Chapter 18-1 Scope of Chapter 33

• Jurisdiction: United States

18-1 Scope of Chapter 33

Chapter 33 applies to any cause of action based on tort and in actions under the Deceptive Trade Practices Act ("DTPA") in which "a defendant, settling person or responsible third party is found responsible for a percentage of the harm for which relief is sought."³

Whether a cause of action is "based on tort," as required for Chapter 33 to apply, is not always easily determined. The focus of the inquiry seems to be on the nature of the damages sought and the nature of the wrong alleged, rather than whether the cause of action sounds in tort or contract.

For example, a breach of implied warranty claim for personal injury or wrongful death caused by a defective product is an action "based on tort" and is subject to Chapter 33.⁴ By contrast, Chapter 33 does not apply to a claim for breach of an express warranty where the damages sought are not personal injury or wrongful death damages.⁵ Chapter 33 likewise would not apply to an action for conversion of a negotiable instrument under Article 3 of the Uniform Commercial Code.⁶ The application of Chapter 33, however, is not limited to tort causes of action seeking personal injury or wrongful death damages.⁷

If the cause of action is governed by a statutory scheme that cannot be reconciled with the apportionment scheme of Chapter 33, then Chapter 33 does not apply.⁸

Chapter 33 expressly excludes certain actions from its scope. Chapter 33 does not apply to actions to recover workers' compensation benefits or an action against an employer to recover exemplary damages based on the death of the employee,⁹ nor does it apply to certain claims for damages based on the manufacture of methamphet-amine.¹⁰

Importantly, Chapter 33 does not apply to claims for exemplary or punitive damages even in an action to which Chapter 33 otherwise applies.¹¹

--------

Notes:

^[3] Tex. Civ. Prac. & Rem. Code Ann. § 33.002(a)(1), (2).

^[4] JCW Elec., Inc. v. Garza, 257 S.W.3d 701, 707 (Tex. 2008).

^[5] GB Tubulars, Inc. v. Union Gas Operating Co., 527 S.W.3d 563, 576 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); Cressman Tubular Prods. Corp. v. Kurt Wiseman Oil & Gas, Ltd., 322 S.W.3d 453, 459-60 (Tex. App.—Houston [14th Dist.] 2010, pet denied).

^[6] Southwest Bank v. Info. Support Concepts, Inc., 149 S.W.3d 104, 108 (Tex. 2004).

^[7] See, e.g., JCWElecs., Inc. v. Garza, 257 S.W.3d 701, 707 (Tex. 2008); Villarreal v. Wells Fargo Brokerage Servs., LLC, 315 S.W.3d 109, 125-26 (Tex. App.—Houston [1st Dist.] 2010, no...