Our prior opinions are withdrawn and the following is substituted.

In this wrongful death case we consider how liability is to be allocated among defendants under our Comparative Responsibility Law, TEX.CIV.PRAC. REM.CODE ch. 33. We also conclude that the evidence in this case is insufficient to support an award of damages for lost inheritance, and that prejudgment interest may be awarded on future damages under TEX.REV.CIV.STAT.ANN. art. 5069-1.05, § 6(a) (Vernon 1986 Supp. 1994). The judgment of the court of appeals is reversed, 810 S.W.2d 259, and the case is remanded to the trial court for further proceedings.

I

Jerry Wayne Thompson was driving down the highway when a 40' piece of pipe weighing 1100 pounds fell off a truck coming toward him and hit his car. Thompson was killed. His wife and children brought this action to recover damages for Thompson's injuries and death. They sued four groups of defendants:

• the lessor and driver of the truck, C H Nationwide, Inc. and Edward Stanton

Webber, respectively — collectively, "C H";

• the owners of the pipe, Shell Oil Company and Shell Western E P, Inc. — collectively, "Shell";

• the company from which the pipe was shipped, Energy Coatings Company; and

• the company Shell hired to monitor the handling and loading of the pipe at the Energy Coatings facility, Ecotech International, Inc.

Before trial, Shell paid plaintiffs $3 million in full and final settlement of plaintiffs' claims against it. C H also paid plaintiffs $3 million (in four installments) prior to trial, but not in full settlement of plaintiffs' claims. C H's payments were made in accordance with a letter agreement between counsel for plaintiffs and C H which stated that:

• the money paid by C H "will be treated as an advance toward any judgment which might be entered" against C H or its insurers;

• plaintiffs' pleadings would be amended to claim no more than $8.5 million actual damages because "in fairness" no greater amount should be sought, given the degree of responsibility C H bore for the accident, as indicated by discovery;

• plaintiffs' pleadings would also be amended to drop any claims of gross negligence or punitive damages against C H because C H was out of business and "the development of the case" had indicated that C H "in all likelihood [was] not guilty of any conduct giving rise to a claim for punitive damages;

• plaintiffs would indemnify C H from liability in excess of $8.5 million on account of any claim by another defendant; and

• plaintiffs would not settle with any other defendants without C H's approval.

The agreement between counsel for C H and the plaintiffs concluded: "This arrangement is not a settlement nor is it intended to be one. It is simply an effort to streamline the issues, to reduce the number of disputed issues prior to trial. . . ."

The jury found each group of defendants negligent, allocating responsibility for causing the accident 50% to C H, 30% to Ecotech, 15% to Shell, and 5% to Energy Coatings. The jury assessed the following damages:

pecuniary loss $1,600,000 loss of companionship and society 2,400,000 mental anguish 3,000,000 loss of inheritance 200,000 Thompson's pain and suffering before 1,000,000 death

__________

In addition, the parties stipulated to funeral expenses of $5,720.35. Plaintiffs' damages thus totaled $8,205,720.35. The jury was not asked to, and therefore did not, segregate damages incurred in the past from those to be incurred in the future.

The court calculated prejudgment interest based upon a "principal" equal to the total damages found or stipulated — $8,205,720.35 — reduced by settlement payments or offers from time to time during the period of accrual. Thompson was killed on November 18, 1987, and this action was filed ten days later. The trial court determined that prejudgment interest accrued from May 18, 1988, 180 days after suit was filed, until January 23, 1990, the date of judgment. C H made its first payment of $100,000 to plaintiffs on May 6, 1988, and the trial court credited it against the "principal" as of May 18. C H made its other three payments, one of $900,000 and two each of $1 million, on January 25, February 13, and February 17, 1989, respectively. The trial court found that Energy Coatings made written settlement offers to plaintiffs in the amount of $250,000 on April 3, 1989, and $750,000 on July 21, 1989. Although the court found that these offers terminated when jury selection began on September 26, 1989, the court did not accrue interest on these amounts after that date. The trial court found that Ecotech made a written settlement offer to plaintiffs in the amount of $100,000 on July 10, 1989, and that this offer remained extant to the date of judgment. Shell paid plaintiffs $3 million on July 20, 1989. Based upon these findings, the trial court calculated prejudgment interest at the rate of 10% per annum as follows:

PAID OR DATE DAYS INTEREST OFFERED "PRINCIPAL" ____ ____ ________ _______ ___________ 11/18/87 $8,205,720.35 11/20/87 05/06/88 $ 100,000.00 05/18/88 $8,105,720.35 01/25/89 252 $559,627.82 $ 900,000.00 $7,205,720.35 02/13/89 19 $ 37,509.23 $1,000,000.00 $6,205,720.35 02/17/89 4 $ 6,800.79 $1,000,000.00 $5,205,720.35 04/03/89 45 $ 64,180.11 $ 250,000.00 $4,955,720.35 07/10/89 98 $133,057.70 $ 100,000.00 $4,855,720.35 07/20/89 10 $ 13,303.34 $3,000,000.00 $1,855,720.35 07/21/89 1 $ 508.42 $ 500,000.00 $1,355,720.35 01/23/90 186 $ 69,086.02 __________

The total interest thus calculated amounted to $884,073.43.

