*1 explained, have For the reasons we of the court of is reversed it against extent Ri- allows N., judgment
cardo is rendered that Turcios N., nothing against take Ricardo and in all respects judgment of other the court of appeals is affirmed. LIFE
STATE FARM INSURANCE Heaton, Ted H. COMPANY and Petitioners, III, BEASTON, Respondent. No. D-4454. Supreme Court of Texas.
Argued May 29, 1995. Delivered June Rehearing Overruled Oct. *2 268, and render appeals,
court of nothing. plaintiff take judgment that
I bought Beaston Terri and David Heaton, a policies from Ted
life insurance Company agent. Life Insurance pay premium on failed to The Beastons 28, 1988. policy due on December David’s 28, 1988, policy lapsed His as of December day grace period expired thirty-one and the days January 1984. Three after on grace period, David died in expiration of the Farm refused an automobile accident. State under his life insurance the benefits policy, claiming coverage expired had before his death. beneficiary
As the sole of her husband’s policy, Terri graded premium whole life brought against both Farm and suit claims, Heaton, asserting, among other 21.21. also had violated Article She policy guar- that the terms of the contended payment of a dividend at death which anteed part of the used to should have been thereby premium that was in arrears and policy’s lapse. “cure” the jury. to a At the close The case was tried evidence, granted an the trial court Larry Meroney, Black G. and Ranelle M. in Terri’s favor on the instructed verdict Austin, petitioners. coverage, finding was issue of Kincaid, ambiguous construing provide it to Longley Mark L. Joe K. and Phil- Maxwell, Austin, sufficient to ip respondent. K. dividends that “would have been (The lapse.” basis of the
avoid the asserted OWEN, Justice, opinion delivered the judg- ruling forth in its trial court’s is set GONZALEZ, HECHT, ment.) the Court in which CORNYN, ENOCH, Justices, join. Terri to the Issues were submitted PHILLIPS, Justice, SPECTOR, Chief Beaston’s other claims. The
Justice, III, IV, join in Parts and V. engaged in unfair or de- the defendants had interpret ceptive and that such conduct was are called the terms acts
We
damages to
Bea-
producing cause of
of a life insurance
and to decide
however,
find,
jury failed to
plaintiff
can recover mental an-
ston. The
whether
(1)
engaged
had
company
Farm or Heaton
guish
from an insurance
false,
deceptive
any
misleading, or
act
21.21 of the Texas
for a violation Article
(2)
engaged
any
finding
practice,
had
unconsciona-
absent a
Insurance Code
(3)
action,
negli-
course of
knowingly. Because we ble action or
defendant acted
(4)
negligent. There
gent,
grossly
plaintiff is not entitled to bene-
hold that the
Farm had not
that State
policy and that a was
fits under her husband’s
any
policy.
An issue
lapse under
conduct is
to waived
had
Farm or Heaton
anguish damages under Arti-
as to whether State
recover mental
knowingly engaged in
unconscionable
judgment of the
cle
we reverse the
(which
“recovery”
in attor-
conduct was conditioned on
affirmative
result
$284,780.87
response
that asked whether
ney’s fees of
as calculated
Beaston)
engaged
either defendant had
“in
uncon-
opposed
only forty percent of
scionable action or course of action that was
damages, including penalty
and interest.
*3
producing
cause
to Terri Bea-
judg-
appeals
The court of
reversed the
jury responded negative-
ston.” Because the
court, holding
ment of the trial
that Terri
ly,
question asking
it did not reach the
Beaston was not
to obtain a
engaged in
whether
the defendants had
finding
agent had
that State Farm or its
objection
conduct. No
was made to
prereq-
knowingly violated Article 21.21 as a
the conditional submission.
recovery
anguish
of mental
uisite
issue,
response
damage
to the
damages.
at 275. The court of
benefits,
awarded no
but awarded
$200,-
jury’s
appeals reinstated the
award of
$200,000
anguish
past.
