The implied warranty of good and workmanlike performance of services generally applies to the repair and modification of existing tangible goods. It is a common law warranty that was first recognized by the Texas Supreme court in Melody Home Mfg. v. Barnes, 741 S.W. 2d. 349 (Tex. 1987).
To prove a cause of action for breach of the implied warranty of good and workmanlike services, the plaintiff must establish that the defendant sold repair or modification services to the plaintiff’s existing tangible goods or property. A “repair” is the restoration of something by replacing a part or fixing what is broken. A ‘modification” includes any change or alteration that introduces new elements into the details of the subject matter or cancels some of them, but leaves the general purpose and effect of the subject matter intact.
The implied warranty of good and workmanlike services does not apply to professional services, certain services relative to helicopter maintenance, the future development services of a real estate developer among others.
“Good and workmanlike manner” means the quality of work performed by a person who has the knowledge, training, or experience necessary for the successful practice of a trade or occupation and preformed in a manner generally considered proficient by those capable of judging such work. The focus is not on the result of the work, but the manner in which the work was performed. The warranty does not require that workers guarantee the results of their work. Even a repeated failure to repair, standing alone, may not be sufficient to prove that the work was not done in a workmanlike manner. However, the implied warranty of good and workmanlike services cannot be disclaimed by contract.
Many times claims for breach of the implied warranty of good and workmanlike services are brought under the Texas Deceptive Trade Practices Act (DTPA) because the elements of a claim for breach of the implied warranty of good and workmanlike services are similar to the elements of a DTPA claim brought under the same facts. However, a plaintiff bringing a claim for the breach of the implied warranty of good and workmanlike services under the DTPA must also prove that the plaintiff is a “consumer” as defined in the DTPA.
To recover on a claim for breach of the implied warranty of good and workmanlike services, the plaintiff must establish it suffered an injury. Injury typically includes direct damages consisting of the difference between the value of the services accepted and the value of the services if they had been as warranted, as well as, incidental or consequential damages. Incidental damages include expenses reasonably incurred incident to the breach. Consequential damages include any loss resulting from the particular requirements of the plaintiff that were known to the defendant at the time of contracting or other injury to person or property proximately resulting from the breach. In addition to damages, a successful plaintiff can also recover attorneys fees.
The statute of limitations for an action for breach of the implied warranty of good and workmanlike services is two years if it is brought under the provisions of the DTPA. Otherwise the four-year statute of limitation applies to breach of the implied warranty of good and workmanlike services actions that arise in connection with contracts. The statute of limitations begins to accrue when the plaintiff suffers some legal injury. There is also a question as to whether the discovery rule applies to actions for breach of the implied warranty of good and workmanlike services. See Baleares Link Express v. G.E. Engine Services, 335 S.W. 3d. 833 (Tex. App. – Dallas 2011, no pet.).
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