All three defendants that remained liable to plaintiffs — C H, Ecotech, and Energy Coatings — elected under TEX.CIV.PRAC. REM.CODE § 33.014(a) to have the damages recovered by plaintiffs reduced by "the sum of the dollar amounts of all settlements", id. § 33.012(b)(1). Accordingly, the trial court reduced plaintiffs' damages by the $6 million they received from Shell and C H. Defendants disagreed, however, over how this reduction should affect their respective liabilities. We describe this disagreement in more detail below. In brief, Ecotech and Energy Coatings argued that the entire $6 million should be credited to plaintiffs' damages before liability was apportioned among the defendants. The credit would thus be shared by all three defendants, basically in proportion to the percentage of fault assigned each of them by the jury. C H argued that Ecotech and Energy Coatings should not benefit from its payments to plaintiffs. Instead, C H contended that plaintiffs' damages should be reduced only by the $3 million paid by Shell, and that liability apportioned among defendants. C H argued that the $3 million it paid should be credited solely against its own liability. The trial court accepted Ecotech and Energy Coatings' argument and rejected C H's.

Based on the jury's allocation of responsibility, the trial court held that C H and Ecotech are jointly and severally liable to the plaintiffs for all damages awarded by the judgment, and that Energy Coatings is liable for 5/85ths of the judgment. C H was given a right of contribution against Ecotech for 30/85ths of the judgment, and C H and Ecotech were each given a right of contribution against Energy Coatings for 5/85ths of the judgment. The trial court denied Ecotech and Energy Coatings contribution against C H.

The court of appeals reversed only one part of the trial court's judgment. 810 S.W.2d 259. The appeals court held that prejudgment interest should have been assessed on the difference between the total damages awarded and the settlement credit, or $2,205,720.35, rather than on the total damages awarded by the jury, or $8,205,720.35. The court remanded the case to the trial court to recalculate prejudgment interest. In all other respects the trial court's judgment was affirmed.

II

We first consider the proper allocation of liability among defendants under the Comparative Responsibility Law, TEX.CIV.PRAC. REM.CODE §§ 33.001-.016.

A

C H argues that the lower courts did not properly credit its pretrial payments to plaintiffs against its own liability. The trial court made the following calculation:

Total damages $8,205,720.35 Less payments from Shell -$3,000,000.00 Less payments from C H -$3,000,000.00 ______________

Judgment damages for plaintiffs $2,205,720.35 C H's percent of fault (50%) relative to the total for all defendants but Shell (85%) x 50/85 _____________ Amount C H must pay before entitled to contribution $1,297,482.56

The court of appeals affirmed this calculation, holding that C H's payments, like Shell's, were "settlements" to be credited against plaintiffs' total damages under section 33.012(b)(1). C H contends that its payments to plaintiffs were not "settlements", since they did not absolve C H of liability, but rather were "advances", in accordance with the agreement between C H and plaintiffs. Thus, C H argues, its payments should not have been credited to total damages, but to its own liability, in accordance with the following calculation:

Total damages $8,205,720.35 Less payments from Shell $3,000,000.00 _____________ Balance after settlements $5,205,720.35 C H's percent of fault (50%) relative to the total for all defendants but Shell (85%) x 50/85 _____________ $3,062,188.44

Less payments from C H $3,000,000.00 _____________ Amount C H must pay before entitled to contribution $62,188.44

Because the trial court's formula misapplied its payments, C H argues, it is being denied contribution from other defendants for $1,235,294.12, the difference between $1,297,482.56 and $62,188.44. In effect, C H complains, the trial court's formula allows Energy Coatings and Ecotech to share in the benefits of C H's payments to plaintiffs by reducing their liability for contribution to C H.

As previously noted, section 33.014(a) allows defendants to elect how payments received by a plaintiff who has "settled" with a person will be credited against plaintiff's recovery. One possible election under section 33.012(b) — and the one chosen by defendants in this case — is to reduce the damages recovered by plaintiffs by the amount of all "settlements". Neither "settled" nor "settlements" is specifically defined in the statute. However, section 33.011(5) does define "settling person" 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." This definition does not limit settling persons to those who have fully resolved all claims against them; rather, it includes those who settle only a part of their potential liability. This is consistent with the common understanding that a settlement can be full or partial. C H paid money in consideration of potential liability. Under the statute, as well as in common parlance, it was a "settling person".