for mental
in the
000 in mental
and conclud-
attorney’s
jury was asked to and did award
trebling
of those
ed
percentage
fees as a
of Terri Beaston’s re-
21.21,
mandatory under former Article
covery,
forty percent
finding that
was a rea-
governed this case.1 The court affirmed the
fee,
percentages if
sonable
with increased
benefits, prejudgment
award of
inter-
appealed
appeals
case were
to the court of
est,
delay
twelve-percent
penalty,2
and a
but
and to this Court.
judgment
of the
increased the amount
judgment
trial court rendered
in Terri
attorney’s
prejudgment
include
interest and
favor, awarding
the face amount of
on
Beaston’s increased re-
fees based
($250,000),
prejudg-
benefits
covery.
modified
The court of
also
($147,171).
statutory delay
A
ment interest
attorney’s fees
the manner in which
penalty
percent
in the amount of twelve
calculated, rejecting the trial court’s method
($30,000)
pursuant
was added
to Article 3.62
by
proffered
Beaston.
in favor of the method
Code,
of the Texas Insurance
for a total of
appeals held that “the contin-
The court of
$427,171,
forty percent of that
total
gency
percentage should be calculated on
fee
($170,868.40)
was included in the
not on the total dam-
the total
attorney’s
The trial court stated in its
fees.
(emphasis
origi-
ages.”
therefore anguish damages, tal and the calculation awarded, jury’s answer to not be and the attorney’s fees. 8(b) Question [concerning damages] disregarded.” trial will be II additionally to treble the actual refused undisputed that attorney’s Although it is her damages and refused to award lapsed husband’s would have otherwise fees based on a calculation Terri Bea- Terri claims that the equal forty percent of on December ston contended was 1, 1991, September provided Article 3.62 of the the former Article 21.21 2. Prior to 1. Section part: provided in relevant Texas Insurance Code plaintiff prevails may “any ... who obtain damages....” loss occurs and the life In all cases where a three times the amount of actual R.S., company shall fail ... liable therefor insurance May Leg., ch. Act of 63rd days thirty de- the same within after 322, 338, 2(c), § 1973 Tex.Gen.Laws amended therefor, company liable to such shall be mand pay R.S., 22, 3, 4, 1985, April Leg., § ch. Act of 69th policy, addition to the the holder of such Article 21.21 1985 Tex.Gen.Laws loss, percent damages twelve amount of the however, provides, prevailing presendy that a the amount of such loss.... damages only plaintiff if the can recover treble R.S., 27, 1931, April Leg., 42nd ch. Act of § knowingly finds that the defendant “trier fact 135, 135, repealed Act Tex.Gen.Laws 6, 1991, plaintiff com- committed the acts" of which R.S., Leg., 72nd ch. of June 16(b)(1). § plains. Tex.Ins.Code art. 12.01(2), 1991 Tex.Gen.Laws appeals affirmed. 861 S.W.2d at policy remained in force because of its divi- court of provision. policy pro- dend-at-death 276-77. vides, part: in relevant disagree. explained As we We Nonpayment of Premium. If a Insurance Forbau v. Aetna Life paid by grace end of its has been (Tex.1994), interpretation of S.W.2d 132 period, Lapse to Avoid Accumulations governed by contracts is the same and, chosen, the Automatic Premium applicable to con rules of construction other provisions apply. Loan will If neither of omitted). (citations tracts. Id. at 133 When provisions apply, these will contract, construing a courts must strive to lapse as of the due date of amount of give expression to the written effect lapse, unpaid premium. With such all cov- (citations omitted). parties’ intent. Id. To *4 erage ceases.... so, they parts all of a contract do must read Lapse. pre- If a Accumulations Avoid (citations omitted). Indeed, together. Id. paid by mium has not been the end of its particularly wary isolating courts must grace period, any dividend accu- available surroundings considering apart from its pay part mulations will be used to all or provisions single phrase, from other a sen premium.... tence, of a contract. id. at or section See Adjustment Premium Insured When omitted). (citations Only if 133-34 an insur If during grace Dies. the Insured dies a policy ambiguous despite these ance remains any period, part premium due will be interpretation canons of should courts con paid proceeds.... from the language against strue its the insurer in a may Annual Dividends. State Farm Life See, e.g., coverage. manner that favors Na apportion pay year. dividends each tional Fire Ins. Co. v. Hudson Ener Union Any such paid dividends will be at the end Co., (Tex.1991); gy policy year premiums of the if all due have Blaylock v. American Guar. Bank Liab. Ins. paid.... been Co., (Tex.1982); Ramsay Options. may Dividend The Owner Maryland Am. Gen. Ins. options choose one of the listed below.... 344, 349 3. Dividend Accumulation. Left ac- interprets policy Terri Beaston David’s plus cumulate- Accumulations inter- pay pro-rated mean that State Farm would part est to the Insured’s death will be death, regardless dividend at his of how proceeds. many premium payments had been missed or Dividend at Death. A dividend for the policy whether the was inside or outside its period policy year from the start of the grace period following nonpayment part the Insured’s death will be of the However, in premium. recognized as we proceeds. Forbau: undisputed It is that David had not accu- every interpretation difference [ N]ot any following year
mulated
dividend
the first
policy
or an insurance
contract
policy
of the
or that he died before its second
ambiguity.
