Deceptive Trade Practices

Weatherford lawyers and those in Mineral Wells, Springtown, Aledo, Azle, Willow Park, Hudson Oaks, Millsap, Brock and other places in Parker County need to have an understanding of the Texas Deceptive Trade Practices Act.
One part of this Act that most attorneys do not realize is discussed in a case opinion issued by the San Antonio Court of Appeals in the case styled, Texas Farm Bureau Mutual Insurance Co. v. Rogers. Here are some of the relevant facts.
Texas Farm Bureau Mutual Insurance Co. (“Farm Bureau”), appealed from the jury’s verdict and award to Shannan Rogers and Cristen Bazan (“the Heirs”), in a suit involving a homeowner’s insurance policy. The Court reversed and rendered judgment that the Heirs take nothing.
In 2008, Cynthia Bazan purchased a house in Kerr County with a mortgage from Regency Solutions (“Regency”), which required her to obtain insurance on the house. Bazan applied for a homeowner’s insurance policy from Farm Bureau and was initially rejected due to lack of tiling around a wood-burning stove in the house. Bazan had the stove tiled and reapplied for a policy, signing a second application. Based on the second application, Bazan was approved for a homeowner’s insurance policy (“the policy”). The policy provided coverage up to $160,000 for the house itself and up to $96,000 for personal property inside the house.
On January 14, 2009, a fire completely destroyed Bazan’s house and all of its contents. Bazan made a claim on the policy.
On January 26, 2009, Bazan admitted in an interview with a Farm Bureau claims investigator that she had a criminal record, although she expressly denied in both of her insurance policy applications that she had ever been convicted of a criminal offense. Farm Bureau’s Waco-based underwriting manager, Gary Ryan, became aware of Bazan’s criminal record on January 30, 2009 and made the decision to rescind her policy. On February 4, 2009, Farm Bureau sent notice to Bazan and Regency that it was rescinding the policy as of the original application date and returning Bazan’s premium payment based on the concealment of her criminal record on the policy application.
Bazan’s attorney sent Farm Bureau a DTPA demand letter requesting actual damages in the amount of $256,000 (the sum of the full policy limits for both the house and its contents) plus interest from the date of loss and attorney’s fees. Farm Bureau refused to pay Bazan anything more under the policy.
Bazan subsequently sued Farm Bureau for breach of contract, DTPA violations, unfair or deceptive acts or practices under the Texas Insurance Code, and negligence. She sought damages in the amount of $256,000, damages for mental anguish, treble damages under the DTPA, and attorney’s fees.
Bazan then died before trial and her Heir’s continued the lawsuit.
In its first issue, Farm Bureau argued Bazan’s DTPA claim did not survive her death and, therefore, the Heirs did not have standing to pursue the claim at trial. This court has repeatedly held that a DTPA claim does not survive the death of the original consumer. In one case, this court held that a deceased consumer’s estate cannot pursue a cause of action under the DTPA because the statute does not explicitly provide for survival and because the right to recovery under the DTPA is punitive in nature–“a purely personal right.” Similarly, in another case, this court held that the parents of a deceased child did not have standing to pursue their child’s DTPA claims either as representatives of the child’s estate or as individuals because they were not “consumers” as defined by the statute.
Because this court has held DTPA claims do not survive the death of the plaintiff-consumer and cannot be pursued by the consumer’s estate or by individual beneficiaries of the consumer’s estate who are not themselves “consumers,” the Heirs in this case did not have standing to pursue Bazan’s DTPA cause of action. Therefore, the jury’s finding on the DTPA cause of action that Farm Bureau caused confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services will not support an award of damages.
What needs to be understood is two points:
1) One is that the San Antonio Court of Appeals will not recognize a DTPA claim where the consumer has died, and
2) The other point, not discussed in this case, is that other courts of appeals do recognize a DTPA claim surviving the death of the consumer.
This is an issue that will ultimately have to be decided by the Texas Supreme Court.