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claim.4 This ambiguity is resolved in the fourth amended
petition, which makes clear that both “plaintiffs”--i.e., CRI and
Mr. Burditt--are asserting claims under the DTPA, and expressly
claims, for the first time, damages for “mental anguish, torment
and heartache”.5 However, the fourth amended petition was struck
by the trial court as untimely, and any reinstatement of this
pleading was speculative. Moreover, it was Lindsey's attorney's
opinion that the fourth amended petition would not be reinstated.
The lack of clarity in the pleadings was reflected in
Lindsey's attorney's understanding of the claims that Lindsey was
defending against. Although Lindsey's attorney acknowledged that
the blowout could have resulted in personal injuries, he
testified that in his opinion petitioner did not have any valid
4 Whereas portions of the second and third amended
petitions carefully distinguish between “CRI” and “Burditt”,
elsewhere the two are referred to collectively as “plaintiffs”.
In addition, the pleadings make occasional reference to
“plaintiff” in the singular, without any indication whether the
reference is to CRI or petitioner. The DTPA claim is one such
instance where “plaintiff” is used in the singular without
clarity as to its referent.
5 We note that sec. 104(a)(2), as applicable to the year at
issue, was not limited to recoveries for “physical” injuries or
sickness, and thus damages for emotional or psychological harms
were eligible for exclusion thereunder. See Commissioner v.
Schleier, 515 U.S. 323 (1995). As amended by the Small Business
Protection Act of 1996, Pub. L. 104-188, sec. 1605(a), 110 Stat.
1755, 1838, current sec. 104(a)(2) limits the exclusion to
damages “on account of personal physical injuries or physical
sickness”. (Emphasis added.)
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