not create his retrofit design for the

entire bus; he did it for only one-third of the bus structure, explaining that his focus was

to create and mathematically test a retrofit for the largest bracket in the bus structure to

determine the cost (economic) and weight (technological) feasibility of his concept.

       With regard to Pauls’s retrofit concept design, the Plaintiffs did not have to build

and test a prototype to prove a safer alternative design. Sanchez, 997 S.W.2d at 592.

MCI v. Hinton                                                                           Page 24
“A design need only prove ‘capable of being developed.’” Id. (quoting Boatland, 609

S.W.2d at 748. “The Restatement (Third) of Torts: Products Liability takes the position that

‘qualified expert testimony on the issue suffices, even though the expert has produced

no prototype, if it reasonably supports the conclusion that a reasonable alternative

design could have been practically adopted at the time of sale.’”                Id. (citing

RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. f (1998)). Pauls’s retrofit

concept design is some evidence that reasonably supports the conclusion that a safer

alternative design of the MCI bus was capable of being developed.

       Based on the foregoing—and viewing Pauls’s testimony and the other noted

evidence in the light most favorable to the verdict—we conclude that there is at least

some evidence, more than a scintilla, of the existence of a safer alternative design with

respect to the installation of three-point seatbelts in the MCI bus at issue.

       3. Installing Seatbelts Would Protect Greatest Number

       MCI next asserts that there is no evidence “that seatbelts would be the most

effective safety system in all bus accidents.” MCI concedes that seatbelts offer the best

protection for bus rollovers (and “tip-overs”) while pointing to cross-examination

testimony of one of the Plaintiffs’ experts, Anil Khadilkar, Ph.D., a transportation safety

expert, that rollovers and tip-overs occur far less frequently than do front, rear-end, and

side-impact collisions. MCI also points to Dr. Khadilkar’s agreement that passengers on

some motor coaches socialize while traveling and if a passenger is socializing (e.g.,

turning in her seat to talk to another passenger sitting behind her) while wearing a

three-point seatbelt and a front, rear-end, or side-impact collision occurs, the seatbelted

MCI v. Hinton                                                                        Page 25
passenger can be injured by wearing the seatbelt improperly because she is out of

position at the time of the collision.9 Thus, MCI concludes, there is legally insufficient

evidence that the use of seatbelts would protect against the greatest risk to the greatest

number of people.

        “[A] plaintiff complaining of a design defect is required to show that ‘the safety

benefits from its proposed design are foreseeably greater than the resulting costs,

including any diminished usefulness or diminished safety’—that is, that the alternative

design not only would have reduced the risk of harm in the instant case, but also would

not, ‘under other circumstances, impose an equal or greater risk of harm.’” Norman, 104

S.W.3d at 605 (quoting Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 337 (Tex.

1998)); see also General Motors Corp. v. Harper, 61 S.W.3d 118, 125 (Tex. App.—Eastland

2001, pet. denied) (quoting RESTATEMENT (THIRD)                 OF   TORTS: PRODUCTS LIABILITY § 16

cmt. b (1998)) (“the alternative to the product design must increase the overall safety of

the product. It is not sufficient that the alternative design would have reduced or

prevented the harm the plaintiff suffered if the alternative would introduce into the

product other dangers of equal or greater magnitude.”)

        The Plaintiffs argue that the safety benefit of seatbelts in buses is partly intuitive;

we agree with that sentiment. The Plaintiffs also put into evidence numerous scientific

studies and papers concluding that seatbelts increase safety for motor coach passengers,

and several witnesses, including Dabelstein, Dr. Khadilkar, Dr. Joseph Burton (a



9       Dr. Khadilkar added that the risk of an “out-of-position” seatbelt injury is far less in a bus than in
a car because cars have such a lower mass.

MCI v. Hinton                                                                                        Page 26
forensic pathologist), and Dr. John Lenox (a physician and a biomechanical engineer)

testified that passenger seatbelts in motor coaches significantly increase occupant safety

and provide the best occupant protection in any crash scenario. Dr. Khadilkar said that

a motor coach with three-point seatbelts is not more dangerous and that to his

knowledge, no scientific study has concluded that three-point seatbelts make motor

coaches more dangerous. MCI’s Hoogestraat was also unaware of any such articles or

studies.

