IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 02-0381

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F.F.P. Operating = Partners,=20 L.P., D/B/A Mr. Cut Rate #602, Petitioner,

Xavier Duenez and = Wife Irene=20 Duenez, as Next Friends of Carlos Duenez and Pablo Duenez, Minors,=20 Respondents

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On Petition for Review from = the

Court of Appeals for the Thirteenth = District=20 of Texas

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Argued on November=20 30, 2005

Justice Wainwright delivered = the=20 opinion of the Court, in which Justice=20 Hecht, Justice Brister, Justice Medina, Justice Green, Justice Johnson,=20 and Justice Willett=20 joined.

Chief Justice Jefferson filed = a=20 dissenting opinion.

Justice O=92Neill filed a = dissenting=20 opinion.

We = are asked=20 to revisit our holding in Smith v. Sewell that the proportionate=20 responsibility scheme of chapter 33 of the Texas Civil Practice and = Remedies=20 Code requires an apportionment of responsibility under chapter 2 of the=20 Alcoholic Beverage Code. 858 S.W.2d 350 (Tex. 1993). We decline the = invitation=20 to reverse Sewell and instead affirm its holding that the = language of the=20 proportionate responsibility statute includes claims under the Dram Shop = Act.=20 Neither the purpose nor the language of the Act makes a dram shop = automatically=20 responsible for all of the damages caused by an intoxicated patron, = regardless=20 of a jury=92s determination of the dram shop=92s proportion of = responsibility.=20 Instead, pursuant to Chapter 33, a dram shop is responsible for its=20 proportionate share of the damages as determined by a jury. Accordingly, = we=20 reverse the court of appeals=92 judgment and remand the case for a new = trial.

I. Factual and Procedural Background

After=20 spending the day cutting firewood while consuming a case and a half of = beer,=20 Roberto Ruiz drove his truck to a Mr. Cut Rate convenience store owned = by F.F.P.=20 Operating Partners, L.P. and purchased a twelve-pack of beer. The = store=92s=20 assistant manager, Carol Solis, sold the beer to Ruiz. Ruiz then climbed = into=20 his truck, opened a can of beer, and put the open beer can between his = legs.=20 There was conflicting testimony about whether Ruiz actually drank any of = the=20 beer that he purchased at Mr. Cut Rate.

Ruiz then=20 drove onto a nearby highway and swerved into oncoming traffic several = times. Two=20 cars dodged his truck to avoid a collision. As he crossed a bridge = approximately=20 a mile and a half from the Mr. Cut Rate convenience store, Ruiz swerved = across=20 the center line, hitting the Duenezes=92 car head-on. All five members = of the=20 Duenez family suffered injuries.

Ruiz was=20 arrested at the accident scene for drunk driving. He pled guilty to = intoxication=20 assault and was sentenced to prison. The Duenezes brought a civil suit = against=20 F.F.P., Ruiz, Solis, Nu-Way Beverage Company, and the owner of the land = where=20 Ruiz had spent the afternoon cutting firewood and drinking. F.F.P. filed = a=20 cross-action against Ruiz, naming him as a responsible third-party and a = contribution defendant. The Duenezes thereafter nonsuited all defendants = except=20 F.F.P.

At = the=20 pretrial conference, the Duenezes obtained a partial summary judgment = that=20 chapter 33 of the Texas Civil Practice and Remedies Code, the = proportionate=20 responsibility statute, did not apply to this case. The trial court then = severed=20 F.F.P.=92s cross-action against Ruiz, leaving F.F.P. as the only = defendant for=20 trial. F.F.P.=92s severed action against Ruiz remains pending in the = trial court.=20

The = Duenezes=92=20 claim against F.F.P. proceeded to trial. At the charge conference, the = trial=20 court refused to submit questions for determination of Ruiz=92s = negligence. The=20 court also failed to submit questions on the proportionate = responsibility of=20 Ruiz and F.F.P.

The = jury=20 found that when the alcohol was sold to Ruiz, it was =93apparent to the = seller=20 that he was obviously intoxicated to the extent that he presented a = clear danger=20 to himself and others,=94 and that Ruiz=92s intoxication was a proximate = cause of=20 the collision. The jury returned a $35 million verdict against F.F.P., = upon=20 which the trial court rendered judgment.

The = court of=20 appeals affirmed the trial court=92s judgment, holding:

[I]n=20 third-party actions under the Dram Shop Act in which there are no = allegations of=20 negligence on the part of the plaintiffs, a provider is vicariously = liable for=20 the damages caused by an intoxicated person, and such a provider is not = entitled=20 to offset its liability by that of the intoxicated person.

69 = S.W.3d 800,=20 805. In reaching that conclusion, the court distinguished our decision = in=20 Sewell, in which we held that the comparative responsibility = statute=20 applied to dram-shop causes of action. Id. The court of appeals = concluded=20 that Sewell=92s holding was limited to first-party actions in = which the=20 intoxicated patron is suing for his own injuries and is inapplicable = when the=20 plaintiff is an innocent third party injured by an intoxicated patron.=20 Id. at 805-06. The court also held that the trial court did not = abuse its=20 discretion in severing F.F.P.=92s contribution claim against Ruiz, = concluding that=20 because F.F.P.=92s statutory liability was vicarious and not direct, = F.F.P. had an=20 indemnity claim rather than a contribution claim against Ruiz. = Id. at=20 807-08. We granted F.F.P.=92s petition for review and issued an opinion = on=20 September 3, 2004. F.F.P. filed a motion for rehearing. While the motion = was=20 pending, Xavier, Irene, and Ashley Duenez settled their claims against = F.F.P.=20 Only the claims of Pablo and Carlos Duenez against F.F.P. remained = before the=20 Court. On April 8, 2005, we granted the F.F.P.=92s motion for rehearing. = The case=20 was re-argued on November 30, 2005. Today we withdraw the Court=92s = previous=20 opinion and substitute this one in its place.

