pjc-oil-and-gas-2022-lib

PJC 313.7

D AMAGES

(Tex. 2004). This question should be conditioned on a finding of liability, such as for unreasonable use, trespass, or nuisance. Source of question and instruction. PJC 313.7 is derived from Crosstex North Texas Pipeline, L.P. v. Gardiner , 505 S.W.3d 580, 610 (Tex. 2016); McGinty v. Hen nen , 372 S.W.3d 625, 627 (Tex. 2012) (per curiam) (a party seeking to recover reme dial damages must prove that the damages sought are reasonable and necessary); Coinmach Corp. v. Aspenwood Apartment Corp. , 417 S.W.3d 909 (Tex. 2013); Schneider National Carriers, Inc. , 147 S.W.3d at 276; Coastal Transport Co. v. Crown Central Petroleum Corp. , 136 S.W.3d 227, 235 (Tex. 2004); and Vestal v. Gulf Oil Corp. , 235 S.W.2d 440, 442 (Tex. 1951). Determining appropriate cutoff period for loss of use. Because the cases repeatedly state that the proper measure of damages for temporary injury cannot include damages that will accrue in the future, there must be a legal cutoff point for loss of use. See, e.g., Schneider National Carriers, Inc. , 147 S.W.3d at 275, and PJC 313.5. However, there is conflict in the cases regarding the time period for which loss of use is awarded. See, e.g. , Crosstex North Texas Pipeline, L.P. , 505 S.W.3d at 610 (loss of use up to time of trial); Coastal Transport Co. , 136 S.W.3d at 235 (permitting loss of use incurred while repairs were ongoing, which presumably could continue after trial was begun); J&D Towing, LLC v. American Alternative Insurance Corp. , 478 S.W.3d 649, 677 (Tex. 2016) (permitting loss-of-use damages so long as “reason ably needed” in personal property case). Until there is clarity on the legal cutoff point for loss of use, the Committee leaves that portion of the question to the parties and the trial courts. In addition to the legal determination of cutoff point, there may be factual disputes as to when past loss-of-use damages actually or should have ceased. If additional ques tions for such disputes are necessary, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—General Negligence, Intentional Personal Torts & Work ers’ Compensation . When additional issues affecting causation are alleged. When the parties raise issues of responsibility potentially being apportioned across multiple parties, failure to mitigate damages, comparative fault, or independent causation, the practitioner should refer to the appropriate charges in the current edition of State Bar of Texas, Texas Pat tern Jury Charges—General Negligence, Intentional Personal Torts & Workers’ Com pensation . For a discussion of when to replace “injury” with “occurrence,” see PJC 4.1 in that volume. Economic feasibility exception/failure to prove reasonableness of cost of repairs. If the claimant fails to prove the cost to repair is reasonable and necessary, or if the repairs are not economically feasible, the injury may be deemed permanent as a matter of law and the claimant limited to the diminution in fair market value. See Gilbert Wheeler, Inc. , 449 S.W.3d at 481 (refusing to permit cost of repair because it

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