       Dr. Khadilkar also testified about NHTSA’s testing of school buses that

compared compartmentalization with seatbelts, and although seatbelts were not

mandated for school buses because of policy reasons unique to school buses, the testing

showed that three-point seatbelts provided superior occupant protection. We conclude

that there is at least some evidence, more than a scintilla, that three-point seatbelts not

only would have reduced the risk of harm in the instant case, but also would not, under

other circumstances, impose an equal or greater risk of harm.

B. Producing Cause—Failure to Install Seatbelts

       With respect to Melvin Akers, who was ejected and killed in the accident, MCI

asserts that the undisputed evidence shows that he would not have been saved by a

seatbelt, pointing to testimony of Dr. Burton, the Plaintiffs’ causation expert. Dr. Burton

first testified that a three-point seatbelt would not have prevented Akers’s head and

upper torso from being ejected if the window glass did not stay in place: “the only way

to guarantee that Melvin Akers survives this is that Melvin Akers has a restraint on, belt

restraint, and Melvin Akers has a glass of some type that stays inside the window to

MCI v. Hinton                                                                       Page 27
prevent his head, which is going to be right up against the window opening, from going

out of the bus when it rolls over.” He later opined that Akers would not have died or

sustained serious injury if he had been restrained by a three-point seatbelt or if the glass

had not come out. There is at least some evidence, more than a scintilla, that the failure

to install three-point seatbelts was a producing cause of Akers’s death.

       MCI next asserts that for Judy Benson, Jim Freeman (whose wife was killed in

the accident), Elaine Horton, Alan Horton, and Robert Kuryla, there is legally

insufficient evidence that, had they been wearing seatbelts, they would have suffered

less severe injuries. Dr. Burton admitted that had they been wearing seatbelts, he could

not say that they would not have been injured to the extent that they were, but he

qualified that by adding that seatbelts would have decreased but not eliminated their

soft-tissue injuries. There thus is at least some evidence, more than a scintilla, that the

failure to install three-point seatbelts was a producing cause of the personal injuries of

Judy Benson, Jim Freeman, Elaine Horton, Alan Horton, and Robert Kuryla.

C. Producing Cause—Failure to Install Laminated Glass

       Finally, MCI contends that there is no evidence that the failure to install

laminated glass was a producing cause of the Plaintiffs’ injuries. MCI’s sole basis for

this contention is that, because the laminated-glass windshield of the bus completely

came out, laminated-glass passenger windows also would have come out, and thus

there is no evidence that the failure to install laminated-glass passenger windows could

have been a producing cause of the injuries and deaths of the passengers who were

ejected.

MCI v. Hinton                                                                        Page 28
       In the motor vehicle industry, laminated glass is often referred to as “occupant

retention glazing.” The Plaintiffs’ glazing expert, Herbert Yudenfriend, testified that

laminated glass is composed of two panes of glass with a supporting internal layer of

polyvinyl butyral (PVB). He explained that because of the PVB layer’s strength, the

glass retains its penetration resistance and occupant-retention characteristics even when

the actual glass breaks. Yudenfriend stated that rubber gaskets had been used to attach

the laminated windshield in the MCI bus, and he opined that bonding or gluing should

have been used. We thus agree with the Plaintiffs that there is some evidence that

bonded laminated side-passenger windows could have prevented occupant ejection in

the accident.

       In conclusion, we overrule MCI’s legal sufficiency complaints in its fourth and

fifth issues.

                           IV. Proportionate Responsibility

       We now turn to MCI’s first issue, which asserts that the trial court abused its

discretion and committed harmful error by not submitting questions to the jury

concerning the bus driver’s or his employer’s proportionate responsibility as “settling

parties” or as “responsible third parties.”

A. Responsible Third Parties

       We begin with MCI’s assertion that the trial court erred in not submitting to the

jury the proportionate responsibility of Cummings or Central Texas as “responsible

third parties” under the applicable version of Chapter 33 of the civil practice and




MCI v. Hinton                                                                     Page 29
remedies code.10 See Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen.

Laws 971, 972-73 (amended 2003) (current version at TEX. CIV. PRAC. & REM. CODE ANN.

§§ 33.003, 33.004, 33.011(6) (Vernon Supp. 2007)). Because that version required MCI to

actually join Cummings and Central Texas as responsible third parties,11 we agree with

the Plaintiffs that MCI’s complaint is actually an attack on the trial court’s denial of

MCI’s motion for leave to join Cummings and Central Texas as responsible third

parties. We review that denial for abuse of discretion. See In re Arthur Anderson, 121

S.W.3d 471, 483-85 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding).