II. Statutory Interpretation

&nbs= p;=20 Statutory construction is a legal question that we review de novo, = ascertaining=20 and giving effect to the Legislature=92s intent as expressed by the = plain and=20 common meaning of the statute=92s words. Tex. Dep=92t of Transp. v. = City of=20 Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).

A. The Dram Shop Act

The = Legislature enacted the Dram Shop Act to =93deter providers of alcoholic = beverages=20 from serving alcoholic beverages to obviously intoxicated individuals = who may=20 potentially inflict serious injury on themselves and on innocent members = of the=20 general public.=94 Sewell, 858 S.W.2d at 356. Section 2.02 of the = Alcoholic=20 Beverage Code sets forth the scope and elements of this action:

(a)=20 This chapter does not affect the right of any person to bring a common = law cause=20 of action against any individual whose consumption of an alcoholic = beverage=20 allegedly resulted in causing the person bringing the suit to suffer = personal=20 injury or property damage.

(b)=20 Providing, selling, or serving an alcoholic beverage may be made the = basis of a=20 statutory cause of action under this chapter and may be made the basis = of a=20 revocation proceeding under section 6.01(b) of this code upon proof = that:

(1) at=20 the time the provision occurred it was apparent to the provider that the = individual being sold, served, or provided with an alcoholic beverage = was=20 obviously intoxicated to the extent that he presented a clear=20 danger to himself and others; and

(2)=20 the intoxication of the recipient of the alcoholic beverage was a = proximate=20 cause of the damages suffered.

Tex. Alco. Bev. Code =A7 2.02 = (emphasis=20 added).[1] If a plaintiff meets the = =93onerous=20 burden of proof=94 imposed by the Dram Shop Act, then the provider is = liable for=20 damages proximately caused by its employees or patrons. El Chico = Corp. v.=20 Poole, 732 S.W.2d 306, 314 (Tex. 1987); see also Tex. Alco. Bev. Code =A7 = 2.03.[2] In the Dram Shop Act, the = Legislature=20 created a duty, not recognized at common law, on alcohol providers and = increased=20 the potential liability of providers as a means of deterring providers = from=20 serving obviously intoxicated individuals. Historically, the =93rule of=20 non-liability=94 held that an alcohol provider owed no duty to third = persons for=20 injuries caused by the provision of alcohol. Sewell, 858 S.W.2d = at=20 352; Poole, 732 S.W.2d at 310; see also Joel Smith, = Annotation,=20 Common-Law Right of Action for Damages Sustained by Plaintiff in = Consequence=20 of Sale of Gift of Intoxicating Liquor or Habit-Forming Drug to = Another, 97=20 A.L.R.3d 528 (1980). Additionally, providers were generally able to = avoid=20 liability because the consumption of alcohol, rather than its provision, = was=20 considered the sole proximate cause of injury to the patron and third=20 persons. Poole, 732 S.W.2d at 309. Finally, even if the sale was = a=20 proximate cause of intoxication, injury was considered to be an = unforeseeable=20 result of the patron=92s intoxication. Id. The common law = effectively=20 precluded dram shops from incurring liability when their intoxicated = patrons=20 caused injury to third parties. Id.; see also Mata v. = Schoch, 337=20 B.R. 135, 136 (Bankr. S.D. Tex. 2005).

Relying on=20 =93modern analysis,=94 in 1987 the Court in Poole discarded the = =93absolute=20 rule of no liability=94 and imposed a duty on a dram shop not to serve = alcoholic=20 beverages to a person it knows or should know is intoxicated. = Poole, 732=20 S.W.2d at 310. For the first time, the Court held that a provider of = alcohol is=20 negligent as a matter of law when he knowingly sells an alcoholic = beverage to an=20 intoxicated person, and the Court relaxed the standards for proving = proximate=20 cause and foreseeability. Id. at 313-14. The claimant was still = required=20 to prove that the dram shop=92s conduct was the proximate cause of his = or her=20 injury to recover. Id. at 313.

The = Legislature acted to address the problem of providers=92 excessive = provision of=20 alcohol to patrons. A week after this Court issued Poole, the = Dram Shop=20 Act became effective and narrowed potential liability from Poole = in=20 several ways. See id.; Parker v. 20801, Inc., 194 S.W.3d = 556, 560=20 n.4 (Tex. App.=97Houston [14th Dist.] 2006, pet. filed). First, it made = the Act=20 the exclusive means of pursuing a dram shop for damages for = intoxication. Tex. Alco. Bev. Code =A7 = 2.03.[3] Second, as an element of = liability,=20 the patron must be =93obviously intoxicated,=94 not just = intoxicated, when=20 the dram shop serves him alcohol. Id. =A7 2.02 (emphasis = added).[4] Nowhere in the legislation = was the=20 common law requirement that the claimant prove that the dram shop = proximately=20 caused the injuries eliminated. As under the common law, a dram shop = claimant=20 =93must establish that the liquor licensee=92s negligent conduct = proximately caused=20 his injuries.=94 Poole, 732 S.W.2d at 313; accord Sewell, = 858 S.W.2d=20 at 355 (citing Tex. Alco. Bev. = Code=20 =A7 2.02) (=93Under Chapter 2, the intoxication of the recipient = must be a=20 proximate cause of the damages.=94).

The = common=20 foundation of both Chief = Justice=20 Jefferson=92s and Justice=20 O=92Neill=92s dissents is the contention that the Legislature = abolished the=20 element of proximate cause for a third party to recover from a dram shop = and=20 replaced it with =93a form of vicarious liability,=94 as Chief Justice Jefferson = labels it, or=20 =93imputed liability,=94 as Justice=20 O=92Neill terms it. The dissenters contend that once the dram = shop provides=20 alcohol to an obviously intoxicated patron, it becomes responsible for = all=20 subsequent injuries caused by the patron=92s intoxication. This = assumption forms=20 the basis of their conclusions that submitting a proportionate liability = question to the jury does not change the dram shop=92s joint and several = liability=20 for all of the damages. For example, even if the patron consumed none of = the=20 alcohol purchased from the dram shop, the dissenters would hold the = provider=20 liable for all the injuries caused by the patron to third parties. The = statutes=20 do not support their approaches, which would nullify the effect of the = expansive=20 language in the proportionate responsibility statute.

