PJC Business

DTPA/I NSURANCE C ODE

PJC 102.23

PJC 102.23 Statute of Limitations

(DTPA § 17.565; Tex. Ins. Code § 541.162) If you answered “Yes” to Question ______ [ 102.1, 102.7, 102.8, or 102.14 ], then answer the following question. Otherwise, do not answer the following question. QUESTION ______ By what date should Paul Payne , in the exercise of reasonable diligence, have discovered all the false, misleading, or deceptive acts or practices of Don Davis ? Answer with a date in the blank below. Answer: _______________ COMMENT When to use. PJC 102.23 is used to determine if the suit is barred by the statute of limitations. Tex. Bus. & Com. Code §17.565 (DTPA) incorporates the “discovery rule.” See KPMG Peat Marwick v. Harrison County Housing Finance Corp. , 988 S.W.2d 746, 749–50 (Tex. 1999); Eshleman v. Shield , 764 S.W.2d 776 (Tex. 1989); see also Tex. Ins. Code § 541.162(a) (formerly Tex. Ins. Code art. 21.21, § 16(d)). Even if the act occurred more than two years before suit was filed, the limitations defense will not apply if the plaintiff did not discover or could not reasonably have discovered the act until a date within two years before the suit was filed. To prevail, a plaintiff need prove only one act or practice that is not time-barred. Therefore, the question asks when the plaintiff discovered or should have discovered the latest act that was a pro ducing cause of damages. If the date is within the two-year period, the limitations defense does not apply. Source of question. The question is derived from Willis v. Maverick , 760 S.W.2d 642, 647 (Tex. 1988); see also KPMG Peat Marwick , 988 S.W.2d at 749–50 (Tex. 1999). Broad-form submission. PJC 102.23 is a broad-form question designed to be accompanied by one or more appropriate instructions. Tex. R. Civ. P. 277 requires that “the court shall, whenever feasible, submit the cause upon broad-form questions.” Tex. R. Civ. P. 277; see Thota v. Young , 366 S.W.3d 678, 689 (Tex. 2012) (rule 277’s use of “whenever feasible” mandates broad-form submission in any or every instance in which it is capable of being accomplished). For further discussion, see PJC 116.2 regarding broad-form issues and the Casteel doctrine.

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