an
Both the in
amounts to
anniversary.
argues
likely
sured and the insurer are
to take
terms of David’s
make clear
conflicting
coverage,
views of
but neither
payment
any
contingent
dividend is
on the
conflicting expectations
disputation is
nor
payment
premiums
insured’s
of all
due.
ambiguity.
sufficient to create
paid
premium
Since David had not
the last
(citations omitted)
Forbau,
rated dividend awarding in of erred only that dividend for provision “[a] states damages anguish under Beaston for mental year period policy the the from the start of argues in Farm the Article 21.21. State pro- part will be the Insured’s death of (1) there is no evidence alternative that added). pay- (Emphasis But the ceeds.” it violated jury’s finding that support is contin- proceeds ment of under (2) 21.21; no evidence to there is Article timely payment of gent upon the insured’s finding regarding support jury’s mental policy’s nonpayment- premiums. Under the (3) damages damages; or for emo anguish not of-premium provision, premium if a has because tional distress are not recoverable grace period, the paid the end of the been jury finding that to secure a Terri failed lapse due date of “policy will as knowingly. Farm acted unpaid premium,” unless the accu- amount of remedy those provides 21.21 a Article mulations-to-avoid-lapse provision or the au- (1) compe- injured by any “unfair methods applies. premium provision loan tomatic above, accumulations-to- pays As discussed at the end of 5. When State Farm a dividend 3. apply policy year, avoid-lapse provision the insured not does a (1) options. use the He or she can with four The au- dividend accumulations. there were no (2) payment premium; dividend toward apply provision premium does tomatic loan paid-up purchase insur- a life use the dividend up any yet had not built because David’s addition; (3) to accumu- leave the dividend ance value, policy did not have and thus the cash case, (in accumulations the dividend late which value,” provi- required by adequate "loan rate of each at the minimum earn interest 4½% sion. (4) paid year); the dividend in cash. or be is within insured dies while the If the guarantee pay- do not 4. The terms following grace period the non- thirty-one day dividends, by the annual- as evidenced ment of premium, any due is payment aof provision provided that State dividends proceeds. “may apportion dividends each from added.) (Emphasis Because no dividend year." policy, year paid during of David’s the first left to accumulate. there was no dividend 434, 442 prac- ruff, or 901 S.W.2d See deceptive tition and unfair and acts specifically Laycock, in the business of insurance” generally, tices American Rem Modern (2) 21.21, (2d 1994) (discussing in Article defined Section 189-90 re ed. edies distress). practices regulations declared the rules or for emotional strictions meth- Board of unfair Insurance be held a DTPA case mental We have deceptive competition and unfair and ods damages anguish are not recoverable where insurance, practices acts or business resulting no willful conduct and there was (3) the Texas or violations Section 17.46 of Brown, injury. 