The = dissenters contend that the failure to read vicarious or imputed = liability into=20 the Act undermines the legislative purpose. On the contrary, the Act=20 accomplishes the objective of deterring the sale of alcohol to obviously = intoxicated persons in several ways. The Act provides a previously = foreclosed=20 remedy against sellers of alcohol. And unlike the prior common law, dram = shops=20 now owe a duty to patrons and injured third parties under specified=20 circumstances and can be subject to civil liability for the damages they = proximately cause. Compare Poole, 732 S.W.2d at 309 with = Sewell,=20 858 S.W.2d at 355. The Legislature also deterred irresponsible conduct = by=20 providing that a dram shop=92s alcohol license is subject to revocation = for=20 violating the Act. Tex. Alco. = Bev.=20 Code =A7 2.02(b).[5]

Justice O=92Neill finds the = imposition of=20 imputed liability on providers in a single phrase in Section 2.03 of the = Act,=20 set out in italics: =93The liability of providers under this chapter = for the=20 actions of their customers, members, or guests who are or become = intoxicated=20 is in lieu of common law or other statutory law warranties and = duties of=20 providers of alcoholic beverages.=94 __ S.W.3d __; Tex. Alco. Bev. Code =A7 = 2.03.[6] Although Justice O=92Neill states that = Chapter 33=20 applies, she nevertheless concludes that =93the dram shop is liable to = injured=20 third parties for both its own actions and for its patron=92s share of=20 responsibility.=94 __ S.W.3d __. She borrows support for this position = from=20 section 7 of the Restatement of Torts: a party to whom liability is = imputed and=20 who is also independently liable =93is responsible for the share of the = verdict=20 assigned to [the party whose liability is imputed] and is also = responsible for=20 the share of the verdict assigned to its own negligence.=94 Id. = at __;=20 see also Restatement = (Third) of=20 Torts: Apportionment of Liability =A7 7 cmt. j (2000) (stating that =93[t]he = employer is=20 responsible for the share of the verdict assigned to the employee and is = also=20 responsible for the share of the verdict assigned to its own = negligence=94). The=20 common law has been supplanted by statute and Section 7 is not the law = on this=20 issue in Texas. The Proportionate Responsibility Act and the Dram Shop = Act=20 govern this issue.

Justice O=92Neill insists = that the=20 Legislature intended the phrase =93the liability of providers under this = chapter=20 for the actions of their customers,=94 to mean that providers under this = chapter=20 are liable for the actions of their customers. __ S.W.3d __; = Tex. Alco. Bev. Code =A7 = 2.03.[7] The statute can mean this = only if=20 words not in the text are inserted. Read as written, in context, Section = 2.03=20 simply means that the Dram Shop Act provides the exclusive remedy = against an=20 alcohol provider for damages caused by an intoxicated patron at least 18 = years=20 of age=97i.e., common law remedies are no longer available. We do not = read Section=20 2.03 to say that a provider of alcohol is responsible, without regard to = fault,=20 for one hundred percent of the damages caused by an intoxicated = patron.

&nbs= p;=20 Chief Justice Jefferson = seeks to=20 support his position with an analogy to reasoning in vicarious liability = theory=20 for negligent entrustment cases. __ S.W.3d __. Generally in Texas, the = doctrine=20 of vicarious liability, or respondeat superior, makes a principal liable = for the=20 conduct of his employee or agent. See Baptist Mem. Hosp. Sys. v. = Sampson,=20 969 S.W.2d 945, 947 (Tex. 1998). This liability is based on the = principal=92s=20 control or right to control the agent=92s actions undertaken to further = the=20 principal=92s objectives. See Wingfoot v. Alvarado, 111 S.W.3d = 134, 136=20 (Tex. 2003); Prosser & = Keeton on the=20 Law of Torts, =A7=A7 69-70 (W. Page Keeton et al. eds., 5th ed. = 1984). Should=20 an innocent third party suffer injury at the hands of the agent or = employee, the=20 theory is that the enterprise itself, not only the agent, should be held = accountable. See Wingfoot, 111 S.W.3d at 146; Keeton et al., =A7 69; see = also=20 Restatement (Third) of = Torts:=20 Apportionment of Liability =A7 13 (2000). Here, the patron is not = the agent=20 or employee of the dram shop, the provider has no control or right to = control=20 the patron, and the patron=92s actions causing the accident are not in = furtherance=20 of the provider=92s business. The analogy to negligent entrustment, a = form of=20 vicarious liability, suffers from similar deficiencies. As the late Dean = Prosser=20 explained, the basis for imposing liability on the owner of the thing = entrusted=20 to another is that ownership of the thing gives the right of control = over its=20 use. Keeton et al., =A7 = 73; see=20 Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. = 1987)=20 (proving negligence by a theory of negligent entrustment requires = establishment=20 of ownership). Hence, an owner may have to answer in damages for = negligently=20 exercising her control by entrusting an item to a person who the owner = knew or=20 should have known would act in a reckless or incompetent manner.=20 Schneider, 744 S.W.2d at 596. Because there is no ownership by = the dram=20 shop of the object used by a patron to cause the accident, the vicarious = liability doctrine does not support=97and the Dram Shop Act does not = create=97the=20 indemnification scheme proposed by Justice O=92Neill or the = vicarious=20 liability scheme that Chief = Justice=20 Jefferson would create. Their positions expand the theory of = vicarious=20 liability beyond its traditional boundaries.

B. Chapter 33

Chapter 33 of=20 the Texas Civil Practice and Remedies Code governs the apportionment of=20 responsibility in cases within its scope. The 1995 version of the = proportionate=20 responsibility scheme applies to this case because the collision that = injured=20 the Duenezes occurred in July 1997. At that time, section 33.013 of the = Civil=20 Practice and Remedies Code provided, with certain exceptions, that a = defendant=20 was liable only for the percentage of responsibility found by the trier = of fact,=20 unless the percentage of responsibility exceeded fifty percent. Tex. Civ. Prac. & Rem. Code = =A7=20 33.013.[8] If a defendant=92s = percentage of=20 responsibility exceeded fifty percent, that defendant was jointly and = severally=20 liable for all of the claimant=92s recoverable damages. Id.