C H argues that construing the statutory definition of "settling person" to include a person who settles only part of his liability creates anomalies in two other statutory provisions. Section 33.011(3) defines a "liable defendant" as "a defendant against whom a judgment can be entered for at least a portion of the damages awarded to the claimant." C H argues that it makes no sense to treat the same defendant as both a "settling person" and a "liable defendant". We do not see the inconsistency. In fact, a party can easily be both settling (partially) and liable (partially), as C H is in this case.

The other provision in which C H argues an anomaly results is section 33.015(d), which states that "[n]o defendant has a right of contribution against any settling person." C H argues that if "settling person" includes a party who has paid any amount at all to a plaintiff, the result would be that a party could avoid liability for contribution by paying plaintiff a small sum. The flaw in C H's logic is that section 33.015(d) need not, and should not, be construed to insulate a party who has settled part of his exposure to plaintiff from all liability for contribution. The better reading of section 33.015(d) is that a settling person is free from contribution only to the extent of the liability settled. This is consistent with the general rule that a person is not liable to a defendant for contribution if he is not also liable to the plaintiff. By our reading of section 33.015(d), no anomaly is caused by construing the definition of "settling person" to include persons who settle in part.

Finally, C H argues that it is unfair and contrary to public policy to deny it the full benefit of its $3 million payment to plaintiffs in accordance with their settlement agreement. As it characterizes the circumstances, it attempted responsibly and timely to meet its obligations to plaintiffs while Energy Coatings and Ecotech made no such effort, yet its liability for contribution is the same as if it had done nothing. While we do not disagree with C H, the remedy it seeks is beyond our power. The Legislature has set by statute the parameters of the right of contribution, and we cannot review the statute for fairness. Even if the Legislature were obliged to have a good reason for this aspect of the statutory scheme for contribution, we cannot say that it had none. It may have determined, for example, that partially settling defendants should not be favored with respect to their liability for contribution. Even if we disagreed with the Legislature, we could not review its determination.

Accordingly, we hold that "settlement", as used in the Comparative Responsibility Law, means money or anything of value paid or promised to a claimant in consideration of potential liability. Since C H's payments fit this definition, we agree with the court of appeals that the trial court correctly credited the $3 million which C H paid plaintiffs to the entire judgment. C H's agreement with plaintiffs that its payments were advances rather than a settlement cannot affect the statutory contribution rights of Ecotech and Energy Coatings, which were not parties to the agreement. The rights of C H and plaintiffs, as between each other, are defined by their agreement; the other defendants' rights to contribution, however, are defined by statute.

B

Ecotech argues that it is entitled to contribution from C H. The lower courts rejected this argument on the ground that section 33.015(d) precludes contribution against a person who has settled any part of plaintiffs' claims against him. As we noted above, however, section 33.015(d) is not so broad; it insulates a person from contribution only to the extent the liability to the plaintiff has been settled. A defendant who settles only a part of a plaintiff's claim cannot be liable for contribution with respect to that part, but remains subject to contribution with respect to the part of plaintiff's claims that were not settled. C H settled its liability to plaintiffs for damages in excess of $8.5 million, and for punitive damages. Contribution does not apply to punitive damages, section 33.002(a), and plaintiffs did not recover more than $8.5 million. Accordingly, C H's partial settlement does not insulate it from liability to Ecotech for contribution.

The trial court held C H and Ecotech jointly and severally liable for all damages awarded plaintiffs, but incorrectly attributed 50/85 of that responsibility to C H and 30/85 to Ecotech. The trial court appears to have reasoned that since the three defendants other than Shell were 85% responsible for plaintiffs' damages, their liability, as among themselves, should be apportioned 50 parts to C H, 30 to Ecotech, and 5 to Energy Coatings. In apportioning liability between the jointly and severally liable defendants, however, Energy Coatings' percentage of responsibility is not considered. Section 33.015(b) states:

As among themselves, each of the defendants who is jointly and severally liable

under Section 33.013 is liable for the damages recoverable by the claimant under Section 33.012 in proportion to his respective percentage of responsibility. If a defendant who is jointly and severally liable pays a larger proportion of those damages than is required by his percentage of responsibility, that defendant has a right of contribution for the overpayment against each other defendant with whom he is jointly and severally liable under Section 33.013 to the extent that the other defendant has not paid the proportion of those damages required by that other defendant's percentage of responsibility.

