DTPA Claims: Upstream Liability and Subrogee Standing

Introduction

While the legislative purpose underpinning the Texas Deceptive Trade Practices Act (DTPA) urges flexible interpretation and application, the DTPA was neither intended to impose liability on upstream parties nor provide a separate cause of action for assignees and subrogees seeking to recover from large consumer businesses.  The Texas Supreme Court has mandated a liberal construction of the DTPA[1] to “protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.”[2]  However, the Legislature intended there to be limits on the DTPA, including its scope of liability and standing requirements.[3] Read More ›

Texas House and Senate Pass Limits on Weather Claim Lawsuits

On Wednesday, May 17, the Texas Senate approved House Bill 1774.  This bill will undoubtedly be signed by Governor Greg Abbott.  He is a very conservative Republican. Governor Abbott called lawsuits against insurers following hailstorms “the newest form of lawsuit abuse.” He also said he wanted to see legislation on his desk “that limits abusive hailstorm litigation.”  Well, now he has that very bill to sign into law. Read More ›

Restriction of Access to Information Even Under FOIA

Introduction

Six states currently have statutes restricting access to public records to citizens of only that state: Alabama, Arkansas, Delaware, Missouri, New Hampshire, Tennessee and Virginia.[1]  The Freedom of Information Act (“FOIA) is a federal law which gives citizens the right to access information from the government.[2]  The purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”[3]  However, in 2013, the United States Supreme Court held there is no constitutional right to obtain all the information provided by FOIA.[4] Read More ›

General Contractors and the Extension of Liability

A General Contractor generally does not owe a duty of care to employees of a Subcontractor.[1]  The courts have held that a duty arises only if the defendant retains or actually exercises some control over the manner in which the independent contractor performs its work.[2] Read More ›

Texas Railroad Commission File Effect on Tolling of the Statute of Limitations

Preventing the tolling of the statute of limitations per the discovery rule or fraudulent concealment is extremely important to Texas defendants. Records on file with the Texas Railroad Commission (“TRC”) have a significant effect on whether plaintiffs can use these doctrines to toll the statute of limitations. Namely, when publicly available TRC files could have alerted a plaintiff of its cause of action, the plaintiff is typically not allowed to use the discovery rule or fraudulent concealment to toll the statute of limitations. Read More ›

Admissibility of Police Officer Conclusions Contained in an Accident Report

As a general rule, police officers are not qualified to render opinions regarding causation or fault merely because they are police officers. Rather, a police officer can only provide opinions pertaining to causation or fault if they are trained in the science and possess the high degree of knowledge sufficient to qualify as an accident reconstruction expert. Absent qualifying as an accident reconstruction expert, the admissibility of accident reports is limited to the statements that reflect the officers' firsthand factual observations. Read More ›

Puffery as a Defense to Negligent Misrepresentation

Texas has long recognized a cause of action for the tort of negligent misrepresentation. In order to sustain a claim for negligent misrepresentation, the plaintiff must show the defendant: Read More ›

Removal from State Court to Federal Court

Any case can be removed to federal court, but unless certain criteria are met, the case will be summarily remanded to state court, and costs and expenses may be assessed against the defendant for “improvident removal”.[1] Generally, removal is proper if there is a civil action that involves[2] (1) federal-question jurisdiction; (2) diversity jurisdiction; (3) a statute that authorizes removal or; (4) alienage jurisdiction.[3] Read More ›

Imputed Knowledge of Employers

BACKGROUND

The imputation doctrine is a common-law rule deriving from the law of agency.[1] Under this doctrine, a principal is deemed to know facts that are known to its agent.[2] Texas courts have found that a principal may be held liable for fraud or misrepresentation of an agent acting within the scope of the agency, even though the principal has no knowledge of the fraud or misrepresentation.[3] However, if the fraud is committed by the agent toward the principal, the imputation doctrine does not apply.[4] Read More ›

Nonmanufacturing Sellers Liability When the Manufacturer is Beyond Jurisdiction of the Court

Nonmanufacturing sellers are not always exempt from liability of harm caused by defective products.

Generally, in Texas, a nonmanufacturing seller of a defective product is not liable for harm caused by that product.[1] However, there is a provision that permits a plaintiff to proceed against a nonmanufacturing seller if the product's manufacturer is “not subject to the jurisdiction of the court.”[2] Moreover, if “after service on a nonresident manufacturer... the manufacturer fails to answer or otherwise make an appearance in the time required by law, it is conclusively presumed... that the manufacturer is not subject to the jurisdiction of the court unless the seller is able to secure personal jurisdiction over the manufacturer in the action.”[3] Read More ›

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