Section=20 33.003 provided that the factfinder was to compare a defendant=92s = responsibility=20 with the responsibility of the claimant, other defendants, and any = responsible=20 third party joined by a defendant. Tex.=20 Civ. Prac. & Rem. Code =A7 33.003.[9] The statute required the = trier of fact=20 to apportion responsibility

with=20 respect to each person=92s causing or contributing to cause in any way = the harm=20 for which recovery of damages is sought, whether by negligent act or = omission,=20 by any defective or unreasonably dangerous product, by other conduct or = activity=20 that violates an applicable legal standard, or by any combination of = these . . .=20 .

Id. =A7=20 33.003(a).

Chapter 33=20 applied to a broad range of cases, including =93any cause of action = based on tort=20 in which a defendant, settling person, or responsible third party is = found=20 responsible for a percentage of the harm for which relief is sought=94 = and actions=20 brought under the Texas Deceptive Trade Practices-Consumer Protection = Act.=20 Id. =A7=A7 33.002(a),[10] (h).[11] Section 33.002(c) expressly = excluded=20 from its coverage actions to collect workers=92 compensation benefits, = actions=20 against an employer for exemplary damages arising out of the death of an = employee, and claims for exemplary damages included in an action to = which this=20 chapter otherwise applies.[12] Section 33.002(b) excluded=20 application of Chapter 33 to actions for damages caused by a list of = intentional=20 criminal acts committed in concert with another person by imposing joint = and=20 several liability.[13] Chapter 33 does not = specifically=20 exclude the Dram Shop Act.

C. Smith v. Sewell

This Court=20 addressed the applicability of Chapter 33 to the Dram Shop Act in = Smith v.=20 Sewell, 858 S.W.2d 350 (Tex. 1993). When Sewell was decided, = Chapter=20 33 provided that it applied =93[i]n an action to recover damages for = negligence .=20 . . or an action for products liability grounded in negligence.=94 Tex. Civ. Prac. & Rem. = Code =A7=20 33.001(a).[14] The Court held that the = essential=20 elements of a dram-shop action replicated those of a negligence claim, = hence=20 Chapter 33 applied to the Act. Sewell, 858 S.W.2d at 355-56.

In=20 Sewell, the plaintiff became intoxicated at a bar. Id. at = 351. On=20 his way home, he lost control of his car and was severely injured in a = one-car=20 accident. He sued the bar. This Court explicitly recognized that a cause = of=20 action against a provider of alcohol is a direct action for the wrongful = conduct=20 of the provider: =93[L]iability under [the Dram Shop Act] is premised on = the=20 conduct of the provider of the alcoholic beverages=97not the conduct of = the=20 recipient or a third party.=94 Id. at 355. The Court reasoned = this is true=20 =93regardless of whether the intoxicated individual injures himself or a = third=20 party.=94 Id. The Court then examined the comparative = responsibility scheme=20 and its exclusions and concluded that a cause of action against a = provider of=20 alcohol was not excluded from the Comparative Responsibility Act, and = therefore,=20 the comparative responsibility scheme applied. Id. at 356. The = Court=20 identified the Legislature=92s intent, expressed under Chapter 33, as = =93requir[ing]=20 the trier of fact to determine the percentage of responsibility = attributable to=20 each of the parties involved in causing the injury.=94 Id. = (emphasis=20 added). Under the combined effect of both statutes, an intoxicated = person =93will=20 be entitled to recover damages only if his percentage of responsibility = is found=20 to be less than or equal to 50 percent,=94 and any recovery must be = reduced by the=20 percentage of the intoxicated individual=92s responsibility. Id. = The Court=20 recognized that this interpretation of the statutes ensured a consistent = and=20 equitable approach to dram-shop liability, whether or not the case = involved=20 first or third person liability. Id.

In = this case,=20 the court of appeals held that Sewell did not apply to = third-party Dram=20 Shop claims like this one. 69 S.W.3d at 805. The court interpreted = Sewell=20 as limiting an intoxicated patron=92s recovery against a provider = according to the=20 intoxicated person=92s percentage of responsibility but not imposing = similar=20 limitations when a third party seeks recovery against a provider for = damages=20 caused by an intoxicated patron=92s actions. Id. Instead, the = court of=20 appeals concluded that a provider is vicariously liable for the damages = caused=20 by an intoxicated employee or patron in third party actions in which = there are=20 no allegations of negligence of the third party. Id. The court = reasoned=20 that this interpretation is consistent with the Dram Shop Act because = the Act=20 imposes liability on the provider for the actions of the intoxicated = person,=20 =93just as an employer is liable for the damages caused by an employee = in the=20 course and scope of the employment.=94 Id. at 806 (citations = omitted).=20 Thus, the court concluded, =93a division of liability would be = meaningless: the=20 vicariously liable party is liable for the other party=92s actions, as = though=20 those actions were its own.=94 Id.

This is=20 contrary to our opinion in Sewell, and rebutted by the deterrent = effects=20 of the Act, discussed above. This Court has interpreted the Dram Shop = Act to=20 create liability based =93on the conduct of the provider of the = alcoholic=20 beverages=97not the conduct of the recipient or a third party.=94 = Sewell, 858=20 S.W.2d at 355. The conduct for which the provider may be held liable is = the same=20 conduct =93whether the intoxicated individual injures himself or a third = party.=94=20 Id. Thus, the premise of the court of appeals=92 vicarious = liability=20 holding=97that the provider=92s liability stems from the conduct of the = intoxicated=20 individual instead of the provider=92s own conduct=97runs contrary to = both the Dram=20 Shop Act and our interpretation of the Act in Sewell. Compare=20 Sewell, 858 S.W.2d at 355, with 69 S.W.3d at 806.

