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Affirmed and Majority and Dissenting Opinions filed May 4, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00658-CV

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BARBARA ROBINSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JOHN ROBINSON, DECEASED, Appellant

CROWN CORK & SEAL COMPANY, INC., Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2002-50324A

M A J O R I T Y O P I N I O N

At its essence, this appeal requires us to consider the breadth of the Legislature=s power to curtail individual rights. John and Barbara Robinson sued Crown Cork and others after discovering Mr. Robinson had developed mesothelioma from years of working with products containing asbestos. In the trial court, Crown Cork admitted liability; however, before the court entered judgment, the Legislature enactedCand made immediately effectiveCa law that would preclude any recovery by the Robinsons from Crown Cork.

The Legislature, concerned about the financial toll of asbestos suits, limited the liability of corporations that (1) had purchased companies manufacturing asbestos, but (2) did not continue in the asbestos business. By making the legislation effective immediately, the Legislature affected the Robinsons= suit. Crown Cork moved for summary judgment, arguing that the legislation exempted it from paying any damages to the Robinsons because the damages it had already paid to other plaintiffs exceeded the monetary cap contained in the legislation. The trial court agreed and granted summary judgment in favor of Crown Cork.

Mrs. Robinson^{^[1]} attacks the summary judgment on three grounds, two of which are constitutional in nature. First, Mrs. Robinson claims that the legislation is unconstitutionally retroactive as applied to her because it extinguished a vested right. Next, she claims that the law is unconstitutional because it is a special law, designed specifically to aid Crown Cork. Finally, she claims that Crown Cork failed to establish as a matter of law each element of its affirmative defense.

As to Mrs. Robinson=s first issue, we agree that the legislation acted retroactively upon her claims. But we do not conclude that the legislation is unconstitutionally retroactive as applied to Mrs. Robinson because it was a Avalid exercise of the police power by the Legislature to safeguard the public safety and welfare . . . .@ Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 633B34 (Tex. 1996).

Regarding Mrs. Robinson=s second constitutional claimCthat the statute is unconstitutional because it is a special lawCwe conclude the statute is not a special law. Clearly it was drafted to include Crown Cork within its scope, but it was not written to exclude companies similarly situated to Crown Cork. And, because it operates on a subject in which the public at large is interested, it affects all of the citizens of the State.

Finally, we hold that Crown Cork proved the elements of its affirmative defense as a matter of law. Consequently, we affirm the trial court=s judgment. We explain below.

Factual Background

John Robinson joined the United States Navy in 1956, and served for approximately twenty years as a boiler tender on several Navy vessels. Mr. Robinson maintained boilers, pipes, steam lines, and other machinery and equipment insulated with asbestos products, including insulation products of Mundet Cork Corporation.

Crown Cork is a manufacturer and distributor of packaging products for consumer goods. In 1963, Crown Cork, then a New York corporation, was the nation=s largest producer and seller of metal bottle caps, known in the industry as Acrowns.@ Mundet also produced and sold crowns. Seeking to acquire the assets of Mundet=s competing bottle cap division, in November of 1963, Crown Cork purchased the majority of Mundet stock. Approximately three months later, Mundet sold its insulation division.^{^[2]} Crown Cork continued to purchase Mundet stock until February of 1966, when the remaining assets of Mundet were transferred to Crown Cork by merger. In 1989, Crown Cork merged into a new Pennsylvania corporation of the same name.

Years later, John Robinson was diagnosed with mesothelioma. He and his wife, Barbara, sued Crown Cork, Mundet=s successor, and others for damages caused by Mr. Robinson=s exposure to asbestos. The Robinsons moved for partial summary judgment to establish Crown Cork=s liability for the damages allegedly caused by Mundet=s products. Crown Cork did not contest its liability for compensatory damages. The trial court granted the Robinsons= motion as to compensatory damages, but not as to punitive damages.

While the Robinsons= suit was pending, the Texas Legislature passed House Bill 4; House Bill 4 included a new affirmative defense limiting the liability of successor corporations for asbestos-related claims. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 847. Section 17 of House Bill 4 directly impacted the Robinsons= suit. That section provides that certain successor corporations of asbestos manufacturers may limit their total asbestos liability to the total gross asset value of the predecessor company at the time of the merger or consolidation. Id. ' 17.01. The only section of House Bill 4 made immediately effective upon its passage by two-thirds of each house of the Legislature was Section 17; it became effective on June 11, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 23.02(b), 2003 Tex. Gen. Laws 898, 899. In addition, the only section made retroactive to all cases pending on its effective date was, again, Section 17. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 17.02(2), 2003 Tex. Gen. Laws 895. Section 17 is codified at Chapter 149 of the Texas Civil Practice & Remedies Code, entitled ALimitations in Civil Actions of Liabilities Relating to Certain Mergers or Consolidations.@ See Tex. Civ. Prac. & Rem. Code Ann. '' 149.001B.006. Throughout the remainder of the opinion we will refer to Section 17 as Athe Statute.@

