pjc-oil-and-gas-2022-lib

D AMAGES

PJC 313.25

PJC 313.25 Defensive Instruction on Mitigation—Contract Damages Do not include in your answer any amount that you find Paul Payne could have avoided by the exercise of reasonable care. COMMENT When to use. If the evidence raises a question about the plaintiff’s failure to miti gate damages after the defendant’s actionable conduct, an instruction on mitigation should be included with the damages question. Alexander & Alexander of Texas, Inc. v. Bacchus Industries, Inc. , 754 S.W.2d 252, 253 (Tex. App.—El Paso 1988, writ denied). Defendant’s burden of proof. Failure to mitigate is an affirmative defense, and the burden of proof is on the party asserting such a failure. The supreme court has approved the submission of affirmative defenses by instruction, “provided that the bur den of proof is properly placed.” Cropper v. Caterpillar Tractor Co. , 754 S.W.2d 646, 651 (Tex. 1988). Where appropriate, the trial court may specifically state the burden of proof by supplementing the above instruction or the general instructions (see PJC 300.3), or the trial court may submit a question on the defense. The defendant must offer evidence showing not just the plaintiff’s lack of care but also the amount by which the damages were increased by such failure to mitigate. Cocke v. White , 697 S.W.2d 739, 744 (Tex. App.—Corpus Christi–Edinburg 1985, writ ref’d n.r.e.); R.A. Corbett Transport, Inc. v. Oden , 678 S.W.2d 172, 176 (Tex. App.—Tyler 1984, no writ); Copenhaver v. Berryman , 602 S.W.2d 540, 544 (Tex. App.—Corpus Christi– Edinburg 1980, writ ref’d n.r.e.). Settlement offers and expense to plaintiff of mitigation. The supreme court has held that a mere refusal to accept a settlement offer cannot support submission of a mitigation-of-damages instruction and that the long-standing law of this state requires a claimant to mitigate damages only if it can do so with “trifling expense or with rea sonable exertions.” Gunn Infiniti, Inc. v. O’Byrne , 996 S.W.2d 854, 857 (Tex. 1999). DTPA and Insurance Code. Several appellate opinions have cited the duty to mitigate as grounds for allowing DTPA consumers to recover mitigation expenses as actual damages. See, e.g., Hycel, Inc. v. Wittstruck , 690 S.W.2d 914, 924 (Tex. App.— Waco 1985, writ dism’d); Orkin Exterminating Co. v. LeSassier , 688 S.W.2d 651, 653 (Tex. App.—Beaumont 1985, no writ). The Texas Supreme Court has held that plain tiffs in DTPA cases have the same duty to mitigate damages as in other cases. Gunn Infiniti, Inc. , 996 S.W.2d at 858; see also JCB, Inc. v. Horsburgh & Scott Co. , 597 S.W.3d 481, 487 (Tex. 2019). The duty to mitigate also has been used defensively in DTPA and Insurance Code suits. See, e.g., Alexander & Alexander of Texas, Inc. , 754 S.W.2d at 253 (former Insurance Code article 21.21).

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