601 S.W.2d physical Code, Business and Commerce otherwise similarly held in v. Luke John Duncan We Deceptive Practices— known as the Trade (Tex. Ford, Inc., 777, 779 son (“DTPA”).7 Consumer Protection Act See 1980), recovered for cannot be 16(a). art. Tex.Ins.Code must anguish and that there mental alone or found that one both of the defendants tort, gross negligence, proof of a willful engaged deceptive in an unfair act or disregard. Luna v. North willful See also practice. Sales, Inc., Dodge 117- Star Farm contends is no evi- that there (Tex.1984), finding that a where we held support finding. dence to Because were commit that the unconscionable actions only damages were for “knowingly” support mental an ted anguish, we turn Farm’s first for a guish damages, but we remanded deter argument that Terri cannot recover mental sufficiency of the mination of the factual evi in the absence of award, support anguish dence to the mental knowingly. it acted such Whether Kerr, Boyles prerequisite recovering men- (Tex.1993), in dicta where we observed tal Article 21.21 is a under may not be recov impression of first for this Court. proof of ered under the DTPA absent *6 DTPA, Like the 21.21 that Article grossly negligent willful or violation. parties may damages recover their actual against a defendant violated the who has culpable We see no reason that a mental 21.21, provisions. statute’s Tex.Ins.Code art. required to recover state should also 16(b)(1). § Neither DTPA nor Article anguish damages under Article 21.21. damages.” 21.21defines “actual In constru appeals recognized, court of As the term, ing this our that courts have concluded DTPA and Article 21.21 are interrelated. damages” “actual Article available under Legislature 861 at enacted S.W.2d damages DTPA 21.21or the are those recov “part in of a reform both remedies 1973 as common law. erable at Brown v. American legislation.” package of consumer Storage & 939 601 S.W.2d Gros, Farm Fire & Cos. Co. v. 818 S.W.2d Transfer denied, (Tex.), 449 cert. 101 S.Ct. U.S. writ); (Tex.App. no 916 — Austin (1980); L.Ed.2d 474 Frank see also Hall, B. at see also Frank Beach, Inc., B. Hall & Co. v. (noting purposes that the of the statutes are (Tex.App. Corpus writ Christi similar). protect designed — The DTPA to n.r.e.); McPeak, Paul ref 'd St. Ins. Co. v. “false, against misleading, and consumers de (Tex.App. [14th practices, — Houston ceptive business unconscionable ac n.r.e.). writ ref'd Dist.] tions, warranty....” and breaches Tex. § Similarly, 17.44. Article traditionally Courts have been reluctant Bus. & Com.Code in regulate practices 21.21was enacted to recovery for emotional dis allow industry by prohibiting “unfair tress without some additional threshold competition deceptive methods of or unfair or example, an showing, for the mental 21.21, practices.” art. guish accompanied injury acts or physical a Tex.Ins.Code 17.50(a)(4) 1(a). DTPA § in “resulting physical impact or was Section from 21.21, produced by corporates of Article particularly upsetting or dis Section 16 prohibits an insur- turbing Parkway event.” Co. v. Wood Section 16 of Article 21.21 & Com.Code 17.41-17.63. 7. Tex.Bus. §§ engaging any practice proscribed
er from
IV
by Section 17.46 of the DTPA. Tex.Bus. &
Terri Beaston
counters that even
17.50(a)(4);
§
art.
Com.Code
Tex.INS.Code
finding
knowing
required
conduct is
21.21, 16(a);
§
Transport
see also
Ins.
v.Co.
anguish damages
recover mental
under Arti
Faircloth,
case,
cle 21.21
she nevertheless is
prevail
entitled to
Farm
because State
failed
In DTPA
person
eases
do not involve
preserve
complaint
regarding
its
this is
injury,
al
we have
a threshold find
sue. We hold that
Farm
did not waive
ing
culpable
mental state as one of the
point.
error on this
prerequisites
anguish damages.
