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35 Cards in this Set
- Front
- Back
DTPA is...
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DTPA is liberally construed to protect consumers and generally cannot be waived.
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DTPA Consumer Standing?
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to have standing as a "consumer," a person must
(i) seek or acquire goods or services by purchase or lease & (ii) the goods or services acquired must form the basis of the complaint. |
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if consumer has standing, he can bring a DTPA claim regardless of whether or not:
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•consumer was the party that purchased the goods.
•had privity, b/c privity NOT required. •if a beneficiary, must be intended not incidental. |
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if consumer is a third-party beneficiary, must be intended beneficiary meaning:
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the transaction was INTENDED to 'benefit' the 3P and rendered to benefit 3P.
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What is the DTPA 4x4
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RIGHTS (claim):
•laundry-list misrep •express & implied warranties •unconscionability •insurance code REMEDIES: •Economic Dmgs •Mental anguish •Additional Dmgs (know/intent) •Attys fees |
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Laundry-list misrepresentations are specifically enumerated in the DTPA: the consumer must show ____ on the misrepresentation.
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reliance
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four main Laundry-list violations?
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•misrepresented the "characteristics" of a good or service.
•Misrepresented the "qualities" of a good or service. •Represented that an agreement confers/involves rights, remedies or obligations that it does not have. •Failure to disclose info about goods or services known at time of transaction, IF ∆ intended that failure to disclose was to induce the consumer into a transaction consumer wouln't have otherwise entered. |
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the DTPA right to sue for breach of express or implied warranty, is ___ of the DTPA, and thus must be brought into the DTPA.
DTPA does not provide a ____ of express warranty, but the ___ does. |
•independent
•definition; UCC |
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implied warranty of merchantability:
•requires a merchant. •test for merchantability is whether _________________________. |
the product (good) is fit for its "ORDINARY PURPOSE."
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________ says implied warranty of merchantability does NOT apply to 'used' goods.
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Case Law
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Service Warranties [can] or [cannot] be disclaimed.
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service warranties, like the implied warranty of good and workman like repair or modification of existing good CANNOT be disclaimed.
-judge made warranty |
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UNCONSCIONABILITY is defined as an act that to the consumer detriment takes ___ of lack of knowledge/ability/experience of consumer to a ___ ___ degree.
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advantage; grossly unfair
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if consumer's 'rights' were violated by a deceptive act or practice, consumer must show what in order to get remedies under DTPA?
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PRODUCING cause
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DTPA requires that the deceptive act or practice be a ___ ___ of economic damages or mental anguish.
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"producing cause"
*producing cause = cause in fact *NO foreseeability req'd |
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Remedies: ECONOMIC DAMAGES is defined as?
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compensation for pecuniary loss, like repair and replacement cost.
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things specifically excluded from Economic Damages are:
*to recover for these things a separate cause of action must be brought. |
non-economic dmgs:
• pain & suffering = can't recover •loss of consortium = can't recover •physical impairment = can't recover •loss of society = can't recover note: can recover under mental anguish if these injuries 'substantially disrupt daily routine' |
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Remedies: MENTAL ANGUISH requires finding of:
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•KNOWINGLY (∆ actually aware of deceptive conduct)
•Case law requires π show direct evidence of the nature, severity, and duration that establishes a "SUBSTANTIAL DISRUPTION OF DAILY ROUTINE." |
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Remedies: Additional Damages.
•if consumer shows ∆ "knowingly": •if consumer shows ∆ "intentionally": |
KNOWINGLY:
- upto 3 times economic dogs - no increase for mental anguish INTENTIONALLY: -upto 3 times economic dmgs -upto 3 times mental anguish |
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For ∆ to have acted "intentionally" it means:
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∆ was knowingly deceptive if:
•actually aware of deception, & •specifically intended consumer to detrimentally rely. |
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Remedies: Attorney Fees
•if a consumer prevails then _________ |
consumer SHALL be awarded reasonable atty fees and costs
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four DTPA Defenses are:
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DTPA DEFENSES:
•DTPA waiver •DTPA notice •disclaimer of warranties •professional services exemption |
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INSURANCE ISSUES
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generally INSURANCE questions test both the insurance code and DTPA.
if so: start w/ insurance code when organizing your answer |
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Insurance Code Violations:
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•misrep a material fact or policy provision = an unfair or deceptive act or practice.
**failed to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim in which insurer's "liability" is "reasonably clear". |
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Insurance Code Violations:
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•failure to promptly provide policyholder a REASONABLE EXPLANATION of basis of claim denial or offer of a compromise.
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Insurance Code Violations:
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•failing w/in a reasonable time to either AFFIRM or DENY coverage of claim to a policyholder.
•Refusing, failing, or unreasonably delaying a settlement offer under applicable first party coverage on basis that coverage may be available or that third parties are responsible for the damages suffered. |
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Insurance Code: TIMETABLE
(i) w/in __ days of receipt of claim notice, insurer must ACKNOWLEDGE claim, begin investigation, and request supporting docs from policyholder. (ii) w/in ___ days of recieving requested info, insurer must notify claimant whether it will accept or deny claim or that it needs extra time (can extend deadline extra 45days) (iii) if arson, insurer can get extra 15days if has "________" to suspect arson. |
(i) 15
(ii) 15 (iii) reasonable basis |
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Insurance Code: TIMETABLE (short)
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(i) insured has 15 days of claim receipt to acknowledge claim, begin investigation, ask for supporting docs from insured.
(ii) insurer has 15 days from receiving requested docs from insured to tell insured if accept or deny claim or say need extra time (45 day extension) •if insurer suspects arson, can get extra 15 days if has "reasonable basis" |
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What are the four DTPA causes of action?
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•laundry list;
•warranty (express or implied) •unconscionability; •Insurance Code |
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DTPA
What is an Express Warranty breached? |
an express warranty is a promise of fact that "forms" part of the basis of the bargain.
*must be more than mere puffery or opinion. |
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DTPA
What are the Implied Warranties? |
(only apply to goods thru UCC)
•implied warranty of MERCHANTABILITY. •implied warranty of FITNESS for PARTICULAR PURPOSE. |
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DTPA
-test for implied warranty of MERCHANTABILITY? |
was the good "fit for a particular purpose"?
*usu req's a merchant *not apply to used goods |
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Causation required under the DTPA?
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"producing cause"
-the deceptive act or practice must be a "producing cause" of economic damages or mental anguish damages. |
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DTPA Remedy
how to get Attorney's fees? |
P can get "reasonable and necessary" attys fees.
for contingent fees--case law requires testimony to show time/labor involved, fee customarily charged. *∆ can get attys fees if Ct finds P's claim was groundless, harassing or brought in bad faith |
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DTPA
define UNCONSCIONABILITY? |
Unconscionability is defined as an act that to consumer's detriment take advantage of lack of knowledge, ability, experience of consumer to a "grossly unfair degree."
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DTPA
define "economic damages" |
compensatory damages for pecuniary loss, like repair and replacement costs
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