§ 147.122.Damages Not Recoverable

The damages caps, available only where the good faith condition is met.

Four categories are restricted.

(1) Barred outright: damages for mental anguish, loss of consortium, or loss of companionship. Those are personal injury heads, and the chapter excludes death and bodily injury claims anyway — so this closes the route of claiming them alongside an economic loss.

(2) Exemplary or punitive damages only where the claimant proves by clear and convincing evidence that the conduct was committed with fraud or malice.

(3) Additional damages under the DTPA — the multiplier for a knowing violation — only where the trier of fact finds fraud or malice. That is a significant limit, since the DTPA was among the most likely vehicles for these claims and its own standard is lower.

(4) Consequential damages, unless reasonably foreseeable.

The fourth is the one that would have mattered most. The anticipated losses were consequential by nature — business interrupted, transactions lost, corrupted data — and a foreseeability requirement is a substantial control on them.

Subsection (b) defines both mental states narrowly. "Fraud" means fraud other than constructive fraud, so the constructive variety will not do. "Malice" means a specific intent by the defendant to cause substantial injury to the claimant — the exemplary damages chapter’s own definition, and a demanding one.

Proving that a software vendor specifically intended to injure a customer was never a realistic prospect.