Traditionally, in Texas, a defendant can settle only its proportionate share of common liability and cannot preserve contribution rights against a non-settling defendant under common law or the comparative negligence statute, (Texas Civil Practice and Remedies Code Section 33.001 et seq.), by attempting to settle the plaintiff's entire claim. Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19 (Tex. 1987). Thus, in Beech, defendants who had settled a tort plaintiff's entire claim could not preserve the right to contribution from the alleged joint tort-feasors who did not participate in the settlement. The reasoning behind this, the Court stated, was that a settling defendant would then become a surrogate plaintiff, co-defendant and cross-plaintiff in its lawsuit against the other jointly responsible parties, confusing a jury and possibly prejudicing the remaining parties.
However, in W.R. Grace Co. v. Scotch Corp. Inc., 753 S.W.2d 743 (Tex.App.-Austin 1988, writ denied), a non-culpable retailer, who settled with an injured customer, did not extinguish its claim for indemnity against the manufacturer of a defective product in a products liability case. The Court of Appeals utilized the reasoning of the Supreme Court in Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984), which held that "comparative causation" did not affect the right of a non-culpable retailer to receive indemnity from the manufacturer of the defective product.