The = dissents=20 likewise recognize significant problems with their approaches in light = of this=20 precedent. They approach the problem of Sewell differently. Chief Justice Jefferson = argues that=20 Sewell was wrongly decided but nevertheless would keep the = holding intact=20 as to first=96party claims and create a different rule for third=96party = claims. __=20 S.W.3d __. Similarly, Justice=20 O=92Neill would limit Sewell=92s holding to first=96party = claims thereby=20 distinguishing it from the instant case. __ S.W.3d __. Nothing in the = statute=20 supports a different rule in this regard for first=96 versus = third=96party claims.=20 In fact, the statute anticipates the existence of both types of claims = by=20 describing the =93person bringing the suit=94 broadly and referring to = the danger=20 created by the intoxicated person as impacting =93himself and others.=94 = Tex. Alco. Bev. Code =A7 = 2.02.[15] Contrary to Chief Justice Jefferson=92s = dissent,=20 nothing in the Dram Shop Act prevents a provider from =93lessen[ing] or = escap[ing]=20 liability altogether=94 if a jury determined that the intoxicated patron = was=20 completely responsible for the damages and injuries suffered by a = third=96party.=20 See __ S.W.3d __. Refusing to apply Sewell=92s rule of law = to cases=20 in which a third party is injured as a result of an intoxicated = person=92s actions=20 is contrary to the language of the Dram Shop Act, to the premise of=20 Sewell, and to the purpose of the Dram Shop Act: the provider=92s = liability=20 stems from its own conduct.

D. Legislative Intent

Our = review is=20 confined to identifying the expressed legislative intent and applying = it. Even=20 if this Court were to agree with the court of appeals that holding a = provider=20 vicariously liable for a patron=92s intoxication may be a legitimate = public=20 policy, we would still be constrained to faithfully apply the = Legislature=92s=20 statutory proportionate responsibility scheme. Imposing vicarious = liability in=20 dram-shop cases conflicts with the Proportionate Responsibility Act. The = court=20 of appeals suggested that the Legislature did not intend for an innocent = third=20 party to bear the risk of an intoxicated patron=92s insolvency. But, by = enacting=20 Chapter 33, the Legislature made the policy decision that an innocent = third=20 party, suing the intoxicated patron and the dram shop, could be burdened = with=20 the risk of a joint tortfeasor=92s insolvency. A tortfeasor who was = found less=20 than fifty-one percent responsible does not have to pay the entire = amount of=20 damages, only his or her proportionate share. Tex. Civ. Prac. & Rem. = Code=20 =A7=A7 33.013(a), (b)(1).[16]

We = recognize=20 that there may be a greater incentive to avoid conduct that leads to=20 responsibility for higher damages than to avoid conduct that leads to=20 responsibility for lower damages. Thus, a statute that makes providers = liable=20 for all the damages caused by an intoxicated patron could be a greater = deterrent=20 to serving that patron. That may influence the drafting of a statute, = but it=20 says little about how to interpret the words of the Dram Shop and = Proportionate=20 Responsibility Acts. The statutes only hold providers responsible for = their own=20 conduct causing injury. On the other side of the coin, it is a = fundamental tenet=20 of tort law that an entity=92s liability arises from its own = injury-causing=20 conduct. Under the dissenters=92 positions, the provider would be = responsible for=20 all the damages caused by an inebriated patron even if he never drank = any of the=20 product purchased from the provider. The same would occur if an = inebriated=20 patron drank a bit of the dram shop=92s alcohol but evidence established = that it=20 did not contribute any further to the deterioration of the patron=92s = ability to=20 drive safely. We recognize some of the alternatives the Legislature = considered=20 as it drafted the statutes; however, we do not pick and choose among = policy=20 options on which the Legislature has spoken. Our role is =93not to = second-guess=20 the policy choices that inform our statutes or to weigh the = effectiveness of=20 their results; rather, our task is to interpret those statutes in a = manner that=20 effectuates the Legislature=92s intent.=94 McIntyre v. Ramirez, = 109 S.W.3d=20 741, 748 (Tex. 2003). Upon a finding of liability, the statutes make = dram shops=20 responsible for the proportionate share of the injuries their conduct=20 caused.

The = broad=20 coverage of the proportionate responsibility statute to tort claims is=20 persuasive. The Chapter 33 proportionate responsibility scheme includes=20 exceptions for certain torts, but claims against providers of alcohol = are not=20 among those exceptions. See, e.g., Tex. Civ. Prac. & Rem. Code=20 =A7=A7 33.002(b),[17] (c).[18] For example, the = Legislature carved=20 out exceptions for a host of criminal acts, declaring that there should = be joint=20 and several liability instead of proportionate responsibility, but only = if there=20 was specific intent to do harm to others and the defendant acted in = concert with=20 another. Id. =A7 33.002.[19] The list of crimes is = numerous and=20 broad in scope, ranging from capital murder to fraudulent destruction of = a=20 writing, and also includes theft when =93the punishment level = . . . is a=20 felony of the third degree or higher.=94 Tex. Civ. Prac. & Rem. = Code=20 =A7 33.002(b)(13).[20] Section 33.002(c) expressly = excluded=20 from its coverage actions to collect workers=92 compensation benefits, = actions=20 against an employer for exemplary damages arising out of the death of an = employee, and claims for exemplary damages included in an action to = which this=20 chapter otherwise applies.[21] When the Legislature has = chosen to=20 impose joint and several liability rather than proportionate liability, = it has=20 clearly said so.

The = Legislature created a strict liability cause of action against a person = who=20 manufactures methamphetamine for injuries, damages, or death arising = from the=20 manufacture or exposure to the manufacturing process of that drug. Tex. Civ. Prac. & Rem. = Code=20 =A7=A7 99.002=96.003. The Legislature declared that a person who = manufactures=20 methamphetamine and is found liable for any amount of damages arising = from the=20 manufacture is jointly liable with any other defendant for the entire = amount of=20 damages arising from the manufacture. Id. =A7 99.004. In = both the=20 statute that created the cause of action against such manufacturers and = in=20 amendments to the Proportionate Responsibility Act, the Legislature = specifically=20 said that the proportionate responsibility scheme =93does not apply in = an action=20 for damages arising from the manufacture of methamphetamine.=94 = Id.=20 =A7 99.005; see also id. =A7 33.002(c)(3). The = Legislature did not=20 carve out an exclusion for alcohol providers in either the Proportionate = Responsibility Act or the Dram Shop Act.

