Transport Ins. Co. v. Faircloth

In Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 273-74 (Tex. 1995), the Court stated that DTPA section 17.46(b)(23), as incorporated in Article 21.21, requires consumer status. Faircloth, 898 S.W.2d at 274. DTPA section 17.46(b)(23) creates a cause of action for "the failure to disclose information concerning goods or services . . . intended to induce the consumer into a transaction." TEX. BUS. & COM. CODE 17.46(b)(23). The Court held that DTPA section 17.46(b)(23) requires consumer status by its terms because it explicitly arises out of a "consumer" transaction, and because it creates a cause of action for the failure to disclose information concerning "goods or services." See Faircloth, 898 S.W.2d at 273. The Court stated that "goods" and "services," as defined under the DTPA, must be "purchased or leased for use" by the party seeking to state a cause of action. Faircloth, 898 S.W.2d at 274. For example, although the plaintiff in Faircloth brought suit to recover on a policy to which she was not a party (the policy being a "good or service" to the insured), we held that third parties negotiating a policy settlement "do not seek to purchase or lease any of the services of the insurer." Id. Because the policy was not a "good or service" to the nonconsumer plaintiff, she did not have standing. Applying Faircloth's reasoning to all DTPA claims based on Article 21.21, Casteel must be a consumer to state a cause of action under Article 21.21 for the violation of a DTPA subsection if the subsection either: (1) specifically involves a consumer transaction, or (2) involves the misrepresentation of "goods or services" acquired by the plaintiff. Faircloth, 898 S.W.2d at 273-74; see Webb, 909 S.W.2d at 228 (rejecting nonconsumer's Article 21.21 claim for violation of DTPA section 17.46(b)(5) because plaintiff did not acquire "goods or services").