for mental
See,
Luna,
e.g.,
117-18;
667 S.W.2d at
Dun
21.21,
Tracking
language
of Article
can,
779; Brown,
her award of 16 of fees. Section reasons, applicable pro foregoing version Article 21.21 we reverse For the “any plaintiff prevails may render judgment vides who of the court governs 10. Rule 279 omissions from the the trial court did not render charge part: respect distress. in relevant for emotional ground When a defense consists fee-shifting language current ver- 12. The element, one of more than if one or more of *8 essentially is same. It sion of Article 21.21 the necessary elements such to sustain such “any plaintiff may prevails who defense, necessarily ground of and or damages plus ... the amount actual obtain of thereto, referable are to and found submitted necessary attor- court costs and reasonable and jury, by and one the or of such elements more 16(b)(1). § neys’ fees.” Tex.Ins.Code art. request charge, from are omitted the without objection_ may ... ... or the trial court provides: 13. Section 38.001 findings make and file written on such omitted judg- support attorney’s person may element or of the elements recover reasonable A made, findings corporation, ment. If no such written are individual in addi- fees from an or costs, and if such omitted element or elements shall to the amount valid claim tion services; (2) (1) by manner as is for: deemed the court in such the claim rendered material; (4) labor; (3) support judgment. performed the furnished (5) added). (emphasis freight express overcharges; or lost Tex.R.Civ.P. or (6) freight express; damaged or or in- killed stock; account; (8) (7) prin- necessarily disagree jured the 11. We do not sworn dissent, they ciples by of law but oral or written contract. articulated inapplicable under since these circumstances & Rem.Code 38.001. TexCiv.Prac. judgment nothing.14 plaints anguish Terri Beaston take mental element about as an “knowing” of absent Even conduct. PHILLIPS, Justice, Chief delivered a however, issue, “knowing” if one reaches concurring joined dissenting opinion, of applicable the version article 21.21 when SPECTOR, Justice. require the incident occurred did not “know- ing” anguish damages. conduct mental agree respects. I with the Court in most test, however, majority’s Even under many But for of the as same reasons dissent, anguish damages mental if I are recoverable policy believe that the insurance part ambiguous and, would be of common law actual consequently, delay damages, injury affirming of of court was correct in anguish policy coverage death of judgment trial court’s over for the that State owed proceeds analogous is policy Terri of the as a her husband most to common matter allowing of law. law actions mental recov- majority ery. misapplies own test. The its Therefore, my I to Part II note dissent of majority wrong I believe Because is opinion concerning policy, Court’s issue, I each dissent. III, IV, joining in while Parts and V of the opinion concerning Court’s error,
damages, preservation and attor- I. ney’s judgment fees. I would render Beaston is First consider whether Mrs. benefits, only recover policy statu- any proceeds her entitled to recover from fees, tory attorney’s and costs. policy. Although life it husband’s insurance undisputed, is based the issue date GAMMAGE, Justice, joined by face, policy its shown on that her husband’s HIGHTOWER, Justice, dissenting. nonpayment expired had majority procedural overlooks waiver died, argues when he Mrs. Beaston a con- statutory defendants order to reach keeps struction of the it force issues, In- construction rewrites DTPA and of its provision. dividend-at-death ways surance Code article 21.21 law in never provides, part: in relevant before, misapplies then its conceived own Lapse. pre- If a Accumulations Avoid rule. The had new found she suffered paid by mium has not been the end its practices. from unfair insurance grace period, any will be available dividend appeals strug- trial court court part premi- all used to of that gled with the much of how she um .... ambig- should recover. The at issue may Dividends. Life Annual uous, historically as we have used the term year. apportion and dividends each “ambiguity” policies. The trial Any such dividends will be end correctly rendered on an in- policy year premiums due have all structed verdict for for the Beaston paid.... been And, undisputed amount based on the facts. Dividend at Death. A for the dividend recovery, practice unfair insurance de- period year from, the start object jury charge, fendants failed to part death the insured’s will be segregated neither nor conditioned proceeds. on an issue addi- added.) (Emphasis “knowing” tional Defen- object improp- parties dispute to an do not that Mr. Beaston dants preserve following erly conditioned had not accumulated dividend *9 error, policy their of he died year their failure waived eom- the first the or that Consequendy, question we do not reach the of used the court of in this case. Nor do attorney's point properly regarding the calcu Terri’s the whether fees were we reach of error lated, appeals’ but note that in Great American Insurance refusal to the award of of treble Company Utility policy point Municipal v. North Austin Dis or State Farm’s of error benefits -1, (Tex.1995), trebling pre- appeals' regarding we ex the court of trict No. S.W.2d of - disapproved pressly of interest. of the method calculation
