dissenting.
Because I would hold that the trial court should have submitted a mitigation instruction to the jury, I respectfully dissent.
O’Byme testified that, shortly after he purchased the vehicle, he contacted Gunn and discovered the car had, in fact, sustained damages. Gunn attempted to resolve O’Byme’s dissatisfaction with the vehicle in four different ways: (1) Gunn offered to find O’Byme another black 1993 Infiniti G-20 exactly like the one he had purchased; O’Byme accepted, but Gunn was unable to locate an identical car; (2) Gunn offered O’Byme a red 1993 Infiniti G-20; when O’Byme refused, Gunn offered to paint it and pay him some money; (3) Gunn offered to refund his money minus depreciation; and (4) Gunn offered O’Byme a 1993-1/2 model, a newer car.
There is no doubt that O’Byme did not accept Gunn’s offers, with the exception of the offer of an identical car which, unfortunately, proved to be an impossibility. And, because of his refusal, O’Byme was able to make a claim for damages he would not have otherwise incurred. The issue is whether O’Byme was required to accept Gunn’s offers. In other words, did his refusal to accept entitle Gunn to a jury instruction on the failure to mitigate damages.
It is clear that a DTPA claimant is required to mitigate damages and that the trial court should submit a failure to mitigate instruction when the evidence raises the issue whether the claimant could have avoided some or all of his losses. Pinson v. Red Arrow Freight Lines, Inc., 801 S.W.2d 14, 15 (Tex.App.—Austin 1990, no writ). Further, a claimant is required to mitigate if his damages can be avoided with only slight expense and reasonable effort. Lester v. Logan, 893 S.W.2d 570, 577 (Tex.App.—Corpus Christi 1994), writ denied per curiam, 907 S.W.2d 452 (Tex.1995).
Although recognizing the general rules of mitigation damages, the majority concludes the doctrine of mitigation is not applicable in this case because a duty to mitigate does not include a duty to settle. Under the majority’s holding, the refusal to settle can never *800be considered a failure to mitigate. I would hold, however, that the refusal to settle may be considered a failure to mitigate under certain facts.
The majority cites three cases, relying on two and rejecting the third. The two cases the majority relies upon are not precisely on point, whereas the one case the majority declines to follow is. Crum & Forster, Inc. v. Monsanto Co., 887 S.W.2d 103 (Tex.App.— Texarkana 1994), vacated pursuant to agr., No. 06-92-00100-CV, 1995 WL 273592 (Tex. March 9, 1995) is not instructive because the failure to mitigate the claim was made against a defendant who had incurred attorney’s fees by refusing to settle the case. The court stated “[a] party has a substantial right to defend his lawsuit” and he is not required to sacrifice substantial rights. Id. at 131. The court specifically held that a party who believes he is right has no duty to settle just to avoid attorney’s fees. Id. The case before us does not involve a defendant’s duty to settle to avoid attorney’s fees. Hanna v. Lott, 888 S.W.2d 132 (Tex.App.—Tyler 1994, no writ), is likewise inapplicable. In that ease, the defendant claimed that the evidence established the plaintiff failed to mitigate his damages by failing to accept a settlement offer. Id. at 138. The court did not hold that failure to settle could not amount to failure to mitigate. The trial court was merely unable to conclude that, as a matter of law, an ordinary prudent person would settle when he disagrees with the insurance company regarding the value of his ear. Id. The third case, which the majority rejects, is Guaranty Abstract Co. v. Denman, 209 S.W.2d 213 (Tex.Civ.App.— Texarkana 1948, writ ref d). In Denman, the court held the plaintiff was under no duty to settle because he would be required to sacrifice a substantial right — in this case the defendant owed the plaintiff cash, but offered to pay a portion of it by tendering an unsecured note. Id. at 215. The court further stated, however, that he would have a duty to settle if, by accepting the offer, he would have been made whole. Id. I agree with the court’s reasoning in Denman and would hold that where the defendant’s offer in resolution of a claim makes the claimant substantially whole, the issue of whether the claimant failed to mitigate his damages has been raised and the trial court is obligated to submit a failure to mitigate instruction to the jury.
I further disagree with the majority’s holding that, even if the failure to mitigate includes a duty to settle, Gunn’s offers in this case would not have made O’Byrne whole. The majority concludes that, because it was impossible for Gunn to provide O’Byme with an identical vehicle, O’Byrne could not be made whole except through litigation. If this were the ease, an offer to resolve a dispute involving any one-of-a-kind product could always be rejected and the plaintiff could continue to incur damages even if the offer, if accepted, would make him economically whole. Had a black 1993 Infiniti G-20 been available, Gunn would have provided it to O’Byme and there would have been no further damages and no lawsuit. But O’Byme should not be allowed to insist Gunn perform the impossible while continuing to incur damages merely because he purchased a one-of-a-kind item nor should Gunn be penalized because of it. The fact remains that Gunn was in an impossible position — it was a physical impossibility for Gunn to provide O’Byrne with an identical ear, so they offered alternatives, at least one of which would arguably make him substantially whole because it was economically equivalent to the original vehicle. When O’Byrne refused Gunn’s offers, Gunn was doomed to have the case decided by a jury rather than by negotiation and O’Byme was in a position to increase the value of his claim by continuing to own and drive the vehicle. I believe the trial court’s refusal to include the mitigation instruction was error. I would further hold it was harmful. Perhaps the jury would have found that O’Byme acted reasonably in refusing Gunn’s offers; however, they might also have found O’Byme did not act as an ordinary prudent person would have under the same or similar circumstances. But there was no instruction to the jury allowing them to consider O’Byme’s refusal of Gunn’s offers as a failure to mitigate his damages.
I would reverse and remand for a new trial.