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Marathon Corp. v. Pitzner8/2/2001
ry measures, if controverted, or impeachment. Tex. R. Evid. 407(a).
However, we conclude that the evidence in question is not about subsequent remedial measures. Leos testified that in 1995 the interior of the building was enlarged. Bowman testified that in 1995, they added more air conditioning "tonnage" as Hull recommended. Davidson opined that the new units installed by Hull on the dealership roof in 1995 were still in violation of multiple provisions of the building code, in part because they had no disconnect switch and because no city permit was ever issued for their installation. Because the same code violations existed after the changes in the air conditioning system, the changes cannot be considered "remedial." Furthermore, the evidence impeached Hull's testimony that he always put disconnect switches in any new units he installed, and that he could not, therefore, have installed the units Pitzner was working on. We hold the trial court did not abuse its discretion in admitting this evidence. Appellant's eighth issue is overruled.
F. Settlement Credit
In its tenth issue, Marathon contends the trial court abused its discretion by refusing to allow an offset for settlement credits. Appellee concedes that Marathon should have received some settlement credit, but disputes which method of calculating the credit was elected by Marathon.
The relevant statutes provide:
§ 33.012 Amount of Recovery
(b) If the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a credit equal to one or the following, as elected in accordance with Section 33.014:
(1) the sum of the dollar amounts of all settlements; or
(2) a dollar amount equal to the sum of the following percentages of damages found by the trier of fact:
(A) 5 percent of those damages up to $200,000;
(B) 10 percent of those damages from $200,001 to $400,000;
(C) 15 percent of those damages from $400,001 to $500,000;
and
(D) 20 percent of those damages greater than $500,000.
§ 33.014 Election of Credit for Settlements
If a claimant has settled with one or more persons, an election must be made as to which dollar credit is to be applied under Section 33.012(b). This election shall be made by any defendant filing a written election before the issues of the action are submitted to the trier of fact and, when made, shall be binding on all defendants. If no defendant makes this election or if conflicting elections are made, all defendants are considered to have elected Subdivision (2) of Section 33.012(b). Tex. Civ. Prac. & Rem. Code Ann. §§ 33.012, 33.014 (Vernon 1997).
When there is a settlement covering some or all of the damages awarded in the judgment, section 33.012 requires the trial court to reduce the amount accordingly. Mobil Oil Corp. v. Ellender, 969 S.W.2d 917, 926 (Tex. 1998). The only question is by what amount the trial court should reduce the judgment. Id.
On September 16, 1997, Marathon filed a written election of credit for settlements choosing section 33.012(b)(1), the dollar-for-dollar credit. Marathon claims, however, that it verbally changed its election to the section 33.012(b)(2) method. However, the only statement in the record that might reasonably be construed as referring to the settlement credit election is the following statement made by Marathon's trial counsel to the trial court at the charge conference held on December 9, 1997:
Counsel: Now, I am still reserving my right
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