        The first of the Plaintiffs’ suits against MCI was filed on June 26, 2003, and MCI

answered on August 14. More than eighteen months later, and on the day limitations

would have expired—February 14, 2005, MCI filed a motion for leave to join Cummings

and Central Texas as responsible third parties. At that time, trial was set for August 1,

2005, but MCI did not seek a hearing on its motion for leave until late June, and the

hearing in which the trial court denied MCI’s motion for leave took place on July 15.12


10      This case is governed by the version of chapter 33 in effect before July 1, 2003 because this action
was filed before that date. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.05, 23.02(c), 2003 Tex. Gen.
Laws 847, 856, 899.

11       See In re Grant Thornton, L.L.P., 2004 WL 114978, at *2 (Tex. App.—Houston [14th Dist.] Jan. 26,
2004, no pet.) (mem. op.) (“The express language of the Proportionate Responsibility Statute in effect for
this case requires that responsible third parties be joined in the lawsuit, not simply named or designated. .
. . Sub-sections 33.004(d) and (e) also use the word “join” and discuss filing a third party claim to bring
responsible third parties into a lawsuit.”); see id. at n.2 (“Because this action was filed before July 1, 2003,
relator was required to serve responsible third parties.”).

12       Moreover, in the five-month period after filing its motion for leave, MCI appears to never have
served Cummings and Central Texas with MCI’s third-party petition joining them as responsible third
parties. See, e.g., In re Grant Thornton, 2004 WL 114978, at *2 (“Because relator’s designated responsible
third parties were never served with a petition and citation, they were not parties to the suit at the time
the court purportedly struck them.”). The Plaintiffs additionally assert that this lack of due diligence
raised a statute of limitations problem for MCI as to Cummings and Central Texas.

MCI v. Hinton                                                                                          Page 30
        Because MCI waited until the eve of trial to seek to join Cummings and Central

Texas as responsible third parties,13 we cannot say that the trial court abused its

discretion in denying MCI’s motion for leave to join Cummings and Central Texas as

responsible third parties. See In re Arthur Anderson, 121 S.W.3d at 483 (“The court may

indeed consider whether joinder will delay the trial. However, the key is whether a

delay is reasonable under the facts and circumstances of the suit, keeping in mind the

history of the suit, and not simply that a delay will occur.”) (citing and quoting TEX. R.

CIV. P. 37 (allowing additional parties to be brought in “but not at a time or in a manner

to unreasonably delay the trial of the case”)). We hold that because Cummings and

Central Texas were not properly joined by MCI as responsible third parties, the trial

court did not abuse its discretion in refusing to submit to the jury their proportionate

responsibility as “responsible third parties.”

B. “Settling Person”

        Finally, we address whether Central Texas (we include Cummings within

Central Texas for this issue) is a “settling person” whose proportionate responsibility

should have been submitted to the jury. We review the trial court’s refusal of MCI’s

request to include Central Texas as a “settling person” in a proportionate responsibility

question in the jury charge for abuse of discretion. See In re V.L.K., 24 S.W.3d 338, 341

(Tex. 2000); Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 837 (Tex. App.—Fort

Worth 2006, no pet.). The trial court is afforded broad discretion, but only so long as the



13      The Plaintiffs note that as of July 15, the parties were engaged in final trial preparation, discovery
had closed, and trial was scheduled to begin in two weeks.

MCI v. Hinton                                                                                         Page 31
charge is legally correct. Rodriguez, 995 S.W.2d at 664.

       1. The Bankruptcy Proceedings

       Next, we outline the complex factual and procedural history relating to the

Plaintiffs’ claims and recoveries in the Central Texas bankruptcy proceeding. On April

11, 2003—just two months after the accident—the Central Texas entities filed for

Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the

Western District of Texas. Cummings filed a Chapter 7 bankruptcy petition shortly

thereafter. At a hearing on Central Texas’ motion to extend the stay in regard to its

liability insurance carrier, the bankruptcy court determined that Central Texas’ liability

insurance policy and its proceeds were property of Central Texas’ bankruptcy estate

and ordered a stay as to any claimant’s actions to recover on a claim against that policy

or its proceeds; it also ordered the insurer, which was not disputing coverage for the

crash, from accepting any settlement demands or paying any claims out of the proceeds

without prior authority of the bankruptcy court.