Both dissents=20 struggle to conclude that an injured third party may recover his damages = entirely from the alcohol provider under the Dram Shop Act. Chief Justice Jefferson = argues that the=20 Act creates =93a form of vicarious liability,=94 while Justice O=92Neill allows a = jury to=20 apportion liability but ultimately holds the provider liable for the = full amount=20 of damages, regardless of the jury=92s determination. The stated public = policy=20 behind the Alcoholic Beverage Code, including the Dram Shop Act, is = =93the=20 protection of the welfare, health, peace, temperance, and safety of the = people=20 of the state.=94 Tex. Alco. = Bev. Code=20 =A7 1.03. More specifically, the Dram Shop Act codifies the = exclusive=20 action against an alcohol provider for injuries or damages resulting = from the=20 intoxication of a patron. Id. =A7 2.02. The legislative intent to = protect=20 the public and provide a potential remedy against an alcohol provider = does not=20 equate to a guarantee of recovery against a provider by an injured = party. The=20 Act simply supplants in a single codified action all prior common law = theories=20 that previously could have been employed by the injured party (either a = third=20 party or the intoxicated patron himself) against a provider. See = id. =A7=20 2.03. While the dissents=92 positions might express sound public policy, = we are=20 constrained to conclude that neither correctly applies the = Legislature=92s=20 statutory proportionate responsibility scheme. Both read more into the = Dram Shop=20 Act than the words chosen by the Legislature can bear.

At = the time=20 of the Duenezes=92 injuries, the proportionate responsibility scheme = imposed joint=20 and several liability on those who caused toxic tort injuries and those = who=20 released hazardous substances into the environment if their = responsibility was=20 equal to or greater than fifty percent. Tex. Civ. Prac. & Rem. Code=20 =A7 33.013(c).[22] In such cases, liability = was not=20 limited by proportionate responsibility. In 2003, the Legislature = revisited that=20 exclusion and repealed it in its entirety.[23] Now, defendants found = liable for=20 these tortious acts are subject to the general proportionate = responsibility=20 scheme. The Legislature seemed intent on creating a general scheme of=20 proportionate responsibility, subject to specific statutory = exclusions.

Finally, our=20 controlling interpretation of that statutory scheme has remained in = place since=20 our 1993 decision in Smith v. Sewell. 858 S.W.2d at 356 (holding = that=20 =93[a]pplication of the principles of comparative responsibility to = causes of=20 action brought under [the Dram Shop Act] establishes a consistent and = equitable=20 approach to the issue of =91dramshop liability=92 generally, and first = party=20 =91dramshop liability=92 specifically=94). In the thirteen years since = Sewell=20 was decided, the Legislature has amended the Dram Shop Act and has = extensively=20 amended the proportionate responsibility statutes, but it has never = excluded a=20 cause of action against a provider of alcohol from comparative or = proportionate=20 responsibility. We presume that the Legislature knew of our holding in=20 Sewell and that by subsequently re-enacting the Proportionate=20 Responsibility Act and the Dram Shop Act, it accepted this Court=92s = construction=20 of those statutes. =93=91The Legislature must be regarded as intending = statutes,=20 when repeatedly reenacted, as in the case here, to be given that = interpretation=20 which has been settled by the courts.=92=94 Wich v. Fleming, 652 = S.W.2d 353,=20 355 (Tex. 1983) (quoting Marmon v. Mustang Aviation, Inc., 430 = S.W.2d=20 182, 187 (Tex. 1968)); Coastal Indus. Water Auth. v. Trinity Portland = Cement=20 Div., Gen. Portland Cement Co., 563 S.W.2d 916, 918 (Tex. 1978). =

Given the=20 many instances in which the Legislature has (1) expressly said that = certain=20 causes of action are excluded from the Proportionate Responsibility Act, = which=20 would otherwise limit liability commensurate with proportionate = responsibility,=20 and (2) has expressly tailored special joint and several liability=20 provisions for some causes of action, the phrase in Section 2.03 cannot=20 reasonably be read to require vicarious liability and joint and several=20 liability in lieu of proportionate liability for alcohol providers.

The = dissenters suggest that the Court=92s opinion exonerates dram shops from = liability. They draw a stark distinction between excusing a dram shop = from=20 liability for its conduct that violates the Act, which they assert to be = the=20 Court=92s opinion, and making the provider liable for all the injuries = caused by=20 an inebriated patron, which is the dissenters=92 position. For several = reasons,=20 our interpretation does not excuse dram shops from liability for their = conduct.=20 First, it is simply inaccurate to describe the Court=92s holding as = allowing the=20 dram shops to escape liability. The central issue in this case is the=20 apportionment of damages among liable parties. Second, we follow the=20 Legislature=92s guidance in the language of the statute, as explained = above.=20 Third, it is not true that juries will always assign most of the = responsibility=20 for injury, as between a provider and an inebriated patron, to the = patron.=20 Juries have found the dram shop equally or more responsible than the = patron for=20 injuries to third parties. See, e.g., I-Gotcha, Inc. v. = McInnis,=20 903 S.W.2d 829, 837 (Tex. App.=97 Fort Worth 1995, writ denied) (jury = found that=20 the dram shop proximately caused fifty-one percent of the injuries);=20 Venetoulias v. O=92Brien, 909 S.W.2d 236, 239 (Tex. = App.=97Houston [14th=20 Dist.] 1995, writ dism=92d by agr.) (trial court found that the patron = proximately=20 caused thirty-three percent of the injuries and the dram shop = thirty-three=20 percent). Unlike Chief Justice = Jefferson=92s position, which would take the question of = apportioning=20 responsibility away from the jury, we leave this determination to the=20 fact-finder imbued with =93constitutional authority to weigh conflicting = evidence.=94 See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.2d = 897, 913=9614=20 (Tex. 2004) (Jefferson, C.J., dissenting).

