PJC Business

DTPA/I NSURANCE C ODE

PJC 102.22

ary for similar legal services. Failure to give the required notice may give rise to an abatement or to a defense to payment of all or part of the claimant’s attorney’s fees. See Tex. Ins. Code §§ 542A.005, 542A.007. The notice is admissible in evidence. Tex. Ins. Code § 542A.003(g). If there is a factual dispute about whether or when the notice was given, or whether it was adequate, the Committee expresses no opinion on whether such matters are for the court or should be submitted to the jury. Warranty defenses under UCC. The supreme court has stated that section 17.42 of the DTPA makes invalid a limitation or waiver of liability for violations of section 17.46 but does not do so to warranty disclaimers authorized by the UCC or common law. Southwestern Bell Telephone Co. v. FDP Corp. , 811 S.W.2d 572, 576–77 (Tex. 1991). If the consumer pleads a DTPA cause of action alleging violation of warranties arising under UCC article 2, several statutory defenses based on article 2 have been held to apply, including— • buyer’s waiver of implied warranties. FDP Corp. , 811 S.W.2d at 576–77; Mercedes-Benz of North America, Inc. v. Dickenson , 720 S.W.2d 844, 852 (Tex. App.—Fort Worth 1986, no writ). • buyer’s failure to give notice to seller of breach of warranty as required by Tex. Bus. & Com. Code §2.607(c)(1) (Tex. UCC). Ketter v. ECS Medical Systems, Inc. , 169 S.W.3d 791, 796 (Tex. App.—Dallas 2005, no pet.). • contractual limitation of damages in an express warranty. Rinehart v. Sonitrol of Dallas, Inc. , 620 S.W.2d 660, 663–64 (Tex. App.—Dallas 1981, writ ref’d n.r.e.). Professional services exemption. The DTPA exempts certain claims for damages based on professional services, “the essence of which is the providing of advice, judg ment, opinion, or similar professional skill.” The exemption does not apply to— 1. “an express misrepresentation of a material fact that cannot be character ized as advice, judgment, or opinion”; 2. “a failure to disclose information in violation of [DTPA] Section 17.46(b)(24)”; 3. “an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion”; 4. “breach of an express warranty that cannot be characterized as advice, judgment, or opinion”; or 5. “a violation of [DTPA] Section 17.46(b)(26).” DTPA § 17.49(c). The term “professional services” is not defined in the statute. Negotiated contract exemption. The DTPA also exempts claims for damages based on a written contract with a total consideration of $100,000, if in negotiating the contract the consumer is represented by legal counsel not “directly or indirectly identi-

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