439 unpaid pro-rata premium. his Under anniversary. The court before its second concedes, construction, the the as State Farm accepts argument Farm’s that State pro-rated policy make clear dividend would terms of Mr. Beaston’s amount of such any prevent policy of is contin- payment that the dividend have been sufficient premi- all gent payment on insured’s of lapsing. from Mr. had ums due. Beaston not Since contrary majority its conclu- reaches prior to the policy the last on his avoid through its new-found device to sion grace expiration period, its State Farm of of construction” ambiguity, applying “rules contends, of are unam- the terms Co., Ins. 876 v. Aetna Forbau Life any biguous would receive divi- that he not (Tex.1994). the insurance 132 Unlike S.W.2d his unpaid to cure dend that could used Forbau, however, at issue accepts reading premium. The court thus that, any provision contain here does not to the insurance of contract favorable event, to an resolves with external reference company, prop- This is not it. drafted majority It that the ambiguity. appears its er. overruling all our interprets now Forbau as policy provi- held trial court that these although in ambiguity precedents, reasonably that sions could be taken mean majority Forbau the claimed otherwise. pay State Farm would Mr. Beaston a divi- gymnastics ambiguity utilized conclude death, regardless arrearag- at his dend his reading at amount to ambiguous, not bottom es, appeals agreed and the court of with that provision into the that is not there contract analysis. at 277. The dividend- 861 S.W.2d provide that all dividends and accumula- unconditionally at-death clause states that payable lapse, upon tions are not after a even pay a pro-rated State Farm will dividend to death, which occurrence the states at Mr. his The aecumu- Beaston demise. Therefore, expressly they payable. no lations-to-avoid-lapse provision states with ambiguity! equal certainty Farm will State use part in- such dividend to all or II. unpaid premiums. sured’s Farm State was dealing Assuming rules our traditional aware of the discretion- difference between ambiguities in were insurance contracts ary contingent mandatory clauses and applied construed clause, provisions. The annual-dividend favor, Farm and State Heaton example, says “may” pay divi- complaint anguish” “mental waived their year. dends each State Farm’s choice to not “knowingly” finding. damages required a payment make at a dividend death jury’s question affirmative expressly contingent timely on insured’s violation, one, a article one general 21.21 payment premiums ambiguity an created which if the answered five conditions policy susceptible that leaves the to two rea- one, “Yes” to an- interpretations. sonable That makes the lan- damages question. swer the guage “ambiguous” and the court should con- objection damages made it against strue in a insurer manner gen- improperly conditioned because the coverage. See v. favors Balderama Western liability question, possi- 21.21 eral article Co., Casualty Ins. S.W.2d Life bly questions requir- some of the other four (Tex.1991); National Fire Ins. v. Union Co. damages, ing jury to answer Co., Energy Hudson finding. require “knowing” also Neither Co., (Tex.1991); v. Barnett Aetna Ins. Life object did State Farm (Tex.1987); Blaylock v. wrong measure Co., used Liab. American Guarantee Bank Ins. im- the mental element was (Tex.1982); Ramsay “knowing” finding. proper express absent Maryland Am. Gen. Ins. object to And Farm did the dam- against Construed Farm, ages an ele- question because it contained policy provides that Mr. Beaston’s sup- ment pro-rata State Farm would him a divi- —not —mental liability pre- theories apply ported by some dend and would dividend death *10 440 (no violation). sented “knowing” objec- 1965, n.r.e.). No Houston [1st Dist.] writ ref'd appears tion in the record which give object The failure to damages
