PJC Business

DTPA/I NSURANCE C ODE

PJC 102.21

R. Civ. P. 277; see Thota v. Young , 366 S.W.3d 678, 689 (Tex. 2012) (rule 277’s use of “whenever feasible” mandates broad-form submission in any or every instance in which it is capable of being accomplished). For further discussion, see PJC 116.2 regarding broad-form issues and the Casteel doctrine. Definition of “knowingly.” The definition of “knowingly” comes from DTPA §17.45(9). The definition is different under Tex. Ins. Code §541.002(1). In a suit brought under that statute, the definition should read: “Knowingly” means actual awareness of the falsity, unfairness, or deceptiveness of the act or practice on which a claim for damages is based. Actual awareness may be inferred if objective manifestations indicate that a person acted with actual awareness. Tex. Ins. Code § 541.002(1). Definition and use of “intentionally.” The difference between “knowledge” and “intent” is that under “intent” the defendant specifically intended that the consumer act in detrimental reliance. Compare DTPA §17.45(9), with §17.45(13). A finding that the defendant acted knowingly allows discretionary trebling only of economic dam ages under the DTPA, whereas a finding of intentional conduct allows discretionary trebling of both economic and mental anguish damages. DTPA § 17.50(b)(1). If both economic damages and mental anguish damages are sought, the consumer may choose to submit separate questions on the defendant’s knowledge and intent, or a single ques tion on intent. If the defendant’s intent is submitted, the following definition should be used in addition to, or instead of, the definition of “knowingly”: “Intentionally” means actual awareness of the falsity, deception, or unfairness of the conduct in question or actual awareness of the con duct constituting a failure to comply with a warranty, coupled with the specific intent that the consumer act in detrimental reliance on the falsity or deception [or detrimental ignorance of the unfairness ]. Specific intent may be inferred where objective manifestations indi cate that a person acted intentionally [or may be inferred from facts showing that the person acted with such flagrant disregard of pru dent and fair business practices that the person should be treated as having acted intentionally ]. DTPA § 17.45(13). The bracketed language should be added or substituted to conform to the evidence in the case. See Brown v. American Transfer & Storage Co. , 601 S.W.2d 931, 937 (Tex. 1980). Additional damages for knowing or intentional conduct. See PJC 115.11 for a question on additional damages that may be used if PJC 102.21 is answered “Yes.”

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