PJC Business

DTPA/I NSURANCE C ODE

PJC 102.2

PJC 102.2 Description of Goods or Services or Affiliation of Persons (DTPA § 17.46(b)(5)) Representing that goods [ or services ] had or would have characteristics that they did not have [ or ] COMMENT When to use. PJC 102.2 is designed to accompany the question in PJC 102.1 to submit a cause of action based on Tex. Bus. & Com. Code § 17.46(b)(5) (DTPA). Use of “or.” If used with other instructions (see PJC 102.3–102.6), PJC 102.2 must be followed by the word or , because a finding of any one of the acts or practices defined in the instructions would support recovery under the DTPA. Source of instruction. DTPA § 17.46(b)(5) prohibits “representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not.” Use of statutory language. The supreme court has held that jury submissions of section 17.46(b) cases should follow the language of the statute as closely as possible but may be altered somewhat to conform to the evidence of the case. Spencer v. Eagle Star Insurance Co. of America , 876 S.W.2d 154, 157 (Tex. 1994); Brown v. American Transfer & Storage Co. , 601 S.W.2d 931, 937 (Tex. 1980); accord Regal Finance Co., Ltd. v. Tex Star Motors, Inc. , 355 S.W.3d 595, 601 (Tex. 2010) (adopting Spencer and Brown in a UCC article 9 case). Thus, if appropriate, the word characteristics may be replaced with the word sponsorship , approval , ingredients , uses , benefits , or quanti ties . See DTPA §17.46(b)(5); Brown , 601 S.W.2d at 937. Material terms, however, should not be omitted or substituted. See Transport Insurance Co. v. Faircloth , 898 S.W.2d 269, 273 (Tex. 1995) (construing DTPA section 17.46(b)(23), renumbered in 2001 as DTPA § 17.46(b)(24)). Affiliation of person. If deception regarding a person’s affiliation is claimed, PJC 102.2 may be reworded as follows: Representing that a person had or would have a sponsorship that the person does not or will not have. Substitutions for “sponsorship.” In an appropriate case, the word sponsorship may be replaced with approval , status , affiliation , or connection . See DTPA § 17.46(b)(5). “Person” includes business entity. Under the DTPA, the word person includes a business entity. DTPA §17.45(3). In a case in which a business entity is involved,

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