Texas

 
 
 
 
 
 
 
 
 
 
 
 
 
 

Statutes of Limitations (TEXAS)

Personal Injury - 2 yrs. [Civil Practice & Remedies Code § 16.003]

Wrongful Death - 2 yrs. [Civil Practice & Remedies Code § 16.003] (from date of death)

Med Mal - 2 yrs. subject to 10-yr. statute of repose [Civil Practice & Remedies Code § 74.251]

Property Damage - 2 yrs. [Civil Practice & Remedies Code § 16.003]

Contracts (Written and Oral) - 4 yrs [Civil Practice & Remedies Code § 16.004]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [Bus. & C. § 2.725]

 

In most cases, a cause of action accrues when a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur [Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003)]

 

 

 

Statutes of Repose (TEXAS)

Products - 15 yrs. [V.T.C.A., Civil Practice & Remedies Code § 16.012]

Real Property - 10 yrs. (if the claimant presents a written claim during the 10-year period, the period is extended for 2 yrs. from the date the claim is presented) (may sue within 2 yrs. if damage/injury/death occurs during 10th year) [Civil Practice & Remedies Code §§ 16.008; 16.009]

 

 

Claims Against Public/Gov. Entities (NOTE: “Sovereign Immunity” Limitations May Apply) (TEXAS)

Against All Entities - 6 mos. notice [Civil Practice & Remedies Code § 101.101]

 

 

 

Comparative Negligence (TEXAS)

Modified comparative (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [Civil Practice & Remedies Code §§ 33.001;33.012]

 

 

 

Made Whole Doctrine (MWD) (TEXAS)

Recognized/applied, but can be overridden by a contract/policy.  Insurer is not entitled to subrogation if Insured’s loss is in excess of the amounts recovered from Insurer and Tortfeasor [Ortiz v. Great Southern Fire and Cas. Ins. Co., 597 S.W.2d 342 (Tex. 1980)].  However, MWD did not apply to medical insurer’s claim based on contractual right to reimbursement or subrogation; policy gave to insurer an unfettered right to recover the proceeds from insured’s settlement of the underlying tort suit [Fortis Benefits v. Cantu, 234 S.W.3d 642 (Tex. 2007)]

 

If an insured is entitled to seek recovery from tortfeasor for benefits paid by a subrogee, then all insurer is entitled to recover is: (1) if not represented by attorney, no more than 1/2 of insured’s gross recovery or the total cost of benefits paid; OR (2) if represented by attorney, no more than 1/2 of insured’s gross recovery less atty fees and costs or the total cost of benefits paid.  A common law doctrine that requires insured to be made whole before first does not apply to insurer’s recovery under this section. [Civil Practice & Remedies Code § 140.005]

 

 

 

Economic Loss Doctrine (ELD) (Assuming No Injury to Person or Damage to “Other Property”) (TEXAS)

Recognized/applied.  Strict liability does not apply to economic losses [Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex. 1977); Purina Mills, Inc. v. Odell, 948 S.W.2d 927 (Tex. App. 1997)].  When injury is only economic, action sounds in contract alone [Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986)].  ELD barred home purchaser’s negligence claims against mold assessment consultant, as onlu duty breached was a duty created by contract [Arlington Home, Inc. v. Peak Environmental Consultants, Inc., 361 S.W.3d 773 (Tex. App. 2012)]

 

ELD does not apply only to bar claims against those in a direct contractual relationship; it also applies to preclude tort claims between parties who are not in privity. Homeowner did not have privity with subcontractor due to a written agreement between contractor and subcontractor to perform insulation services, and, therefore homeowner could not bring a breach of contract claim against subcontractor [Schambacher v. R.E.I. Elec., Inc., 2010 WL 3075703 (Tex. App. 2010) – unpublished decision)]

 

However, tort damages are recoverable for a fraudulent inducement claim irrespective of whether fraudulent representations are later subsumed in a contract or whether plaintiff only suffers economic losses related to the subject matter of contract [Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 4141 (Tex. 1998)]. 

 

Also, ELD did not bar landowner’s claim against a plumber resulting from plumber’s failure to install the hot water heating system properly, resulting in water flooding the house and damaging the structure; plumber's duty not to flood or otherwise damage the house was independent of any obligation undertaken in its plumbing subcontract, and the damages caused by the breach of that duty extended beyond the economic loss of any anticipated benefit under the plumbing contract.  ELD generally precludes recovery in tort for economic losses resulting from a party's failure to perform under a contract when the harm consists only of the economic loss of a contractual expectancy; but, it does not bar all tort claims arising out of a contractual setting [Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716 (Tex. 2014)]

 

 

 

Certificate/Affidavit Of Merit Requirements (Claims Against Licensed Professionals) (TEXAS)

In any action arising out of the provision of professional services by a licensed or registered professional, Plaintiff is required to file an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who is competent to testify, holds the same professional license as Defendant, and knowledgeable in the area of practice of Defendant [V.T.C.A., Civil Practice & Remedies Code § 150.002].  In Med Mal actions, a claimant must serve expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted [V.T.C.A., Civil Practice & Remedies Code § 74.351]

 

 

 

Landlord/Tenant Subrogation (TEXAS)

Court will examine the lease terms.  Exculpatory clause contained in the lease, which exempted both landlord and tenant from future liability for damage to leased premises to extent of compensation for losses by insurance funds, was valid and enforceable against claims made by landlord against tenant where fire destroyed leased premises. [Interstate Fire Ins. Co. v. First Tape, Inc., 817 S.W.2d 142 (Tex. App. 1991)]

 

 

 

Reimbursement of Deductible(s) (TEXAS)

Auto - Insurer must tale certain actions:

 

If there is a liable third party, Insurer must take action to recover the deductible against the third party not later than 1 yr. from the date the insured’s claim was paid; or pay the amount of the deductible to the insured.  Insurer is not required to take action or pay the amount of the deductible if, not later than the earlier of the first anniversary of the date the insured’s claim is paid or the 90th day before the date the statute of limitations for a negligence action expires, the insurer: (1) notifies the insured in writing that the insurer does not intend to take further collection actions against the third party; and (2) authorizes the insured to take further collection actions.

[Insurance Code § 542.204].

 

Property - No law available.

 

 

 

MedPay and PIP (TEXAS)

MedPay - Subrogation allowed.  PIP - No subrogation allowed and/or no such coverage available.

 

 

 

Liability of Parents (TEXAS)

Parent who has the duty of control and reasonable discipline of a child is liable for any property damage proximately caused by: (1) negligent conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent or other person to exercise that duty; or (2) willful and malicious conduct of a child who is between 10 and 18 [Insurance Code § 41.001].  $25,000 (+ costs and atty fees) liability for willful and malicious conduct [Insurance Code § 41.002]

 

 

 

Joint Liability (TEXAS)

Joint and several liability only for Defendants who are more than 50% at fault or Defendants who acted with intent to harm (Plaintiff may recover all damages from any Defendant regardless of Defendant’s individual share of liability).  Several liability for all other Defendants (Plaintiff can recover from each Defendant only that Defendant’s share of liability). [Insurance Code § 33.013]

 

 

 

Independent Cause of Action for Evidence Spoliation (TEXAS)

Texas does not recognize spoliation as a tort cause of action[Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998)]

 

 

 

Conflicts of Law (TEXAS)

Courts will apply the “most significant relationship” test.  The rights and duties of the parties are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties [Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979); Henry Schein v. Stromboe, 102 S.W.3d 675, 696 (Tex. 2002)]