The stated purpose of the Statute is to limit cumulative Asuccessor asbestos-related liabilities@^{^[3]} in Texas. A successor corporation is liable for asbestos claims^{^[4]} only up to the total gross assets of the transferor corporation from whom it received the asbestos-related liabilities; total gross assets are determined as of the time of the merger or consolidation. See id. ' 149.003(a); see also id. '' 149.001(4) (defining Asuccessor@ as Aa corporation that assumes or incurs, or has assumed or incurred, successor asbestos-related liabilities@); 149.001(5) (defining Atransferor@ as Aa corporation from which successor asbestos-related liabilities are or were assumed or incurred@).^{^[5]} A successor corporation is not responsible for successor asbestos-related liabilities that exceed this limitation. Id. ' 149.003(a). Additionally, the Statute provides that, if a transferor corporation had assumed or incurred successor asbestos-related liabilities from a prior merger or consolidation with a transferor, then the fair market value of the total assets of the first transferor shall be used to determine the successor corporation=s liability. Id. ' 149.003(b). To the fullest extent permissible, Texas law applies to successor asbestos-related liabilities. See id. ' 149.006 (AThe courts in this state shall apply, to the fullest extent permissible under the United States Constitution, this state=s substantive law, including the limitation under this chapter, to the issue of successor asbestos‑related liabilities.@).

As noted previously, after the Statute became effective, Crown Cork moved for summary judgment. Crown Cork argued that it had already paid successor asbestos claims in excess of Mundet=s total gross assets, and therefore, it had no further liability in any asbestos case.^{^[6]} The trial court granted the motion and severed the Robinsons= claims against Crown Cork from those against the other defendants. This appeal followed.

Robinson=s Issues

On appeal, Mrs. Robinson raises three issues, contending the trial court erred in granting Crown Cork=s motion for summary judgment because (1) the Statute violates the Texas Constitution=s prohibition on retroactive laws, (2) the Statute violates the Texas Constitution=s prohibition on special laws, and (3) Crown Cork failed to establish as a matter of law each element of the Statute.

I. The Statute Does Not Violate the Texas Constitution=s Prohibition on Retroactive Laws.

In her first issue, Mrs. Robinson contends the Statute violates Article I, section 16 of the Texas Constitution. That section provides as follows: ANo bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.@ Tex. Const. art I, ' 16. Mrs. Robinson does not contend section 16 bans all retroactive laws. Instead, she argues vested rights cannot be extinguished retroactively; she maintains that an accrued cause of action is a vested right and thus not retroactively extinguishable. She asserts that her accrued tort claims were vested before the Statute became effective and therefore could not be extinguished by subsequently enacted legislation. Yet, she argues, the Statute completely eliminated the accrued tort claims against Crown Cork in contravention of section 16.^{^[7]}

Courts have struggled for years to settle upon a reliable method for judging the constitutionality of a retroactive statute. Many Texas courts and courts of other states have used the designation Avested right@ to describe a right that cannot be abrogated by a retroactive law. See, e.g., Middleton v. Tex. Power & Light, 108 Tex. 96, 185 S.W. 556, 560 (1916); Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 253 (1887); Phillips v. Curiale, 608 A.2d 895, 901B02 (N.J. 1992); Peterson v. City of Minneapolis, 173 N.W.2d 353, 356B358 (Minn. 1969); see also Charles B. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 696 (1960); Ray H. Greenblatt, Judicial Limitations on Retroactive Civil Legislation, 51 Nw. U. L. Rev. 540, 561B62 (1956). But a problem arises when one tries to define a vested right. Some Texas cases arguably have used language implying that an accrued cause of action is a vested right. See Mellinger, 3 S.W. at 253 (AWhen . . . a state of facts exists as the law declares shall entitle a plaintiff relief in a court of justice on a claim which he makes against another . . ., then it must be said that a right exists, has become fixed or vested, and is beyond the reach of retroactive legislation . . . .@); but see Ex Parte Abell, 613 S.W.2d 255, 261 (Tex. 1981) (A[A] right cannot be considered a vested right unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable to the present or future enjoyment of a demand or a legal exemption from the demand made by another.@). Other cases have held that a right is not vested until a final judgment is entered. See Walls v. First State Bank of Miami, 900 S.W.2d 117, 122 (Tex. App.CAmarillo 1995, writ denied) (stating that Aonly final, nonreviewable judgments will be accorded the dignity of vested, constitutionally guarded rights . . . .@); Houston Indep. Sch. Dist. v. Houston Chronicle Pub. Co., 798 S.W.2d 580, 589 (Tex. App.CHouston [1st Dist.] 1990, writ denied) (stating that Athe triggering event for the vesting of a right is the resolution of the controversy and the final determination . . . .@).