III. Severance

The = trial=20 court severed F.F.P.=92s cross-claim against Ruiz and then tried the = case with=20 F.F.P. as the only defendant. The court of appeals affirmed the trial = court=92s=20 severance order, concluding that because F.F.P. was vicariously liable = for=20 Ruiz=92s conduct, F.F.P.=92s right of recovery, if any, was through an=20 indemnification action only. 69 S.W.3d at 807. The court of appeals held = that=20 any indemnity claim F.F.P. might have against Ruiz would not accrue = until=20 F.F.P.=92s liability to the Duenezes=92 was =93fixed and certain.=94 = Id. at=20 807-08. By this reasoning, F.F.P.=92s claim for indemnification against = Ruiz would=20 not become actionable until an adverse judgment was taken. Id. = The court=20 rejected F.F.P.=92s request to include Ruiz as a responsible third party = under=20 Chapter 33, reasoning that F.F.P.=92s vicarious liability puts F.F.P. in = the same=20 position as Ruiz would have been. Id. at 808. Because Ruiz=92s = actions are=20 imputed to F.F.P., the court continued, Ruiz is not a responsible third = party=20 who may be included in a proportionate responsibility question. = Id.=20

Rule 41 of=20 the Texas Rules of Civil Procedure provides that =93[a]ny claim against = a party=20 may be severed and proceeded with separately.=94 We will not reverse a = trial=20 court=92s order severing a claim unless the trial court abused its = discretion.=20 Guar. Fed. Sav. Bank v. Horseshoe Op. Co., 793 S.W.2d 652, 658 = (Tex.=20 1990).

A = claim is=20 properly severable if (1) the controversy involves more than one cause = of=20 action, (2) the severed claim is one that would be the proper subject of = a=20 lawsuit if independently asserted, and (3) the severed claim is not so=20 interwoven with the remaining action that they involve the same facts = and=20 issues.

Id. We=20 have explained that avoiding prejudice, doing justice, and increasing=20 convenience are the controlling reasons to allow a severance. See id. =

As = already=20 explained, the Dram Shop Act does not make a provider vicariously liable = for the=20 conduct of an intoxicated patron. F.F.P.=92s liability arises from the = actions of=20 its employees and agents=97not through the actions of Ruiz. See = Sewell, 858=20 S.W.2d at 355. Thus, F.F.P.=92s claim against Ruiz is not one for = indemnification=20 that could be properly severed; it is one of contribution for Ruiz=92a=20 proportionate share of the damages for which he is responsible. = F.F.P.=92s claim=20 against Ruiz is =93interwoven with the remaining action=94: it involves = the same=20 facts and issues to be litigated in the Duenezes=92 action against = F.F.P. In fact,=20 to succeed in a claim against F.F.P., the Duenezes had to prove that = Ruiz was=20 clearly intoxicated and that his conduct proximately caused = damages=97the same=20 facts and issues that would be litigated in a separate suit by F.F.P. = against=20 Ruiz. The trial court abused its discretion in severing F.F.P.=92s claim = against=20 Ruiz.

Chapter 33=20 requires =93[t]he trier of fact, as to each cause of action asserted, = [to]=20 determine the percentage of responsibility . . . for [each claimant, = defendant,=20 settling person, and responsible third party who has been joined under = Section=20 33.004] with respect to each person=92s causing or contributing cause in = any way=20 the harm for which recovery of damages is sought . . . .=94 Tex. Civ. Prac. & Rem. Code = =A7=20 33.003. This statutory mandate is not discretionary; failing to = correctly apply=20 the law is an abuse of discretion. In re Kuntz, 124 S.W.3d 179, = 181 (Tex.=20 2003). Therefore, F.F.P. was entitled to a charge that included a = question to=20 allow the trier of fact in a single trial to determine Ruiz=92s = proportionate=20 share of responsibility. The trial court=92s severance constituted = reversible=20 error.

IV. Conclusion

The = trial=20 court abused its discretion by severing F.F.P.=92s claim against Ruiz, = proceeding=20 to trial with F.F.P. as the only defendant, and refusing to submit jury=20 questions for determination of Ruiz=92s negligence and proportion of=20 responsibility. We reverse the court of appeals judgment and remand the = case to=20 the trial court for a new trial.

________________________________________

J. = Dale=20 Wainwright

Justice

OPINION = DELIVERED:=20 November 3, 2006

^[1] The Legislature has amended much of the code = applicable=20 to this case. For clarity, the text references the codified version of = the=20 statutes applicable to the case as current law with the full citation = appearing=20 in footnotes. Citations without clarifying footnotes refer to the = version in=20 effect on the date of this opinion.

Act of June 1, 1987, 70th Leg., R.S., ch. 303, = =A7 3, 1987=20 Tex. Gen. Laws 1673, 1674, amended by Act of June 17, 2005, 79th = Leg.,=20 R.S., ch. 643, =A7 1, 2005 Tex. Gen. Laws 1617, 1617 (current version at = Tex. Alco. Bev. Code =A7=20 2.02).

^[2] Act of June 1, 1987, 70th Leg., R.S., ch. = 303, =A7 3,=20 1987 Tex. Gen. Laws 1673, 1674, amended by Act of June 20, 2003, = 78th=20 Leg., R.S., ch. 456, =A7 1, 2003 Tex. Gen. Laws 1698, 1698-99 (current = version at=20 Tex. Alco. Bev. Code = =A7=20 2.03(a)).

^[3] Act of June 1, 1987, 70th Leg., R.S., ch. = 303, =A7 3,=20 1987 Tex. Gen. Laws 1673, 1674 (amended 2003).

^[4] Act of June 1, 1987, 70th Leg., R.S., ch. = 303, =A7 3,=20 1987 Tex. Gen. Laws 1673, 1674 (amended 2005).

^[5] Act of June 1, 1987, 70th Leg., R.S., ch. = 303, =A7 3,=20 1987 Tex. Gen. Laws 1673, 1674 (amended 2005).

