law-breach-of-warranty


BREACH OF WARRANTY CLAIM IN
WORKER'S COMP INSURANCE CONTEXT
The parties disagree on all elements of a claim for breach of express warranty for services, but they agree
the plaintiff must prove at least the following: the defendant sold services to the plaintiff; the defendant made
a representation to the plaintiff about the characteristics of the services by affirmation of fact, promise, or
description; the representation became part of the basis of the bargain; the defendant breached the
warranty; and the plaintiff suffered injury.  See Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227
S.W.3d 876, 886 (Tex. App.- Dallas 2007, no pet.) (citing Sw. Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572,
576-77 & n.3 (Tex. 1991); Mills v. Pate, 225 S.W.3d 277, 289-90 (Tex. App.- El Paso 2006, no pet.); Great
Am. Prods. v. Permabond Int'l, 94 S.W.3d 675, 681 (Tex. App.- Austin 2002, pet. denied)).[18]
[18]  The parties disagree whether a plaintiff must also prove it notified the defendant of the breach if notification is required by
their agreement.  See Paragon Gen. Contractors, 227 S.W.3d at 886 (listing notification as an element but citing cases in which
notification was not expressly set forth as an element).  We need not decide whether notification is an element because
Methodist failed to present evidence raising a genuine issue of material fact on breach or resulting damages, which
undisputedly are elements.
The Methodist Hospital v. Zurich American Inc. Co. (Tex. App. - Houston [14th Dist.] Jul. 7, 2009) (Seymore)
(
INSURANCE LITIGATION: insured's suits against worker's compensation carrier alleging wrongful payment of
noncompensable injury claims within the deductible)(
insurer's duty of good faith and fair dealings, negligent
claims handling,
express warranty claim, breach of warranty - elements, conclusory affidavit)
AFFIRMED: Opinion by
Justice Seymore     
Before Justices Frost, Seymore and Guzman   
14-07-00663-CV The Methodist Hospital v. Zurich American Insurance Company, Tamera McKinney and Mary
Vu   
Appeal from 280th District Court of Harris County
CONCURRING:
Concurring Opinion by Justice Frost (higlighting applicable binding Supreme Court precedent)
    


Daniels v. Richardson (Tex.App.- Houston [1st Dist.] Apr. 16, 2009)(Hanks)
(
product liability, claims against seller vs. manufacturer, warranty, DTPA, issue of jury charge error)
AFFIRM TC JUDGMENT: Opinion by
Justice Hanks   
Before Chief Justice Radack, Justices Alcala and Hanks  
01-06-00242-CV
Jack Daniels d/b/a Daniel's Rentals v. Edward Richardson d/b/a Blue Saphire Lawn Care  
Appeal from County Court at Law No 1 & Probate Ct of Brazoria County
Trial Court Judge: Hon. Jerri Lee Mills


Heckel v. Allen Samuels Chevrolet and GE (Tex.App.- Houston [14th Dist.] Aug. 28, 2008)(Guzman) (product
liability claim time-barred claim, warranty claim remanded)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Guzman  
Before Justices Brock Yates, Guzman and Brown
14-07-00254-CV        Sharon Heckel v. Allen Samuels Chevrolet and General Motors Corporation  Appeal
from 333rd District Court of Harris County
Trial Court
Judge: Joseph J. Halbach

Franklin v. Robert C. Banks (Tex.App.- Houston [1st Dist] Jun. 28, 2007)(Bland)(BoC, warranty)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Nuchia, Hanks and Bland
01-06-00818-CV Cleveland Franklin v. Robert C. Banks
Appeal from County Civil Court at Law No 4 of Harris County (Trial court judge:
Hon. Roberta A. Lloyd)




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