       On the motion of the family and estate of the victims in the SUV (the

Dobelbowers) that had collided with the MCI bus, on June 30 the bankruptcy court

ordered Central Texas’ liability insurer to pay its $5 million policy limits into the

bankruptcy court’s registry and ordered that the funds be held in an interest-bearing

account. The principal ground for that motion was to have the $5 million policy limits

placed in an interest-bearing account because the bus-crash claimants’ damages would

greatly exceed $5 million and the accrual of interest would be somewhat helpful for the

victims. Motions were also filed calling for the bankruptcy court to order various forms

MCI v. Hinton                                                                      Page 32
of ADR to allocate the $5 million among the numerous claimants (including the

Plaintiffs, who filed proofs of claims against the Central Texas entities), and the

bankruptcy court first ordered nonbinding mediation, which had already been set up

and scheduled by many of the claimants. The mediation resulted in an apportionment

schedule in which each claimant was assigned a specific percentage of the insurance

proceeds,14 and on October 21, 2003, the bankruptcy court granted a motion by some of

the Plaintiffs for an order approving the Apportionment Plan, which included a

Litigation Plan.

       2. The Apportionment Plan

       The Apportionment Plan provided that the “Bus Crash Claimants” (which

included the Plaintiffs) “may elect to accept the percentage of the Liability Fund [the $5

million insurance proceeds and accrued interest] specifically assigned to that

individual’s claims by the mediator as set forth in the Apportionment Schedule.” It also

provided: “Any Bus Crash Claimants may elect to decline acceptance of the percentage

of the Liability Fund specifically assigned to that individual’s claim in the

Apportionment Schedule,” in which case the claimant “will be bound by the terms and

conditions of the Litigation Plan.” Some of the bus passengers accepted the mediator’s

assigned percentages and were paid under the apportionment schedule, but all of the

Plaintiffs chose to have their claims against Central Texas and Cummings resolved

under the Litigation Plan.       About one-half of the $5 million was allocated in the

Apportionment Plan; the other half was held for those participating in the Litigation


14     For example, Appellee James Hinton was assigned 6.5010% of the insurance proceeds.

MCI v. Hinton                                                                               Page 33
Plan.

        3. The Litigation Plan

        Under the Litigation Plan, the claimants were to try their cases to a verdict before

a special judge and under procedural rules agreed upon by all the participants. The

claimants were to recover from the fund left over after payment of the apportionment

claims, which was approximately $2.5 million and was termed the Litigation Fund.

Their recovery was capped at 110% of the percentage assigned by the mediator.

        The Litigation Plan provided:

        4)      Each participant in the Litigation Plan agrees that any recovery
                from the Litigation Fund will necessitate that the claimant prove by
                a preponderance of the evidence the following factual issues:
                a.    that the negligence of Central Texas Trails, Inc., Kincannon
                      Enterprises, Inc., Central Texas Bus Lines, Inc., or Johnny M.
                      Cummings was a proximate cause of the participant’s
                      injuries and/or damages; and
                b.    the amount of damages suffered by the claimant as a result
                      of that negligence.

        Neither the Litigation Plan nor the bankruptcy court’s approval order included a

schedule or deadlines for the Plan’s implementation and disposition. In October 2004,

after having confirmed Central Texas’ reorganization plan, the bankruptcy court

entered a final decree closing the bankruptcy case, even though nothing had occurred

under the Litigation Plan.

        The Plaintiffs’ case against MCI was tried in October 2005.15 In offers of proof,


15       Before trial, in September 2005, MCI and its affiliate companies who were creditors in Central
Texas’ bankruptcy had filed a motion to reopen the bankruptcy case and a motion to enforce the
Litigation Plan, complaining that no action had taken place to implement the Litigation Plan. MCI
contended that the Plaintiffs should be prohibited from obtaining a double recovery—one from the
Litigation Plan and one from the state-court suit against MCI—and that, should the Plaintiffs obtain a

MCI v. Hinton                                                                                  Page 34
MCI elicited testimony from many of the Plaintiffs about their proofs of claims against

Central Texas in the bankruptcy case. The Plaintiffs testified that they had not made

claims in the bankruptcy case against Central Texas, that they did not blame Cummings

for the accident, and that they were not aware of the details of the Apportionment Plan.

