Every now and then we come across something new and interesting that, frankly, we hadn’t thought of ourselves. That’s how we felt when we read the recent opinion in Boudreaux v. Corium International, Inc., C.A. No. :12-cv-2644-M, slip op. (N.D. Tex. May 7, 2013). We mentioned the same sort of thing a few years ago in connection with a case from Tennessee that was won on the "useful life" language of that states’ statute of repose. We stated that the case "shows the need to pay close attention to, and do meticulous research into, local state law."
- The DTPA "does not explicitly provide for the survivability of a consumer’s cause of action." Slip op. at 4.
- Where a statute is silent, under the common law "actions primarily affecting property and property rights survived the death of the aggrieved party whereas actions asserting purely personal rights did not." Id.
- Because they are "punitive" a claim for exemplary damages is considered a "personal right" and does not survive death. Id.
- The DTPA, since it provides for treble damages, is also punitive in nature. Id.
- Claims which the law does not allow to be assigned to third parties are also personal in nature. Id. at 4-5.
- Under Texas law, DTPA claims may not be assigned. Id. at 5.
- Therefore, DTPA claims are personal in nature and thus abate upon the death of the aggrieved consumer. Id. at 5.