the trial court opposing or counsel notice of improper includes elements or is based on complaint anguish about mental as an wrong damages measure of waives error damages. element of as to the form and substance of damages Chevrolet, issue. See Tom Benson Inc. v. expressly provides Rule 272 parties that all Alvarado, (Tex. 815, 636 S.W.2d 822-23 adequate must have opportunity to review App. 1982, n.r.e.); Antonio writ ref'd — San object charge, defects in the Traylor (Tex. Gray, 644, v. 547 S.W.2d 658 objections presented “[a]ll not so shall be 1977, Civ.App. Corpus Christi writ ref'd considered — as waived.” Tex.R.Civ.P. n.r.e.); Properties, McCreless Ltd. v. F.W. Rule 274 contains provi additional waiver Co., (Tex.Civ. 863, Woolworth 533 S.W.2d 867 sions. This court long has held that Rule App. 1976, n.r.e.). Antonio writ ref'd 272, — San independent 274, with or of Rule is a provision broad waiver defeating complaints majority reaching errs even jury about what the found or the form or “knowingly” issue because State Farm failed substance of questions. Cogburn v. object thereby any complaint waived Harbour, 432, (Tex.1983); 657 S.W.2d 432 anguish that the mental damages element of (Tex. Strong, 979, Edwards v. 213 S.W.2d 981 had to be required conditioned 1948); King, 957, Wilson v. 311 S.W.2d 958-59 finding ( Tex.Civ.App. ref'd). writ — Austin particular, expressly we have approved III. the statement of the given reason for the rule majority asserts DTPA “[i]n in Wilson: cases personal that do not injury, involve we purpose requiring Rules have threshold culpa- party except charge give is to ble mental state as one of prerequisites Trial opportunity Court an correct anguish for mental damages.” 907 S.W.2d at errors, to the end may that the ease cases, 436. This point misses the of those submitted, fairly and all defects anguish that mental damages are recoverable manner of special submission of issues only if proved the DTPA violation is analo- by failing waived except thereto. gous to a common allowing law action recov- [Citations omitted.] ery of such mental damages. This court has held that mental Id. at 959. is a com- Here neither the trial court nor mon law element of in large counsel had vari- opportunity ety of circumstances change physical not limited to the conditional submission structure injury culpable mental charge, the court’s state. Here objection Insurance Code violation made no before the verdict. This is closely analogous to precisely instances where what Rules 272 274 are intend- common law allows prevent. anguish recovery, ed to purpose because a central of the interest object The failure to to the conditional protected by the Code is to avoid mental submission of the issue waives error beneficiary. harm to the as to form and substance the submission. Bond, Wilgus (Tex. v. DTPA, S.W.2d Under the the term “actual dam 1987); Builders, Matthews v. ages” Candlewood means those that are recover Inc., (Tex.1985); 685 S.W.2d Strauss able under the common law. Brown v. LaMark, (Tex.1963); v. 366 S.W.2d Co., Storage American & Transfer AAA Conditioning Air Mfg. Corp. & Tex. Article 21.21 Barr, (Tex.Civ. 826-27 likewise for the of “actual App. ref'd); Republic writ damages.” The threshold is wheth — Dallas Bankers Coffey, Ins. Co. v. er mental appropriate Life (Tex.Civ.App. writ under the common law for the actionable — Amarillo n.r.e.); ref'd Bell v. Aetna Cas. & Sur. jury. Only conduct found (Tex.Civ.App.— anguish 833-34 is not a common law element of *11 agent promised who allowing Heaton was the exceptions look Ted
damages must we
to
proof of
of the Beastons’
anguish damages, such as
to take care
See,
grossly negligent
did not have
clear
willful
The Beastons
needs.
Sales, Inc.,
Dodge
e.g., Luna v. North
between
understanding
Star
of the difference
(Tex.1984);
life;
v. Luke
Duncan
they
did not realize that
term and whole
(Tex.
Ford, Inc.,
Johnson
the same
expensive
less
for
term was much
1980).
coverage.
suggested
could have
Heaton
policies for the
exchange
whole life
their
jury
engaged
Farm
in
found State
term,
he
he
but
admitted
more affordable
prohibited by
deceptive
unfair and
acts
arti
possibility to
suggested the
them.
never even
jury
21.21. The
further
found mental
cle
prob-
financial
Heaton knew the Beastons’
decep
anguish damages from the unfair and
He
fre-
began in June 1983.
was
lems
deceptive
acts. The “unfair and
acts”
tive
their
late
quent contact with them about
question
If
was a broad submission.
there
premium payments. He
that Terri
knew
specific
conduct for
evidence
some
keeping
“adamant” about
the
Beaston was
are recovera
which mental
policies in
Terri was the one who
supported
finding,1
the court
force.
ble
broad
policies
appeals’
jury
payments
on the
whenever
rendition of
made
both
could,
doing
verdict must be affirmed. Prudential
Ins.
and Heaton knew she was
she
Assocs.,
pay
premiums.