By this provision, C H is entitled to contribution from Ecotech to the extent that C H pays more than 50/80ths of the total amount recoverable from both of them, and Ecotech is entitled to contribution from C H to the extent that Ecotech pays more than 30/80ths of the total amount recoverable from both of them.

C

C H and Ecotech argue that the lower courts incorrectly held Energy Coatings liable to plaintiffs for only 5/85 of the judgment of $2,205,720.35, or $129,748.26. C H and Ecotech argue that Energy Coatings should be liable for 5% of plaintiffs' total damages of $8,205,720.35, or $410,286.02. C H and Ecotech base their argument on section 33.013(a), which states:

Except as provided in Subsections (b) and (c), a liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant's percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed.

Subsections (b) and (c) prescribe joint and several liability and are inapplicable to Energy Coatings since the jury found Energy Coatings to be only 5% at fault for plaintiffs' injuries. Under subsection (a), C H and Ecotech argue, a defendant's liability is calculated by multiplying "the damages found by the trier of fact", rather than the damages actually recovered, by the defendant's percentage of responsibility.

We agree. Section 33.013(a) sets the liability to the claimant of each defendant at an amount equal to that defendant's percentage of responsibility multiplied by the damages found by the trier of fact. That calculation in this case would be as follows:

C H: 50% x $8,205,720.35 = $4,102,860.17 Ecotech: 30% x $8,205,720.35 = $2,461,716.11 Energy Coatings: 5% x $8,205,720.35 = $410,286.02 ___ _____________

Total: 85% x $8,205,720.35 = $6,974,862.30

Subsections (b) and (c) provide: "Notwithstanding Subsection (a), each liable defendant is, in addition to his liability under Subsection (a), jointly and severally liable for the damages recoverable by the claimant under Section 33.012 with respect to a cause of action" in certain specified circumstances. As C H and Ecotech both fall within these circumstances, they are "in addition" jointly and severally liable to plaintiffs for the damages recoverable under § 33.012, or $2,205,720.35, the $8,205,720.35 damages found by the jury less the $6 million paid in settlement. Plaintiffs can recover all their damages from C H and Ecotech, or either of them, and can recover up to $410,286.02 from Energy Coatings. The maximum plaintiffs can recover from all defendants is the amount set by § 33.012.

The trial court's holding that Energy Coatings was liable to the plaintiffs for 5/85 of the damages awarded in the judgment, rather than 5% of the damages found by the jury, is contrary to the plain language of § 33.013(a). However, the error affects only Energy Coatings' liability to the plaintiffs, and plaintiffs have not complained. Consequently, we do not disturb the judgments of the lower courts which limit Energy Coatings' liability to plaintiffs to 5/85 of the judgment.

D

C H and Ecotech argue that they are entitled to contribution from Energy Coatings for 5% of the total damages plaintiffs were found to have incurred, rather than 5/85 of the damages awarded in the judgment, as ordered by the trial court. This argument is based upon section 33.015(a), which states:

If a defendant who is jointly and severally liable under Section 33.013 pays a percentage of the damages for which the defendant

is jointly and severally liable greater than his percentage of responsibility, that defendant has a right of contribution for the overpayment against each other liable defendant to the extent that the other liable defendant has not paid the percentage of the damages found by the trier of fact equal to that other defendant's percentage of responsibility.

According to C H and Ecotech, if C H pays plaintiffs more than 50% of the $2,205,720.35 damages for which it is jointly liable ($1,102,860.18), or Ecotech pays plaintiffs more than 30% of those damages ($661,716.11), they are entitled to contribution for the overpayment against Energy Coatings to the extent the latter has paid less than 5% of the $8,205,720.35 damages found by the trier of fact ($410,286.02). In other words, C H and Ecotech argue that they should not be required to pay more than their percentage of the judgment until Energy Coatings has paid its percentage of the verdict. Energy Coatings would thus be liable for about 19% of the judgment ($410,286.02/$2,205,720.35), nearly four times its percentage of responsibility. If C H paid the entire remaining 81% of the judgment and Ecotech paid nothing, C H would pay only about four times as much as Energy Coatings, even though its percentage of responsibility was ten times as great.

C H and Ecotech's argument ignores § 33.013(a), which, as explained above, sets the individual or several liability of each liable defendant as its percentage of responsibility multiplied by the damages found by the trier of fact, irrespective of whether that defendant is subject "in addition" to joint liability under § 33.013(b) and (c). The amount for which a defendant is jointly liable, which is the maximum a claimant can recover under § 33.012(a), may be less than the several liability calculated under § 33.013(a) if, as in this case, settlements have been credited against the damages found by the trier of fact. Section 33.015(a) entitles a jointly and severally liable defendant to contribution only when he has paid a larger share of the damages for which he is jointly — and severally — liable than his percentage of responsibility. We believe that § 33.015(a) refers to § 33.013(a) as well as § 33.013(b) and (c). This literal reading of § 33.015(a) avoids the consequences of C H and Ecotech's argument, which would require a minimally liable defendant to bear part of the burden of a jointly liable defendant in circumstances like those of this case. Even assuming that C H and Ecotech's argument is an equally plausible reading of the statute, the reasonable alternative which avoids unjust consequences is preferable.