After the trial, Donnie Hagans, a claimant who had accepted payment under the

Apportionment Plan, filed a motion in the bankruptcy court “to withdraw, strike or

deny” the Plaintiffs’ proofs of claims based on their inconsistent offer-of-proof

testimony.

       The bankruptcy court held show-cause hearings in January 2006 on these

motions and noted significant flaws in the Litigation Plan: it did not contain a provision

for getting money paid out of the Litigation Fund; it did not provide for the disposition

of any leftover funds; and it had no deadlines or schedules. Thereafter, the Plaintiffs

agreed on a “Special Judge,” and the bankruptcy court ordered the Bus Crash

Claimants (the Plaintiffs) to submit evidence to the Special Judge by February 6, 2006

and to appear on that date at the office of one of the attorneys for several of the

Plaintiffs to present oral argument or testimony before the Special Judge. Central Texas

was given the opportunity to appear before and submit evidence to the Special Judge;

MCI was not. The Special Judge was given until March 15, 2006 to render a verdict and

report and file them with the bankruptcy court. The order included the following

stipulation:



judgment against MCI, it should receive a credit for any amounts received by the Plaintiffs under the
Litigation Plan.

MCI v. Hinton                                                                                Page 35
       The Litigation Plan Participants [the Plaintiffs] will not move for judgment
       on the state court verdict prior to the final approval of disbursements, if
       any, to the Litigation Plan Participants in the Bankruptcy Court absent
       extenuating circumstances. The Litigation Plan Participants will not
       oppose a motion filed by Motor Coach in the state court action for credits
       on the judgment based upon the “one satisfaction rule” as a result of the
       receipt of any funds disbursed to them from the Litigation Plan. However,
       the Litigation Plan Participants will oppose any motion filed by Motor Coach
       Industries which seeks to deem funds disbursed form the Litigation Fund to be
       “settlement credits,” or a settlement under Chapter 33 of the Texas Civil Practice
       and Remedies Code. [Emphasis added.]

       The Special Judge rendered a “Special Verdict, Report and Recommendation”

after conducting the February 6 “hearing.” It included a recitation of all of the materials

that the Special Judge had reviewed (including the reporter’s record in this case) and a

listing of the parties appearing on February 6. No one appeared on behalf of Central

Texas or Cummings. The Special Judge made the following liability “finding”:

              Based on the materials I have reviewed, it is my determination that
       the negligence of the bus driver, Mr. Johnny Cummings, was a proximate
       cause of the accident that produced the Participants’ [Plaintiffs’] injuries
       and damages. I further find that Mr. Cummings was acting within the
       course and scope of his duties for one or more Debtors [Central Texas].
       Therefore, under Texas law, one or more Debtors are vicariously liable for
       his negligence.

              I have not endeavored, based upon my understanding of my duties
       under this Court’s Order, to make a complete or comparative assessment
       of all parties potentially liable for causing either the accident or the
       resulting damages.

       The Special Judge adopted the MCI trial’s jury findings as a cap on the damages

award and then made a slight adjustment to the percentages found by the mediator.

The bankruptcy court approved the Special Judge’s finding, and each Plaintiff received

within 2% of the amount allocated in the Apportionment Plan, except for Robert


MCI v. Hinton                                                                               Page 36
Kuryla, whose award was reduced because the jury had awarded him less than his

allocation.

       MCI then moved the trial court for a settlement credit for the Central Texas

insurance monies paid to the Plaintiffs from the bankruptcy court. But rather than

giving a settlement credit, the trial court recited in the final judgment that it has been

“partially satisfied” as to each Plaintiff in the exact amount that each had received from

the Litigation Fund.

       4. Chapter 33

       As noted above, the statutory scheme under the 1995 version of Chapter 33

applies to this case. It applied to a broad range of cases, including “any cause of action

based on tort in which a defendant, settling person, or responsible third party is found

responsible for a percentage of the harm for which relief is sought.” Act of May 8, 1995,

74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 971 (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 33.002 (Vernon Supp. 2007)).             Former section 33.003

provided that the trier of fact shall determine the percentage of responsibility for each

claimant, each defendant, each settling person, and each responsible third party who has

been joined under section 33.004. Id. at 1995 Tex. Gen. Laws 971, 972-73 (amended 2003)

(current version at TEX. CIV. PRAC. & REM. CODE ANN. § 33.003 (Vernon Supp. 2007)); see

also TEX. R. CIV. P. 277 (requiring trial court to submit jury question when loss is to be

apportioned). “Settling person” was defined by former section 33.011(5) as “a person

who at the time of submission has paid or promised to pay money or anything of

monetary value to a claimant at any time in consideration of potential liability . . . for

MCI v. Hinton                                                                      Page 37
which recovery of damages is sought.” Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, §

2.07, 1987 Tex. Gen. Laws 37, 41 (amended 1995 and 2003) (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 33.011(5) (Vernon Supp. 2007)).