160 everything
Co. v.
she could to
the
Jefferson
(Tex.1995); Brown v. American
&
Transfer
evidence that Heaton’s failure
There was
(Tex.
Storage
937-38
suggest
option
to
the term
was an unfair
1980).
practice
article 21.21.
Farm’s
under
favorably
considered
to Terri
evidence
training
own
manual informed Heaton that
Beaston,
for whom the
answered the
young couples
for
term was suitable
who
affirmatively,
supports
broad
purchase
whole life.
lacked
means
Heaton,
conclusion that
Farm’s
pro-
manual
that term insurance
states
agent acting
capacity
to deceive the
policyholder
good protection
vides
until
consumer,
average
suggest changing
faded
testimony
can afford whole life. The
from whole life to term
The cir-
insurance.
died,
up
day David
that from
mid-1983
objec-
known
cumstances
to Heaton would
description
people
fit
the Beastons
tively make one realize that his failure to
suited,
term insurance was well
whom
option
make known the term life
would cause
it. Heaton admitted
he
Heaton knew
emotional distress
Terri Beaston while the
normally
advise someone of this choice
couple struggled
pay
higher
whole life
life,
between term and whole
but did
do
Moreover,
premiums.
in the event of David
so in this
Terri Beaston testified that
case.
death,
purported lapse
cov-
choice,
given
have
If
she would
switched.
erage
nonpayment
higher
because
had switched
the Beastons
premium would
emotional distress as-
cause
policies
term conversion
three
his
sociated with
death. Heaton
in-
offered,
they actually paid
premiums
heightened
Terri would suffer
emo-
formed
been more than
whole life would have
with his death be-
tional distress associated
coverage through
sufficient
term
losing his
cause of the financial strain of
date of David’s death.
income, something
abnormally feared.
she
given
option,
offer
term
The failure to
There
that Terri had an ex-
was evidence
circumstances,
surrounding
is most anal-
being
credi-
aggerated fear
unable
recognize
ogous
emotional
to torts which
David’s
tors
the event of
death.
damages,
harm as an
of common law
element
young couple had
life insurance
be-
emotional harm is the natural result
prob- because
lapse
let it
of financial
fore but
with the
lems,
wrongful
of such
conduct associated
great
which caused Terri
distress. She
family
spouse
member. This
death
that David obtain new life insurance
insisted
early recognized
principle in
coverage.
course,
Consistent,
flndmgs.
express
with the other
*12
Stuart v.
Telegram
Western Union
surely
18 would
result if
negligently
one
lost the
(Tex.1885),
S.W.
353
in which the court
family
remains of a
member.
In Moore v.
refused to limit the
fifty Lillebo,
to the
wrongful
death was the result of
cents
telegram
for the
sent but not
negligence.
“knowing”
What was
was that
delivered to
family
inform that a
member
emotional harm
negli-
would result from such
dying.
The court instead allowed the
gence. We said that emotional reaction is
$2,500
injury damages
emotional
by-product
death,
the natural
wrongful
jury, stating
wrongdoer
“[t]he
knows
“destroys any
that it
pre-existing family rela-
doing
he is
damage
when he afflicts the
tionship,”
wrongful
and that for
death emo-
by withholding
mind
message
of mortal
usually
tional harm is
“principal
element”
injury
illness ...
feelings
is actual
surviving
relatives. Moore v.
damage ...
wrong-
natural result of the
Lillebo,
deliver the negli- was committed gently, knowingly. “knowing” What was was that the emotional harm would follow if done,
the act was not whether the omission negligent Likewise, itself was knowing. Classen the reinterment of the bodies into cemetery performed negligent- new ly, resulting body. in the loss of a What was
“knowing”
was that
emotional
jurisdictions
Asso.,
recognizing
“wrongful
those
App.Div.2d
v. Planned Parenthood
conception”
action,
“wrongful pregnancy”
(2d
1984);
Gore,
cause of
Dept.