We therefore conclude that C H and Ecotech are entitled to contribution from Energy Coatings only to the extent that they overpay their respective liability under § 33.013(a). This, of course, does not affect C H's and Ecotech's rights to contribution as between themselves, which we have discussed above.

III

C H and Ecotech argue that there is no evidence to support the jury's finding that plaintiffs' loss of inheritance was $200,000. They acknowledge that plaintiffs presented evidence of Jerry Thompson's projected earnings and personal expenditures over his expected lifetime, and attempted to calculate from this evidence the present value of his lost earning capacity. However, C H and Ecotech contend that plaintiffs offered no evidence of what Thompson would reasonably have expended in support of his family. Without evidence of what Thompson's total expenditures would have been over his expected lifetime, C H and Ecotech argue that it is impossible to infer how much of his projected earnings would have remained in his estate at his death. Plaintiffs do not contend that there is evidence of what

Thompson would have expended in support of his family; instead, they contend that such evidence is unnecessary. Plaintiffs make two arguments in support of this contention.

First, plaintiffs argue that the jury could determine the value of what Thompson's estate would have been from the evidence that was introduced. As plaintiffs summarize the evidence, it is that Thompson had a close and loving relationship with his family; that he was well educated, a hard worker, a certified public accountant, and vice president of an iron works company; that he made a good salary which had generally increased over time; and that he did not spend money on himself, was very conservative with money, and had accumulated some savings. None of this evidence indicates that Thompson's estate would probably have been $200,000, the amount found by the jury, or $2. One cannot even guess from the fact that Thompson had set aside some savings whether he would have spent them on his children's college education or other family expenses.

Second, plaintiffs argue that damages for loss of inheritance were awarded in Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986), and Lopez v. City Towing Assoc., Inc., 754 S.W.2d 254 (Tex.App. — San Antonio 1988, writ denied), on no more evidence than there is in the present case. In Yowell, we summarized the evidence as follows:

The plaintiffs introduced evidence as to each of the decedents' salaries, expected raises, expected promotions and salary increases, earning capacities, enforced savings through pension plans, spending habits, age, health, and relationship with the wrongful death beneficiaries. The plaintiffs also produced evidence of the age and health of the wrongful death beneficiaries.

703 S.W.2d at 634 (emphasis added). Although this summary is abbreviated, it indicates that there was evidence in Yowell which is not present in this case, viz., the decedent's "spending habits." There is no question that this evidence was present in Lopez. The court of appeals stated: "There was testimony that Mrs. Lopez' earnings were not used to support the family, but were used to provide extra things for the family, primarily for the children." 754 S.W.2d at 265. Thus, neither Yowell nor Lopez supports plaintiffs' argument.

In Yowell the Court stated:

We define loss of inheritance damages in Texas as the present value that the deceased, in reasonable probability, would have added to the estate and left at natural death to the statutory wrongful death beneficiaries but for the wrongful death causing the premature death. True, not every wrongful death beneficiary sustains loss of inheritance damages. If the decedent would have earned no more than he and his family would have used for support, or if the decedent would have outlived the wrongful death beneficiary, loss of inheritance damages would properly be denied. This is for the jury to decide.

703 S.W.2d at 633 (emphasis added). It is precisely the element referred to in Yowell — what the decedent would have spent to support his family — that is missing here. Assigning the jury responsibility for determining what damages should be assessed does not cure this deficit. The jury's award must be based upon evidence.

The argument that loss of inheritance damages are inherently too speculative and should never be awarded, although rejected in Yowell, has not been disproved. The present case illustrates again the vagaries inherent in proving what someone would have inherited — whether he or she would have been among the decedent's beneficiaries, whether ordinary family expenses would have consumed all the decedent's income, whether the ordinary circumstances of life would have exhausted any estate. Questions like these are virtually imponderable in most cases. It is no answer that other types of damages are also indeterminate; the willingness of the law to accommodate some indeterminacy in assessing damages does not mean there are no limits. Hard as it is to prove what a person's net earnings would be over an expected lifetime, it is harder still to prove what would have accumulated by life's end, and who would receive it.