        Former section 33.013 provided, with certain exceptions, that a defendant was

liable only for the percentage of responsibility found by the trier of fact, unless the

percentage of responsibility exceeded fifty percent, in which case that defendant was

jointly and severally liable for all of the claimant’s recoverable damages.16                    It was

therefore plainly in MCI’s interest to have Central Texas’ conduct (or that of Cummings,

for whom Central Texas was vicariously liable) submitted to the jury to reduce MCI’s

percentage of responsibility, if any, and at a minimum to determine if its percentage of

responsibility was under 51%, which would allow it to avoid joint and several liability

for all of the Plaintiffs’ damages. Conversely, because Central Texas was in bankruptcy,

it was in the Plaintiffs’ interest to have MCI found 100%, or at least 51%, responsible.

        5. Discussion and Analysis

        Based on the above, we now must determine whether Central Texas was a

“settling person” under Chapter 33. That is, we address whether or not the Litigation

Plan was a “settlement” between Central Texas and the Plaintiffs such that Central

Texas was a “settling person” whose proportionate responsibility should have been

submitted to the jury along with that of MCI. See C & H Nationwide, Inc. v. Thompson,

903 S.W.2d 315, 320 (Tex. 1994) (“‘settlement’, as used in the Comparative



16      Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3271 (amended 1987,
1995, and 2003) ((current version at TEX. CIV. PRAC. & REM. CODE ANN. § 33.013 (Vernon Supp. 2007)).

MCI v. Hinton                                                                                    Page 38
Responsibility Law, means money or anything of value paid or promised to a claimant

in consideration of potential liability”).

       As a threshold matter, we review MCI’s contention that legally sufficient

evidence supported the submission of Central Texas’ proportionate responsibility. In

addition to the statutory definition of settling person, former section 33.002(f) also

required sufficient evidence to support the submission of that person’s conduct in a

proportionate responsibility question. Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1,

1995 Tex. Gen. Laws 971, 972 (amended 2003) (current version at TEX. CIV. PRAC. & REM.

CODE ANN. § 33.003(b (Vernon Supp. 2007)). We review that person’s conduct for legal

sufficiency. Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 573 (Tex. App.—Houston [1st

Dist.] 2004, no pet.). MCI points to evidence that Cummings was driving too fast, that

he drove the bus into head-on traffic, and that the tread on one of the rear bus tires was

too thin for the wet road conditions. The Plaintiffs make no argument that the evidence

was legally insufficient.    We conclude that there is some evidence to support the

submission of Central Texas’ conduct in a proportionate responsibility question.

       We begin our settling-person analysis by noting that the Plaintiffs asserted tort

claims against Central Texas in their bankruptcy proofs of claims. MCI asserts that

Central Texas’ liability insurer’s tender of the $5 million policy limits to the bankruptcy

court was a payment to the Plaintiffs in consideration of Central Texas’ potential

liability. The Plaintiffs argue that the money was tendered not to them, but to the

bankruptcy court, and only because the bankruptcy court ordered it. That is only

partially correct.

MCI v. Hinton                                                                       Page 39
       It is apparent from the various bankruptcy court documents (particularly the

Dobelbowers’ various motions relating to the $5 million policy proceeds and ADR

procedures and the other parties’ motions and responses relating to ADR) that all of the

parties—the Bus Crash Claimants, Central Texas, and its liability insurer—were

engaged in extensive, detailed discussions and negotiations over the $5 million and its

fair division among all the claimants. Additionally, it appears that neither Central

Texas nor its insurer opposed tendering the $5 million or participating in ADR

proceedings to apportion the $5 million.17

       Moreover, Central Texas’ Second Amended Plan of Reorganization, which the

Plaintiffs voted for and which the bankruptcy court approved, delineated the Bus Crash

