Designating Unknown Responsible Third Parties: How to Properly Designate an Unknown Driver

A responsible third-party is any person who is alleged to have caused or contributed in any way to causing the harm for which recovery of damages is sought.  Tex. Civ. Prac. & Rem. Code § 33.011.  When a party moves to designate an unknown person as a responsible third-party, Texas law provides additional requirements on the designating party.  Accordingly, in a case stemming from an automobile collision, a party attempting to designate an unknown driver as a responsible third party must be aware of all requirements Texas law provides.

Designating Unknown Persons

Texas Civil Practice and Remedies Code § 33.004 sets forth the procedure a defendant must follow to successfully designate a responsible third party.  Pursuant to this section, a defendant may “seek to designate a person as a responsible third party by filing a motion ... on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.”  Tex. Civ. Prac. & Rem. Code § 33.004.  The trial court must grant leave to designate a responsible third party “unless another party files an objection to the motion for leave on or before the 15th day after the date the motion is served.”  Tex. Civ. Prac. & Rem. Code § 33.004(f).  If another party timely files an objection, the court shall grant leave to designate the person as a responsible third party unless the objecting party establishes:

(1) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil Procedure; and

(2) after having been granted leave to replead, the defendant failed to plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirements of the Texas Rules of Civil Procedure.

Id. § 33.004(g) and (l)(2).  Under Rule 47 of the Texas Rules of Civil Procedure, a pleading must contain “a short statement of the cause of action sufficient to give fair notice of the claim.”  Tex. R. Civ. P. 47(a).  The test for fair notice is whether an opposing attorney of reasonable competence, with the pleadings before him, can determine the nature of the controversy and the testimony that would probably be relevant.  Coffey v. Johnson, 142 S.W.3d 414, 417 (Tex. App.—Eastland 2004, no pet.) (citing City of Houston v. Howard, 786 S.W.2d 391, 393 (Tex. App.—Houston [14th Dist.] 1990, writ den'd)).

When a party moves to designate an unknown person as a responsible third-party, Texas law provides additional requirements on the designating party.  See Tex. Civ. Prac. & Rem. Code § 33.004(j); Phi Van Cao v. Hardy, 352 S.W.3d 218, 221 (Tex. App.—Houston [14th Dist.] 2011); In Re Unitec Elevator Services Co., 178 S.W.3d 53, 61 (Tex. App.—Houston [1st Dist.] 2005).

Phi Van Cao v. Hardy

Phi Van Cao was injured when his truck was rear-ended by Yvonne Hardy’s car.  Phi Van Cao v. Hardy, 352 S.W.3d 218, 220 (Tex. App.—Houston [14th Dist.] 2011).  Prior to the accident, Cao had begun slowing down as he approached a disabled vehicle, whose hazard lights were not flashing when the accident occurred. Id.  As a result of the accident, Cao sued Hardy seeking compensation for his medical expenses. Id.  Hardy moved to designate the unnamed owner of the disabled vehicle as a responsible third-party based on his negligent failure to use his hazard lights.  Id.  The trial court granted Hardy's motion to designate the unknown owner of the disabled vehicle as a responsible third-party.  Id.  Cao moved to strike the designation, arguing Texas Civil Practice and Remedies Code section 33.004 only allows such a designation if the unnamed party committed a crime.  Id.  Cao appealed the trial court's denial of his motion to strike.  Id.

On appeal, Hardy argued subsection (j) only applies to cases involving criminal acts and the court should apply the general provisions of section 33.004 when designating an unknown driver.  Id. at 221.  However, the court of appeals found section (j) exclusively applicable to unknown third parties.  Id. at 221.  The court emphasized as a prerequisite to designating such an unknown person under section (j), a defendant must “comply with certain pleading requirements,” which includes the allegation that “the unknown person has committed a crime.”  Id.  Since, Hardy failed to allege the unknown driver had committed a crime, the Court of Appeals reversed the trial court’s decision to deny Cao’s Motion to Strike the designation of the unknown driver.  Id.

Designating Unknown Drivers

As emphasized in Phi Van Cao v. Hardy, when designating an unknown driver as a responsible third-party, a defendant must comply with the strict pleading requirements in Texas Civil Practice & Remedies Code § 33.004(j).  To satisfy section 33.004(j) for designating an unknown third-party, a defendant is obligated, within 60 days after the filing of the defendant's original answer, to allege an unknown person committed a criminal act that was a cause of the plaintiff’s damages.  Tex. Civ. Prac. & Rem. Code § 33.004(j) (emphasis added).  Thus, the court will grant the motion for leave to designate the unknown driver as a responsible third party if (1) the defendant has pleaded facts sufficient for the court to determine there is a reasonable probability the act of the unknown person was criminal; (2) the defendant stated in the answer all identifying characteristics of the unknown person, known at the time of the answer; and (3) the allegation satisfies the pleading requirements of the Texas Rules of Civil Procedure.  Id. (emphasis added).

At least one federal district court in Texas has followed the holding in Phi Van Cao v. Hardy when determining whether a defendant can designate an unknown driver as a responsible third-party.  In Beltran v. United States, prior to the automobile accident, the defendant observed an inner-tube fly out of a pickup truck and the occupants of the unknown pickup truck exit the vehicle to chase the innertube.  Beltran v. United States, SA–15–CA–503–HJB, 2016 WL 9450738 at *1 (W.D. Texas, Feb. 19, 2016).  The defendant sought leave to designate the driver of the truck and/or the individuals that exited the truck as an unknown responsible third-party.  Id.  The court held the defendant had not complied with requirements of section 33.004(j) as the defendant had not alleged the unknown person committed a criminal act.  Id. at *2.  Since, section 33.004(j) does not generally allow the designation of unknown responsible third-parties unless a criminal act is alleged, and only then in limited circumstances, the defendant was obligated, within “60 days after the filing of the defendant's original answer,” to allege that an unknown person committed a criminal act that was a cause of the plaintiff’s damages.  Id.

Accordingly, when designating an unknown driver as a responsible third-party, a defendant must comply with the strict pleading requirements set out Texas Civil Practice & Remedies Code § 33.004(j).

Conclusion

A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party.  If the person’s identity is unknown, the defendant must comply with the strict pleading requirements set out Texas Civil Practice & Remedies Code § 33.004(j).  To meet the pleading requirements of section 33.004(j), a defendant is obligated, within 60 days after the filing of the defendant's original answer to allege an unknown person committed a criminal act that was a cause of the plaintiff’s damages.  Accordingly, attorneys must be thorough when designating an unknown driver as Section 33.004(j), in order to ensure they have met each of the requirements for this type of designation.

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