The parties have not argued that we should revisit Yowell, and we do not do so. Yet if loss of inheritance damages are to

be awarded, there must be evidence that plaintiffs would probably have been the beneficiaries of decedent's estate, and evidence from which the amount of that estate can reasonably be calculated. The necessity of some calculation is indicated by the fact that loss of inheritance damages are economic in nature, and by the requirement in Yowell that only the present value of the amount of an estate be awarded. Present value is not simply a judgment call by the jury but a mathematical calculation. Thus, loss of inheritance damages must be determined as other economic damages are, rather than as damages for mental anguish.

There is no evidence in the record before us from which anyone could put a dollar figure on Thompson's likely estate, much less the present value of it. We therefore conclude that there is no evidence to support the jury's finding for loss of inheritance damages.

IV

We next consider whether TEX.REV.CIV.STAT.ANN. art. 5069-1.05, § 6(a), passed in 1987, modified Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985), so as to allow prejudgment interest on future damages. We conclude that it did.

A

In Cavnar, this Court held that in tort actions for unliquidated damages, prejudgment interest was recoverable under "general principles of equity" on "damages that have accrued by the time of judgment." Id. at 552, 554 (emphasis in original). The Court explained: "[A] plaintiff is not entitled to recover prejudgment interest on damages until those damages have actually been sustained," because "[u]ntil that time, the plaintiff has not lost the use of the money he ultimately receives from the defendant." Id. at 554-55. Indeed, discounting future damages to present value as of the date of trial rather than the date of the incident effectively builds prejudgment interest into damage awards. Id. at 555 n. 5.

Like the present case, Cavnar was a wrongful death and survival action in which the plaintiffs did not tender questions segregating past and future losses. The Court concluded there that the plaintiffs could recover prejudgment interest only on the pecuniary and nonpecuniary damages sustained by the decedent prior to her death, but not on damages for their own undifferentiated past and future losses. Id. at 556.

In 1987, however, the Legislature provided for prejudgment interest by statute. TEX.REV.CIV.STAT.ANN. art. 5069-1.05, § 6(a) (Vernon Supp. 1993), applicable to all suits commenced on or after September 2, 1987, states in full:

Judgments in wrongful death, personal injury, and property damage cases must include prejudgment interest. Except as provided by Subsections (b), (c), and (d) of this section, prejudgment interest accrues on the amount of the judgment during the period beginning on the 180th day after the date the defendant receives written notice of a claim or on the day the suit is filed, whichever occurs first, and ending on the day preceding the date judgment is rendered.

(Emphasis added.) The court of appeals held that this provision entitled the Thompsons to prejudgment interest on the entire judgment, since the statute "makes no distinction between damages awarded in the judgment for past damages and damages awarded for future damages." 810 S.W.2d at 276. We agree.

B 1

This holding of the court of appeals, far from being an aberration, is consistent with the holdings of several other appellate courts, see Ellis County State Bank v. Keever, 870 S.W.2d 63 (Tex.App. — Dallas 1992), rev'd in part on other grounds, 888 S.W.2d 790 (Tex. 1994); Wal-Mart Stores, Inc. v. Berry, 833 S.W.2d 587, 596-97 (Tex.App. — Texarkana 1992, writ denied); Hughes v. Thrash, 832 S.W.2d 779, 787 (Tex.App. — Houston [1st Dist.] 1992, no writ); Sisters of Charity of the Incarnate Word v. Dunsmoor, 832 S.W.2d 112, 115-16 (Tex.App. — Austin 1992, writ denied); C.T.W. v. B.C.G., 809 S.W.2d 788, 795 (Tex.App. — Beaumont 1991, no writ), and the writings of respected commentators and analysts. See John Montford Will Barber, 1987 Texas Tort Reform: The Quest for a Fairer and More Predictable Texas Civil Justice System, 25 HOUS.L.REV. 59, 102-03 (1988); 3 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 81.02 comment (1990). We conclude that these authorities are correct.

Although permitting the award of "interest" on future damages does sacrifice a certain purity of meaning, as Justice Hecht makes clear in his dissent, the real question is whether the Legislature also indulged in this imprecise usage. Here Justice Hecht is less convincing. The structure of section 6 as a whole suggests to us that the Legislature did not use "interest" in such a logical, legalistic way. Subsections (b) and (c), for instance, suspend accrual of prejudgment interest during the period in which a settlement offer may be accepted. This is not merely an effort to arrive at an accurate measure of compensation for the plaintiff's loss of use of money, since a plaintiff who declines a settlement offer has been without the use of the money just as surely as one who received no offer. Rather, these subsections have the effect and evident purpose of modifying plaintiffs' and defendants' behavior to encourage settlement.

