DTPA – “Intentional” Conduct

Palo Pinto attorneys need to know how to use the Texas Deceptive Trade Practices Act (DTPA) to help them with their claims for Texas Insurance Code violations.
The Texas Business & Commerce Code, Section 17.50(b)(1), allows the jury in this type of case to award up to three times the amount of mental anguish damages and economic damages when they find the defendant acted “intentionally.”
Proving intentional conduct imposes a slightly higher burden than does proving knowing misconduct. The key difference is that “intentionally” requires proof that the defendant intended that the consumer act in detrimental reliance.
Section 17.45(13) states:
“Intentionally” means actual awareness of the falsity, deception, or unfairness of the act or practice, or the condition, defect, or failure constituting a breach of warranty giving rise to the consumer’s claim, coupled with the specific intent that the consumer act in detrimental reliance on the falsity or deception or in detrimental ignorance of the unfairness. Intention may be inferred from objective manifestations that indicate that the person acted intentionally or from facts showing that a defendant acted with flagrant disregard of prudent and fair business practices to the extent that the defendant should be treated as having acted intentionally.
Something for attorneys to keep in mind at this point is that the complexity of the DTPA provision is a good reason to use the Texas Insurance Code, Chapter 541 every time that it is possible. Under the statute there, Section 541.152(b), misconduct allows recovery of up to three times all the plaintiff’s damages.
Another thought for an attorney to be aware of is that it may be confusing to a jury for the plaintiff to ask if a violation occurred, if the conduct was knowing, and if the conduct was intentional, followed by separate conditional damages issues for economic damages, mental anguish, and two additional damages questions. A simpler way, when the plaintiff seeks mental anguish damages and additional damages, is to ask if the defendant acted intentionally, but omit the question on knowingly, and have only one question for additional damages. The intent question imposes a slightly higher burden on the plaintiff, but may be offset by avoiding confusion. An affirmative answer to the intent question will then allow recovery of additional damages up to three times the amounts of economic damages and mental anguish damages.
When it comes to the trebling of damages, prejudgment interest may not be included in the amount that is trebled nor may attorney fees and court costs be included in the amount that is trebled. This is specifically stated in DTPA, Section 17.50(e).