60 Day Pre-Suit Notice

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.
When dealing with an insurance company, notice to an insurance agent qualifies as notice to the company according to Texas Common Law and the Texas Civil Practice & Remedies Code, Section 16.071(b).
When the notice letter does not resolve the claim and a lawsuit has to be filed, it is the plaintiff’s burden to plead the pre-suit notice was given as required and this can be done by a specific pleading that statutory notice has been given. Unless the defendant says otherwise, this statement is sufficient. If the defendant does not object within 30 days then complaint is waived.
If the defendant objects to the lack of notice, then the case may be abated until the statutory requirements are met. If notice is still not given, then the court can dismiss the suit.
The Legislative purpose behind the notice is to give the other person a chance to consider tendering a settlement offer. The requirements of a settlement offer are found in DTPA, Section 17.5052 and Insurance Code, Section 541.156. Both the DTPA and Insurance Code explain the effects of the offer on a case that does not settle.
There are a few things to be aware of regarding pre-suit settlement letters.
Some cautious attorneys may choose to file suit first on causes of action that do not require pre-suit notice. Then notice can be given, and the statutory claims can be added later. This way keeps the defendant from responding to a notice letter by filing a preemptive lawsuit. For example, filing an action for declaratory relief in a less favorable venue for the plaintiff.
Whenever a defendant objects to not having received adequate or timely pre-suit notice, it is best to accept an abatement rather than risk some of the adverse consequences that may result from an inadequate notice. The worst situation would be having to re-try a case that had resulted in a favorable outcome. Also, receiving less than full compensation on some elements of damages that are otherwise recoverable are a possibility.
There is a 1992, Texas Supreme Court decision styled, Hines v. Hash, that says Rule 13 sanctions can result and be imposed on the plaintiff who files suit without first giving pre-suit notice.

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