Dallas Fort Worth Insurance Lawyer Blog
The law in Texas is pretty clear, an insurance company is entitled to received a notice before a lawsuit is filed. This is recently illustrated in a Southern District, Houston Division, opinion styled, Jose Luis Perrett v. Allstate Insurance Company.
This is a dispute arising out of damage caused by Hurricane Harvey. Perrett sued Allstate and Allstate moved to have the case abated due to Perrett’s failure to comply with Texas Insurance Code, Section 542A.003, which requires a presuit notice. The Court granted Allstate’s motion.
542A.003 says:
(a) In addition to any other notice required by law or the applicable insurance policy, not later than the 61st day before the date a claimant files an action to which this chapter applies in which the claimant seeks damages from any person, the claimant must give written notice to the person in accordance with this section as a prerequisite to filing the action.
(b) The notice required under this section must provide:
(1) a statement of the acts or omissions giving rise to the claim;
(2) the specific amount alleged to be owed by the insurer on the claim for damage to or loss of covered property; and
(3) the amount of reasonable and necessary attorney’s fees incurred by the claimant, calculated by multiplying the number of hours actually worked by the claimant’s attorney, as of the date the notice is given and as reflected in contemporaneously kept time records, by an hourly rate that is customary for similar legal services.
(c) If an attorney or other representative gives the notice required under this section on behalf of a claimant, the attorney or representative shall:
(1) provide a copy of the notice to the claimant; and
(2) include in the notice a statement that a copy of the notice was provided to the claimant.
(d) A presuit notice under Subsection (a) is not required if giving notice is impracticable because:
(1) the claimant has a reasonable basis for believing there is insufficient time to give the presuit notice before the limitations period will expire; or
(2) the action is asserted as a counterclaim.
(e) To ensure that a claimant is not prejudiced by having given the presuit notice required by this chapter, a court shall dismiss without prejudice an action relating to the claim for which notice is given by the claimant and commenced:
(1) before the 61st day after the date the claimant provides presuit notice under Subsection (a);
(2) by a person to whom presuit notice is given under Subsection (a); and
(3) against the claimant giving the notice.
(f) A claimant who gives notice in accordance with this chapter is not relieved of the obligation to give notice under any other applicable law. Notice given under this chapter may be combined with notice given under any other law.
(g) Notice given under this chapter is admissible in evidence in a civil action or alternative dispute resolution proceeding relating to the claim for which the notice is given.
(h) The giving of a notice under this chapter does not provide a basis for limiting the evidence of attorney’s fees, damage, or loss a claimant may offer at trial.
The 60 day notice requirement is to discourage litigation and encourage settlements of consumer complaints by allowing the defendant insurer a right and opportunity to make a settlement offer. If a plaintiff does not comply with the notice requirement, abatement of the action for the statutory notice period is more consistent with the purpose of notice than dismissal. The Texas Supreme Court has held that if a plaintiff files an action for damages without first giving the required notice, and a defendant timely requests an abatement, the trial court must abate the proceedings for 6o days.
In this case, a presuit notice was given but it was deficient in many ways. Proper presuit notice is required under the law.