By providing in subsection (c) that "prejudgment interest does not include" interest on the offer amount during the period the offer is open, the Legislature manipulated the concept of "prejudgment interest" to encompass settlement incentives. Just as interest was not used solely for fair compensation in subsection (c), it was also employed more expansively in subsection (a).

2

In his dissent, Justice Hecht counters that our construction of section 6(a) would compel the award of prejudgment interest on punitive damages, DTPA "statutory damages," and costs and attorney's fees. We disagree in part.

Prejudgment interest on punitive damages is expressly forbidden by statute for personal injury, property damage and wrongful death actions grounded in negligence or strict tort liability. TEX.CIV.PRAC. REM.CODE § 41.006 (Vernon Supp. 1993). Our reading of section 6(a) would not overrule the express language of section 41.006, as both provisions were part of the same tort reform package. See Montford Barber, supra at 114. Under Justice Hecht's interpretation of section 6(a), section 41.006 would be superfluous legislation, as prejudgment interest would already be unavailable on any punitive award.

Moreover, we disagree that our approach would allow prejudgment interest on costs and attorney's fees. These awards cannot fairly be considered a part of the "amount of the judgment." In providing for postjudgment interest in the very article at issue, the Legislature separated "costs" from "judgment." See TEX.REV.CIV.STAT.ANN. art. 5069-1.05, § 2 (Vernon Supp. 1993) ("all judgments, together with taxable court costs" earn postjudgment interest). This division corresponds with common usage in the legal world. See, e.g., Garcia v. Arbor Green Owners Association, Inc., 838 S.W.2d 800, 801 (Tex.App. — Houston [1st Dist.] 1992, writ denied) ("judgment in the amount of $2,199.25, plus attorney's fees of $8,500, plus interest and costs"); Hayden v. American Honda Motor Co., 835 S.W.2d 656, 658 (Tex.App. — Tyler 1992, no writ) ("judgment against Appellants in the amount of $43,151.27, plus interest and costs"); Angelo Broadcasting, Inc. v. Satellite Music Network, Inc., 836 S.W.2d 726, 731 (Tex.App. — Dallas 1992, writ denied) ("judgment for unjust enrichment in the amount of $15,100, plus reasonable and necessary attorneys' fees in the amount of $109,000"); Gullo-Haas Toyota, Inc. v. Davidson, Eagleson and Co., 832 S.W.2d 418, 419 (Tex.App. — Houston [1st Dist.] 1992, no writ) ("the joint bond must secure the full amount of the judgment, plus interest and costs"); International Piping Systems v. M.M. White Associates, Inc., 831 S.W.2d 444, 446 (Tex.App. — Houston [14th Dist.] 1992, writ denied) ("judgment in favor of appellees in the amount of $215,376.73 for breach of contract, plus attorney's fees, prejudgment and postjudgment interest, and costs of court").

C

C H and Ecotech also claim that if section 6(a) does modify Cavnar, it deprives them of their property without due course or due process of law and violates their right to trial by jury. TEX. CONST. art. I, §§ 15, 19, 29; U.S. CONST. amend. V, XIV. We disagree.

1

The substantive components of due course and due process of law demand a balancing of the gain to public welfare from a statute with the effect on personal property or liberty. Unless fundamental rights are implicated, however, the statute need only be rationally related to a legitimate legislative purpose. See Moore v. City of East Cleveland, 431 U.S. 494, 498-99 n. 6, 97 S.Ct. 1932, 1934-36 n. 6, 52 L.Ed.2d 531 (1977); Thompson v. Calvert, 489 S.W.2d 95, 99 (Tex. 1972); Pedraza v. Tibbs, 826 S.W.2d 695, 697-98 (Tex.App. — Houston [14th Dist.] 1992, writ dism'd w.o.j.). We conclude that section 6(a) meets the rational relation test.

Fully compensating the plaintiff is not the only goal of prejudgment interest awards; they also serve the separate purpose of expediting settlements and trials. Cavnar, 696 S.W.2d at 554. A legislative decision that interest on the full judgment promotes the latter objective is not so unreasonable or oppressive as to be unconstitutional, particularly when considered in conjunction with the Legislature's other 1987 modifications of the law regarding prejudgment interest. Although in Cavnar we decided that as a matter of administrative convenience interest should begin to accrue on both pecuniary and nonpecuniary damages six months after the date of the incident, 696 S.W.2d at 555, the Legislature now provides that interest begins to accrue on the earlier of (a) the 180th day after the defendant receives written notice of the claim, or (b) the day the suit is filed. TEX.REV.CIV.STAT.ANN. art. 5069-1.05, § 6(a) (Vernon Supp. 1993). In many cases, the accrual date will be postponed beyond that which would have been set by Cavnar. Moreover, as discussed above, the Legislature reduced the amount of recoverable prejudgment interest under Cavnar by providing that prejudgment interest does not include interest for periods during which a settlement offer from the defendant was open for acceptance, except interest on any portion of the judgment that exceeds the amount of the offer. Id. § 6(b), (c). Finally, the 1987 amendments gave trial courts discretion to toll the accrual of prejudgment interest in response to a plaintiff's delay. Id. § 6(d).

