Dallas Fort Worth Insurance Lawyer Blog
Attorneys handling homeowner claims must be aware of the most recent case law regarding the notice provisions of Texas Insurance Code, section 542A. Here is a 2023 opinion from the Northern District of Texas, Amarillo Division, dealing with this issue. The opinion is styled, Toby Brohlin, et al. v. Meridian Security Insurance Company.
Before the Court is Meridian’s Motion to Deny Plaintiff’s Claim for Attorney Fees under Section 542A.007 of the Texas Insurance Code. The Court granted Meridian’s motion. A reading of the opinion gives brief facts and states the law statutes and law on this matter. This writing is the analysis of the law by the Court.
The Brohlins lawsuit implicated the pre-suit notice requirement contained in section 542A.002(a). The Brohlin’s did not provide the pre-suit notice. Thus, the Brohlins are precluded from recovering their attorney fees.
The Brohlin lawsuit asserted claims for breach of contract and violations of the Texas Insurance Code which are causes of action within the purview of Chapter 542A. Therefore the Brohlins were required to give pre-suit notice pursuant to section 542A.003. The Brohlins did not give pre-suit notice.
The facts in the case do not suggest the Brohlins were unable to wait the full 61 days because of limitations period concerns as allowed under 542A.003(d)(1). Nor is there a counterclaim as allowed under 542A.003(d)(2). Neither of the two exceptions apply to the Brohlins decision to not give notice.
Meridian timely asserted they had not received the required notice. Meridian points out that pursuant to 542A.007(d), the Brohlins are not entitled to attorney fees incurred.
Section 542A.007(d) provides that a claimant cannot recover attorney’s fees if it does not give pre-suit notice and the defendant-insurer pleads and proves it was entitled to, but did not receive, pre-suit notice. Chapter 542A’s pre-suit notice requirement can only be excused if one of the two enumerated exceptions applies. The two enumerated exceptions are not applicable here.
The plain text of 542A forecloses the Brohlins’ arguments regarding abatement and equity.