^[6] Act of June 1, 1987, 70th Leg., R.S., ch. = 303, =A7 3,=20 1987 Tex. Gen. Laws 1673, 1674 (amended 2003).

^[7] Act of June 1, 1987, 70th Leg., R.S., ch. = 303, =A7 3,=20 1987 Tex. Gen. Laws 1673, 1674 (amended 2003).

^[8] Act of May 17, 1985, 69th Leg., R.S., ch. = 959, =A7 1,=20 1985 Tex. Gen. Laws 3242, 3271, amended by Act of June 3, 1987, = 70th=20 Leg., 1st C.S., ch. 2, =A7 2.09, 1987 Tex. Gen. Laws 37, 42, = amended by=20 Act of May 8, 1995, 74th Leg., R.S., ch. 136, =A7 1, 1995 Tex. = Gen. Laws=20 971, 974, amended by Act of June 2, 2003, 78th Leg., R.S., ch. = 204,=20 =A7=A7 4.07, 4.10(5), 2003 Tex. Gen. Laws 847, 858-59 (current = version at Tex. Civ. Prac. & Rem. Code=20 =A7 33.013).

^[9] Act of June 3, 1987, 70th Leg., 1st C.S., ch. = 2, =A7=20 2.06, 1987 Tex. Gen. Laws 37,41, amended by Act of May 8, 1995, = 74th=20 Leg., R.S., ch. 136, =A7 1, 1995 Tex. Gen. Laws 971, 972, amended by = Act of=20 June 2, 2003, 78th Leg., R.S., ch. 204, =A7 4.02, 2003 Tex. Gen. Laws = 847, 855=20 (current version at Tex. Civ. = Prac.=20 & Rem. Code =A7 33.003).

^[10] Act of June 3, 1987, 70th Leg., 1st C. S., = ch. 2, =A7=20 2.05, 1987 Tex. Gen. Laws 37,41, amended by Act of May 29, 1989, = 71st=20 Leg., R.S, ch. 380, =A7 4, 1989 Tex. Gen. Laws 1490,1492, = amended by=20 Act of May 8, 1995, 74th Leg., R.S., ch. 136, =A7 1, 1995 Tex. = Gen. Laws=20 971,971-72, amended by Act of May 21, 2001, 77th Leg., R.S., ch. = 643, =A7=20 2, 2001 Tex. Gen. Laws 1208, 1208-09, amended by Act of June 2, = 2003,=20 78th Leg., R.S., ch. 204, =A7 4, 2003 Tex. Gen. Laws 847, 858-59 = (current version=20 at Tex. Civ. Prac. & Rem. = Code=20 =A7 33.002).

^[11] Act of June 3, 1987, 70th Leg., 1st C. S., = ch. 2, =A7=20 2.05, 1987 Tex. Gen. Laws 37,41 (amended 1989, 1995, 2001, repealed=20 2003).

^[12] Act of June 3, 1987, 70th Leg., 1st C. S., = ch. 2, =A7=20 2.05, 1987 Tex. Gen. Laws 37,41 (amended 1989, 1995, 2001,=20 2003).

^[13] Act of June 3, 1987, 70th Leg., 1st C. S., = ch. 2, =A7=20 2.05, 1987 Tex. Gen. Laws 37,41 (amended 1989, 1995, 2001, repealed=20 2003).

^[14] Act of May 17, 1985, 69th Leg., R.S., ch. = 959, =A7 1,=20 1985 Tex. Gen. Laws 3242, 3271, amended by Act of June 3, 1987, = 70th Leg.=20 1st C.S., ch. 2, =A7 2.04, 1987 Tex. Gen. Laws 37, 40, amended by = Act of=20 May 8, 1995, 74th Leg., R.S., ch. 136, =A7 1, 1995 Tex. Gen. Laws 971, = 971=20 (current version at Tex. Civ. = Prac.=20 & Rem. Code =A7 33.002). Section 33.001 grounded the = applicability=20 of the statute in negligence. However, Section 33.002, added to the code = in=20 1987, is specifically devoted to the applicability of the chapter and is = rooted=20 in torts, giving the current law a broader application than that at the = time of=20 Sewell.

^[15] Act of June 1, 1987, 70th Leg., R.S., ch. = 303, =A7 3,=20 1987 Tex. Gen. Laws 1673, 1674 (amended 2005).

^[16] Act of May 17, 1985, 69th Leg., R.S., ch. = 959, =A7 1,=20 1985 Tex. Gen. Laws 3242, 3271 (amended 1987, 1995, = 2003).

^[17] Act of June 3, 1987, 70th Leg., 1st C. S., = ch. 2, =A7=20 2.05, 1987 Tex. Gen. Laws 37,41 (amended 1989, 1995, 2001, repealed=20 2003).

^[18] Act of June 3, 1987, 70th Leg., 1st C. S., = ch. 2, =A7=20 2.05, 1987 Tex. Gen. Laws 37,41 (amended 1989, 1995, 2001,=20 2003).

^[19] Act of June 3, 1987, 70th Leg., 1st C. S., = ch. 2, =A7=20 2.05, 1987 Tex. Gen. Laws 37,41 (amended 1989, 1995, 2001,=20 2003).

^[20] Act of June 3, 1987, 70th Leg., 1st C. S., = ch. 2, =A7=20 2.05, 1987 Tex. Gen. Laws 37,41 (amended 1989, 1995, 2001, repealed=20 2003).

^[21] Act of June 3, 1987, 70th Leg., 1st C. S., = ch. 2, =A7=20 2.05, 1987 Tex. Gen. Laws 37,41 (amended 1989, 1995, 2001,=20 2003).

^[22] Act of May 17, 1985, 69th Leg., R.S., ch. = 959, =A7 1,=20 1985 Tex. Gen. Laws 3242, 3271 (amended 1987, 1995, = 2003).

^[23] Act of June 2, 2003, 78th Leg., R.S., ch. = 204,=20 =A7 4.10(5), 2003 Tex. Gen. Laws 847,=20 859.