Dallas Fort Worth Insurance Lawyer Blog
Texas law requires pre-suit notice in many situations. The Texas Insurance Code requires pre-suit notice before certain homeowners claims can be litigated. An example of this is found in the 2018 opinion, Dwight Davis v. Allstate Fire and Casualty Insurance Company. The opinion is from the Eastern District of Texas, Sherman Division.
Davis filed a first party lawsuit against Allstate. Allstate filed a Verified Motion to Abate Pursuant to Texas Insurance Code, Section 542A.103.
The purpose of the notice requirement is to discourage litigation and encourage settlements. The statute reads in part:
(a) … 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 … 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 …
(c) If an attorney or other representative gives the notice … 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.
One of the purposes of 542A(c) is to aid in the calculation of recoverable attorneys’ fees. Section 542A allows a defendant who did not receive a presuit notice complying with 542A to file a plea in abatement not later than the 30th day after the date the person files an original answer. “The court shall abate the action if the Court finds the person filing the plea … did not, for any reason, receive a presuit notice complying with Section 542A.003. The burden of proof is on the party seeking abatement to establish the allegations of its motions. The action automatically abates, without a court order, beginning on the 11th day after the date a plea in abatement is filed if the plea … is not uncontroverted by an affidavit filed by the claimant before the 11th day after the date the plea in abatement is filed.”
In this case, the claimant gave a presuit notice. However, the notice did not contain the requirement of section 542A.003(c)(2) and thus, the court abated the case.