Claimants as a class of creditors with wrongful death and personal injury damages

against Central Texas arising out of the crash and provided: “The Debtor [Central

Texas] shall pay $7,000 annually to this class of creditor for five years.” These payments

began in 2004 and went partly into the Litigation Fund to be distributed under the

Litigation Plan. We are now led to the crucial aspect of our inquiry: Did the Litigation

Fund, which consisted of half of the insurance proceeds and Central Texas’ direct

annual payments, and the Litigation Plan, through which each Plaintiff’s claim for a

percentage of the Litigation Fund was “adjudicated,” constitute payments to the

Plaintiffs in consideration of potential liability and thereby render Central Texas a

“settling person”? (Or more broadly, was the Litigation Plan a settlement between



17     The only major dispute between the Bus Crash Claimants and Central Texas and its insurer was
whether the claimants would have to fully release Central Texas, Cummings, and the insurer.

MCI v. Hinton                                                                              Page 40
Central Texas and the Plaintiffs?) We answer “yes.”

       The tender of the $5 million to the bankruptcy court (half of which went to the

Litigation Fund) and Central Texas’ direct annual payments to the Litigation Fund,

were indirect payments to the Plaintiffs in consideration of Central Texas’ potential

liability to the Plaintiffs, and the subsequent payments from that fund to the Plaintiffs

were not contingent on the outcome of an adversarial or uncertain proceeding. Cf.

Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 452-55 (Tex. App.—El Paso 2006, no pet.)

(holding that post-settlement bankruptcies of settling parties did not make settlements

contingent and that defendant was entitled to credits, even though settlements had not

been paid, and distinguishing settlements contingent on other litigation and uncertain

bankruptcy proceedings) (citing McNair v. Owens-Corning Fiberglas Corp., 890 F.2d 753

(5th Cir. 1989), and Cimino v. Raymark Indus., 751 F. Supp. 649 (E.D. Tex. 1990), aff’d in

part, vacated in part on other grounds, 151 F.3d 297 (5th Cir. 1998)).

       The Plaintiffs contend that, because the hearing before the Special Judge and the

bankruptcy court’s order approving the Special Judge’s report and the disbursements to

the Plaintiffs occurred several months after the trial against MCI, there had been no

adjudication or disbursements—no payments or promises to pay—out of the Litigation

Fund at the time the case was submitted to the jury in the MCI trial. The statute,

however, defines a settling person as one who pays or promises to pay “at any time.”

Thus, we give no weight to the timing of the Litigation Plan’s hearing, verdict, and




MCI v. Hinton                                                                      Page 41
actual disbursements;18 as of the time of submission of this case to the jury, the

Litigation Plan had been in place for over two years. We also give no credence to the

ipse dixit statement in Central Texas’ reorganization plan that “[s]ome of the bus crash

claimants [the Plaintiffs] have not settled their claims against the Debtors [Central

Texas]” and continue to be participants in the Litigation Plan.

       The Plaintiffs’ other arguments for why the Litigation Plan was not a settlement

are that their claims against Central Texas were not settled, but were “adjudicated”

under the bankruptcy court’s orders (via the Litigation Plan), that they were required to

prove Central Texas’ negligence and their damages to the Special Judge to receive

money from the Litigation Fund, and that they were exposed to receiving less money

than originally allocated to them by the mediator. We are not persuaded.

       Although the bankruptcy court entered an order approving the Litigation Plan,

that plan was prepared by and agreed to by the Plaintiffs. Extensive negotiations took

place before and after the mediation in which all the Bus Crash Claimants, including the

Plaintiffs, agreed to an apportionment schedule in which each claimant was assigned a

specific percentage of the Litigation Fund. Negotiations with Central Texas and its

insurer also took place, and in its reorganization plan, Central Texas agreed to pay

$7,000 a year for five years to benefit the Litigation Fund. The Plaintiffs, as a class of

creditors, voted for this plan, which also included a provision discharging Central


18        We acknowledge MCI’s note on the treatment that the trial court’s final judgment gives to the
Litigation Fund payments to the Plaintiffs—as partial satisfactions of the judgment, rather than as
settlement credits. But Central Texas was not a party to the judgment and thus could not have partially
satisfied it, and these payments came from the Litigation Plan and were funded by Central Texas and its
liability insurer in consideration of Central Texas’ potential liability.

