PJC Business

D AMAGES

PJC 115.36

cle Entertainment, Inc. , 523 S.W.3d 746, 749 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (applies to intentional torts including assault). Courts of appeals have differed on the circumstances under which fraud is subject to apportionment. Compare Villarreal v. Wells Fargo Brokerage Services, LLC , 315 S.W.3d 109, 124 n.6 (Tex. App.—Houston [1st Dist.] 2010, no pet.), Isaacs v. Bishop , 249 S.W.3d 100, 116–17 (Tex. App.—Texarkana 2008, pet. denied), JCW Electronics, Inc. v. Garza , 176 S.W.3d 618, 626 & n.3 (Tex. App.—Corpus Christi–Edinburg 2005), rev’d on other grounds , 257 S.W.3d 701 (Tex. 2008), and JHC Ventures, L.P. v. Fast Trucking, Inc. , 94 S.W.3d 762, 773–74 (Tex. App.—San Antonio 2002, no pet.), with Mayes v. Stewart , 11 S.W.3d 440, 451–52 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding that only actual knowledge of fraud—not “should have known” negligence standard—will defeat claim for fraud), and Davis v. Estridge , 85 S.W.3d 308, 311–12 (Tex. App.—Tyler 2002, pet. denied) (“Traditionally, negligence has never been a defense to fraud.”). Before the 1995 changes to the proportionate responsibility statute, intentional tort claims, including fraud, were not subject to apportionment. See Stewart Title Guaranty Co. v. Sterling , 822 S.W.2d 1, 6 n.7 (Tex. 1991), overruled in part on other grounds by Tony Gullo Motors I, L.P. v. Chapa , 212 S.W.3d 299 (Tex. 2006); Trenholm v. Ratcliff , 646 S.W.2d 927, 933 (Tex. 1983). The current version of the proportionate responsibility statute has done away with this stat utory exclusion. Statutory claims. Whether the chapter 33 proportionate responsibility question in PJC 115.36 should be used in connection with a statutory claim depends on whether the statute contains a separate and conflicting fault-allocation scheme. In re Xerox Corp. , 555 S.W.3d 518, 523 (Tex. 2018) (Texas Medicaid Fraud Prevention Act not subject to chapter 33 apportionment). The supreme court has found that chapter 33 does not apply to conversion claims under article 3 of the UCC. Southwest Bank v. Information Support Concepts, Inc ., 149 S.W.3d 104, 110–11 (Tex. 2004). The supreme court has found that chapter 33 does apply to breach of implied warranty claims under article 2 of the UCC. JCW Electronics, Inc. , 257 S.W.3d at 702. Intermediate appellate court cases state that chapter 33 applies to Texas Securities Act cases. Villarreal , 315 S.W.3d at 124 n. 6. Intermediate cases state that chapter 33 does not apply to Texas Uniform Fraudulent Transfers Act cases. Challenger Gaming Solutions, Inc. v. Earp , 402 S.W.3d 290, 299 (Tex. App.—Dallas 2013, no pet.). Use of “harm” or “damages.” Depending on the type of cause submitted to the jury, the term “harm” or “damages” should be used as appropriate. See also the current editions of State Bar of Texas, Texas Pattern Jury Charges—General Negligence, Intentional Personal Torts & Workers’ Compensation and Texas Pattern Jury Charges—Malpractice, Premises & Products for instances in which “injury” or “occurrence” may be appropriate.

501