Thus, in various respects the Legislature reduced the "full compensation" prejudgment interest recoverable under Cavnar, while correspondingly increasing it by the inclusion of future damages. Although in isolation the Court's reading of section 6(a) may appear to overcompensate a plaintiff, it also contributes to the system of rewards and penalties introduced by the 1987 enactment. As Montford and Barber explain:

From a tort reform policy perspective section 6(a) is a trade-off provision. Shortening of the accrual period promotes the policies of the tort reform laws, while applicability to future damages does not. Whether, in comparison to Cavnar, more or less prejudgment interest is recoverable under section 6(a) and the other provisions of section 6 hereinafter discussed will depend on the facts and circumstances of each case.

25 HOUS.L.REV. at 104. In operation, it would penalize only a defendant who is adjudged to be a tortfeasor and who did not make an adequate and timely offer of settlement to the plaintiff.

Such a scheme to encourage settlement does not exceed the Legislature's authority. In Pennington v. Singleton, 606 S.W.2d 682 (Tex. 1980), we upheld against a due process challenge the mandatory treble damage provision of the Deceptive Trade Practices Act as a reasonable penalty, noting that fines exceed the "wide latitude of discretion" given states under the Due Process Clause only when they are "`so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.'" Id. at 690 (quoting St. Louis, Iron Mountain Southern Ry. Co. v. Williams, 251 U.S. 63, 67, 40 S.Ct. 71, 73, 64 L.Ed. 139 (1919)). The adjustment of prejudgment interest enacted under section 6(a) is merely a less onerous fine.

2

The right of trial by jury secured by TEX. CONST. art. I, s 15 has never been construed by this Court to prohibit all legislative activity affecting jury awards. Such a rule would foreclose other modifications that this Court has upheld against constitutional challenge, such as treble damages under the Texas Deceptive Trade Practices and Consumer Protection Act and caps on medical malpractice damages in statutory wrongful death actions. See Pennington, supra; Rose v. Doctors Hospital, 801 S.W.2d 841 (Tex. 1990); Union Central Life Ins. Co. v. Chowning, 86 Tex. 654, 26 S.W. 982, 984 (1894). We do not read the jury trial provision to prohibit this modification.

For these reasons, we affirm that portion of the judgment of the court of appeals upholding the trial court's award of prejudgment interest on future damages.

V

Finally, we examine the parties' remaining arguments concerning how the calculation of prejudgment interest should be made.

The court of appeals construed the statutory requirement that prejudgment interest accrue "on the judgment" to mean also that the applicable "principal" is the amount awarded by the judgment, not the damages found by the jury. 810 S.W.2d at 275. We agree that the trial court erred by calculating prejudgment interest using a "declining principal" formula based upon the total damages found in the case with settlement payments and offers credited periodically.

Plaintiffs complain that the trial court should have accrued prejudgment interest from the date suit was filed, rather than 180 days later. Section 6(a) provides for prejudgment interest "during the period beginning on the 180th day after the date the defendant receives written notice of a claim or on the day the suit is filed, whichever occurs first." The first of these two events to occur in this case was the filing of suit. Accordingly, prejudgment interest should be calculated from November 20, 1987, not May 18, 1988.

Finally, the trial court calculated interest through the date of judgment. Section 6(a) provides that prejudgment interest accrues only over a period "ending on the day preceding the date judgment is rendered."

On remand the trial court should make these changes in its calculations.

VI

In sum, we hold that:

• plaintiffs are entitled to prejudgment interest on the entire amount of the judgment, including future damages, reduced by the amounts of the unaccepted settlement offers for the periods those offers were outstanding, to accrue at the rate of 10% per annum from November

20, 1987, to the day before judgment is rendered;

• C H is entitled to contribution from Ecotech to the extent that C H pays more than 50/80ths of the total amount recoverable from C H and Ecotech;

• Ecotech is entitled to contribution from C H to the extent that Ecotech pays more than 30/80ths of the total amount recoverable from C H and Ecotech;

• C H is not entitled to contribution from Energy Coatings;

• Ecotech is not entitled to contribution from Energy Coatings; and

• there is no evidence to support an award of loss of inheritance damages.

The judgment of the court of appeals is reversed and the case is remanded to the trial court for rendition of judgment in accordance with this opinion.