MCI v. Hinton                                                                                  Page 42
Texas from all debts, including the Plaintiffs’ tort claims.

       The Litigation Plan was structured to make the payments from the Litigation

Fund to the Plaintiffs appear to be contingent on an adjudicative proceeding, but

piercing it reveals no adversarial adjudication or uncertainty to render it contingent,

and it has several indicia of a settlement. Cf. Turoff, 222 S.W.3d at 668 (“But the law on

Mary Carter Agreements in Texas has evolved to include agreements that violate the

principles laid out in Elbaor even if the precise structure of the agreement does not fit

the precise pattern of an agreement previously determined to be in violation of public

policy.”). The money paid into the Litigation Fund was apparently nonrefundable, and

thus unconditional; i.e., nothing provided for its return or other disposition if the

Plaintiffs did not prove the negligence of Central Texas or Cummings to the Special

Judge. The Litigation Fund was plainly earmarked to be distributed to the Plaintiffs in

the approximate percentages agreed to at the 2004 mediation. We have no reason to

believe that the Special Judge acted other than in good faith, but the “hearing” before

him was not adversarial. No interested parties (e.g., Central Texas, Cummings, or MCI)

participated to argue that Central Texas and Cummings were not negligent or to contest

the Plaintiffs’ injuries or the amount of their damages.19 The payments that were to be

made to the Plaintiffs as a result of the proceeding before the Special Judge were not

contingent so as to render the Litigation Plan not a settlement for purposes of Chapter

33.


19      We view the Litigation Plan as a good-faith, albeit unsuccessful, attempt to avoid the possible
detriment to the Plaintiffs if Central Texas’ proportionate responsibility were submitted to the jury.
Indeed, it had the stamp of approval of the bankruptcy court.

MCI v. Hinton                                                                                  Page 43
          We summarize: As a result of the crash, Central Texas was potentially liable to

the Plaintiffs; all of Central Texas’ liability insurance proceeds were earmarked for the

crash victims, and half of those proceeds, along with direct payments from Central

Texas, were placed in a fund to be allocated among the Plaintiffs under procedures set

up and controlled by the Plaintiffs with no adversary; the Plaintiffs voted for Central

Texas’ reorganization plan, which discharged all of Central Texas’ debts, including its

debts for the Plaintiffs’ tort claims; all of the Plaintiffs received the approximate

apportionment percentages that had been agreed to at the original mediation; and the

payments were made to the Plaintiffs plainly in consideration of Central Texas’

potential liability to them. This process was hardly a typical tort settlement, but it was a

settlement and Central Texas was a settling person for purposes of Chapter 33. For

these reasons, we hold that Cummings and Central Texas were “settling persons” under

Chapter 33 and that the trial court erred in refusing MCI’s request to submit their

proportionate responsibility to the jury. See Omega Contracting, 191 S.W.3d at 837;

Olympic Arms, 176 S.W.3d at 575.

          We last address whether the trial court’s error was harmful and warrants

reversal. A reversal is warranted if the trial court denies a proper submission of a

settling person’s proportionate responsibility, and the error probably caused the

rendition of an improper judgment. See TEX. R. APP. P. 44.1; Olympic Arms, 176 S.W.3d

at 576.

          We found above that there was legally sufficient evidence of Central Texas’ and

Cummings’s negligence. It is thus probable that the jury would have placed some of

MCI v. Hinton                                                                        Page 44
the responsibility on them, and if MCI’s proportionate responsibility were found to be

less than 51%, it would have been liable for only its percentage of responsibility.

Because the trial court’s erroneous refusal to submit Central Texas or Cummings caused

MCI to be 100% liable, that error was reasonably calculated to cause, and probably

caused, the rendition of an improper judgment. See Olympic Arms, 176 S.W.3d at 576.

We sustain in part MCI’s first issue.

                               V. Issues Not Addressed

       Because of our disposition of MCI’s first issue, we will not address MCI’s factual

sufficiency complaints in issues four and five, nor will we address MCI’s second

(refusal to permit cross-examination) and seventh (charge error) issues. See TEX. R. APP.

P. 47.1.

                                        VI. Conclusion

       Having sustained in part MCI’s first issue, we reverse the trial court’s judgment

and remand this cause for further proceedings consistent with this opinion.




                                                 BILL VANCE
                                                 Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed September 10, 2008
[CVPM]




MCI v. Hinton                                                                     Page 45