Thus, our predicament in answering the precise question Mrs. Robinson has raisedCwhether her allegedly vested right was retroactively altered in an unconstitutional wayCis this: no clear answer exists. For example, Mrs. Robinson declares that her tort claims were vested rights because the set of facts underlying her cause of action had already occurred. This long has been a way of describing vested rights. See Mellinger, 3 S.W. at 253B54. But even this designation is subject to variances in application, as the following quote, written more than seventy-five years ago, illustrates:

One=s first impulse on undertaking to discuss retroactive laws and vested rights is to define a vested right. But when it appears, as soon happens, that this is impossible, one decides to fix the attention upon retroactive laws and leave the matter of definition to follow rather than precede the discussion, assuming for the purpose that a right is vested when it is immune to destruction, and that it is not vested when it is liable to destruction, by retroactive legislation. The simplification of the task which this plan seems to involve, turns out to be something of an illusion, however, when it appears, as also soon happens, that one=s preconceived notions of retroactive laws are irreconcilable with the data with which one has to deal.

Bryant Smith, Retroactive Laws and Vested Rights, 5 Tex. L. Rev. 231, 231 (1927) (footnote omitted). Apparently, the job of ascertaining when a right is vested, and when it is not, has vexed courts and commentators for years.

B. Some Courts Have Looked to Alternative Methods to Assess When a Statute is Unconstitutionally Retroactive.

Courts in other states also have recognized the dilemma they confront when an allegedly vested right is pitted against a retroactive law:

A[D]iscerning commentators and judges@ have questioned the value of vested-rights analysis and have suggested that Athe true test of the constitutionality of a retrospective law is whether a party has changed his [or her] position in reliance upon the existing law, or whether the retrospective act gives effect to or defeats the reasonable expectations of the parties.@ Charles B. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 696 (1960) (Hochman) (footnotes omitted). Although agreeing that the parties= reasonable expectations may be relevant, Hochman has argued that the constitutionality of a retroactive statute is in fact determined by courts through a weighing of the following factors: (1) the nature and strength of the public interest served by the statute, (2) the extent to which the statute modifies or abrogates the asserted right, and (3) the nature of the right that the statute alters. Id. at 697. In Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974), we applied a similar test to determine whether a retroactively‑applied statute constituted a deprivation of due process. We said in Rothman that that analysis essentially involves asking whether, after examining the importance of the public interest served by the statute and comparing it with and balancing it against the quality and value of the right affected by the retroactive legislation, [one could conclude] that the statute in question represented a valid exercise of police power, despite the * * * clear incursion upon individual private rights. [Id. at 226, 320 A.2d 496.] See also Berkley Condominium Ass=n v. Berkley Condominium Residences, Inc., 185 N.J. Super. 313, 320, 448 A.2d 510 (Ch. Div.1982) (when determining what rights may become vested, Aone must examine what it is that is being taken away and weigh that loss against the social gain being achieved@).

Phillips, 608 A.2d at 902; see also Nobrega v. Edison Glen Assoc., 772 A.2d 368, 379B83 (N.J. 2001) (noting that New Jersey courts have had difficulty clearly defining Avested right@ and choosing to use a Arational basis@ inquiry rather than a Avested rights@ inquiry).

Facing claims that a statute unconstitutionally abrogated allegedly vested rights, a number of older Texas court of appeals opinions have resolved the issue by considering the Legislature=s police power. See, e.g., Texas State Teachers Ass=n v. State, 711 S.W.2d 421, 424 (Tex. App.CAustin 1986, writ ref=d n.r.e.); Ismail v. Ismail, 702 S.W.2d 216, 222 (Tex. App.CHouston [1st Dist.] 1985, writ ref=d n.r.e.); State Bd. of Registration for Prof=l Eng=rs v. Wichita Eng=g Co., 504 S.W.2d 606, 608 (Tex. Civ. App.CFort Worth 1973, writ ref=d n.r.e.); City of Breckenridge v. Cozart, 478 S.W.2d 162, 165 (Tex. Civ. App.CEastland 1972, writ ref=d n.r.e.); City of Coleman v. Rhone, 222 S.W.2d 646, 648 (Tex. Civ. App.CEastland 1949, writ ref=d.). The Texas Supreme Court also has done this, most recently relying on the police power to validate a retroactive statute in Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 633B34 (Tex. 1996). Barshop gives scant guidance on how to measure the legitimacy of an act of police power against a private right. Fortunately, a number of the courts of appeals considering the issue have written rather extensively on the balancing of rights they have performed when comparing a statute with the private right that is being altered. After looking generally at the scope of the police power, we will then follow the lead of these courts by considering the reasons the legislature enacted the Statute, including precautions taken to narrow the scope of the Statute=s reach. Then, we will measure those legislative justifications against the private rights the Statute impacts.

1. The Legislature=s Police Power.

Although Mrs. Robinson strenuously argues that we cannot rely on the police power to validate the Statute, we disagree. In fact, we are of the opinion that the enactment of the Statute was a reasonable exercise of the Legislature=s police power.

Many courts have spoken to the breadth of the police power. Though not unfettered, it is Abroad and comprehensive.@ Rhone, 222 S.W.2d at 648. AIt is founded upon public necessity which alone can justify its exercise@ and Ahinges upon the public need for safety, health, security, and protection of the general welfare of the community.@ Id.