Articles Posted in Deceptive Trade Practices Act

Dallas area insurance attorneys need to be aware of the opinion issued by the Houston Court of Appeals, First District of Texas, in August of 2013. The style of this case is Houstoun, et al v. Escalante’s Comida Fina, Inc.

Here is some background information.

Between 2003 and 2008, Escalante’s owned and operated four restaurants in the Houston area. Between 2003 and 2006 the property and casualty insurance policy on the restaurants was through Ohio Casualty Group, which provided coverage, with certain exceptions, in the event of loss of business income caused by an off-premises power or utilities outage. After Hurricane Rita hit Houston in 2005, Escalante’s claimed against the policy and Ohio Casualty paid.

Tarrant County insurance attorneys should know about pre-suit notice requirements. But for those who don’t, here is some information to keep in mind.

Both the Deceptive Trade Practices Act (DTPA), Section 17.505 and the Insurance Code, Section 541.154 require a 60 day pre-suit notice be given. There are specific requirements of the notice letter. It must state the consumer’s specific complaint in reasonable detail and the amount of economic damages, mental anguish damages, and expenses, including attorney’s fees. A good lawyer is going to require their client to write out in detail what happened and to write out in detail the loss that has been incurred and how the total dollar amount was calculated. This detailed account by the client prevents misunderstanding by the attorney and prevents something being forgotten by the attorney. Based on what the client has provided to the attorney, the attorney can then compare the acts or non-acts to the applicable statutes and do the “legal” part of the pre-suit notice letter.

It is important for the letter to be sent certified mail as required by the statute. Vocal or oral notice is not sufficient, nor is the fact they may already know what they did wrong, good enough.

Johnson County insurance attorneys need to know how to use the Texas Deceptive Trade Practices Act (DTPA) to help their insurance clients. Here is some information that may be helpful.

The Texas Business & Commerce Code, Section 17.565, states clearly that the DTPA has a two year statute of limitations. This statute requires that suit “must be commenced within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice.” Also, this limitations period “may be extended for a period of 180 days if the plaintiff proves that the failure to timely commence the action was caused by the defendant’s knowingly engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone the commencement of the action.”

The only thing tricky about the above limitations is where it talks about using reasonable diligence to discover the wrong or wrongs that may have been committed. Sometimes this can be confusing.

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.

Texas insurance lawyers need to be know how to use the Texas Deceptive Trade Practices Act (DTPA) to help their clients.

Part of using the DTPA properly is to know when conduct by a company arises to the DTPA legal definition of “knowing.” Here is why. The Texas Business & Commerce Code, Section 17.50(b), tells us that mental anguish damages can be recovered under the DTPA when a “knowing” violation is shown. This is affirmed in Texas case law by the Texas Supreme Court in a 1993 case, and again in a 1995 case.

Section 17.45(9) tells us that “knowingly” means actual awareness, at the time of the act or practice complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim or, in an action brought under subdivision (2) of subsection (a) of Section 17.50, actual awareness of the act, practice, condition, defect, or failure constituting the breach of warranty, but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.

Fort Worth insurance lawyers will have potential clients come in their doors complaining of being done wrong by an insurance company. One of the ways to help a client make a recovery in their case, besides the Texas Insurance Code, is the Texas Deceptive Trade Practices Act (DTPA).

The DTPA does not limit who may be sued except for one seldom used media exception found in Section 17.49. Instead, the right to sue depends on whether the plaintiff qualifies as a “consumer” under the DTPA. This is established with respect to the underlying transaction. Once it is shown that the plaintiff sought or acquired goods or services by purchase or lease, the plaintiff is a “consumer” as to all persons involved in the transaction. This is told to us by the DTPA and in case law. The case law is from the Texas Supreme Court case, Cameron v. Terrell & Garrett, Inc., a 1981 case.

There is a long line a Texas appeals court cases that say privity of contract is not required to be classified as a consumer.

Dallas insurance lawyers know the ways the Texas Insurance Code and the Texas Deceptive Trade Practices Act (DTPA) interact with each other and how to use both to help clients who are being jerked around by an insurance company.

Texas Insurance Code, Section 541.151, says that a person who sustains damages by someone engaging in the business of insurance can bring an action against that other person for any act specifically enumerated in Section 17.46(b) of the Texas DTPA.

The DTPA provides a cause of action for conduct defined in the “laundry list” of Section 17.46(b). The most useful prohibitions for insurance cases found in the subparagraphs to this provision are:

A Fort Worth insurance attorney will want to know about specific cases and the way the courts handled the cases. Here is an example of a case that is not seen very often.

The style of the case is, Bekins Moving & Storage Co. v. Williams. This is a Texarkana Court of Appeals case. The opinion was issued in 1997.

Here is some of the relevant information:

Here is some information that all Dallas and Fort Worth insurance lawyers should know.

The Texas Insurance Code sections and Deceptive Trade Practices Act(DTPA) were adopted together by the Texas Legislature in the 1970’s as part of a reform legislation package. They are interrelated and incorporate each other.

Texas Insurance Code, Section 541.008 tells us the provisions of the Code are to be liberally construed and applied to promote its underlying purposes to define and prohibit unfair and deceptive practices in the business of insurance.

Weatherford lawyers and those in Mineral Wells, Springtown, Aledo, Azle, Willow Park, Hudson Oaks, Millsap, Brock and other places in Parker County need to have an understanding of the Texas Deceptive Trade Practices Act.

One part of this Act that most attorneys do not realize is discussed in a case opinion issued by the San Antonio Court of Appeals in the case styled, Texas Farm Bureau Mutual Insurance Co. v. Rogers. Here are some of the relevant facts.

Texas Farm Bureau Mutual Insurance Co. (“Farm Bureau”), appealed from the jury’s verdict and award to Shannan Rogers and Cristen Bazan (“the Heirs”), in a suit involving a homeowner’s insurance policy. The Court reversed and rendered judgment that the Heirs take nothing.

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