PJC Business

DTPA/I NSURANCE C ODE

PJC 102.22

PJC 102.22 Defenses to Deceptive Trade Practices Act and Insurance Code Chapter 541 Claims (Comment) Common-law defenses. A primary purpose of the enactment of the DTPA was to provide consumers a cause of action for deceptive trade practices without the burden of proof and numerous defenses encountered in a common-law fraud or breach-of warranty suit. See Smith v. Baldwin , 611 S.W.2d 611, 614 (Tex. 1980) (common-law defense of “substantial performance” no defense to DTPA action); see also Alvarado v. Bolton , 749 S.W.2d 47, 48 (Tex. 1988) (doctrine of merger not applicable in warranty suit brought under DTPA); Ojeda de Toca v. Wise , 748 S.W.2d 449, 451 (Tex. 1988) (imputed notice under real property recording statute not a defense to DTPA action for damages); Weitzel v. Barnes , 691 S.W.2d 598, 600 (Tex. 1985) (parol evidence rule will not bar proof of violation of DTPA section 17.46(b)). Thus it is generally true that common-law defenses are unavailable in a DTPA suit. The above reasoning has been extended to Insurance Code suits. See Frank B. Hall & Co. v. Beach, Inc. , 733 S.W.2d 251, 264 (Tex. App.—Corpus Christi–Edinburg 1987, writ ref’d n.r.e.) (contributory negligence could not defeat recovery on Insur ance Code claims). For cases discussing the applicability of “as is” language to the DTPA, see Pruden tial Insurance Co. of America v. Jefferson Associates, Ltd. , 896 S.W.2d 156 (Tex. 1995), and Smith v. Levine , 911 S.W.2d 427 (Tex. App.—San Antonio 1995, writ denied). Statutory defenses. Third-party information. A defendant’s reliance on third-party information in making the false representation may be a defense to a claim brought under DTPA sec tion 17.50. Tex. Bus. & Com. Code § 17.506(a)–(c) (DTPA). Complete tender. The defense of complete tender may apply if the defendant proves that he tendered to the plaintiff, within thirty days after receiving written notice of the complaint, the amount of actual damages claimed and the expenses, including attorney’s fees, if any, reasonably incurred by the plaintiff in asserting his claim. DTPA § 17.506(d). Waiver. The following elements must be proved: (1) the waiver was in writing, signed by the consumer, and in the form prescribed by DTPA § 17.42(c); (2) the con sumer was not in a significantly disparate bargaining position; and (3) in seeking or acquiring the goods or services, the consumer was represented by legal counsel who was not directly or indirectly identified, suggested, or selected by the defendant or an agent of the defendant. DTPA § 17.42(a). Comparative or proportionate responsibility. DTPA claims are subject to the pro portionate responsibility provisions of chapter 33 of the Texas Civil Practice and Rem-

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