Dallas Fort Worth Insurance Lawyer Blog
Here is a case where the insurance company complains that it did not receive proper pre-suit notice of the claim. The Court disagreed with the insurance company.
This is a 2022 opinion from the Northern District of Texas, Dallas Division. It is styled, Douglas D. Dailey, et al., vs. Amguard Insurance Company.
Dailey sued Amguard in State Court and Amguard timely and properly removed the case to Federal Court then moved under the Texas Insurance Code, Section 542A.005(a)(1), to abate the case until the 60th day after Dailey give notice that complies with Section 542A.003 of the Texas Insurance Code.
Dailey responds to Amguard’s assertion that the notice was improper by stating the notice was sufficient and that Amguard failed to give notice of it’s intent to inspect the property.
Section 542A.003 provides, when claimants intend to sue for violations of the Code, they must give pre-suit notice:
(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.
Tex. Ins. Code Ann. § 542A.003(a)-(b).
[A] person against whom an action to which this chapter applies
is pending may file a plea in abatement not later than the 30th
day after the date the person files an original answer in the court
in which the action is pending if the person: (1) did not receive
a presuit notice complying with Section 542A.003.
The purpose of the 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.
The Daileys sent Amguard the notice letter more than 60 days ago. So the issue
becomes whether the letter satisfied the statutory requirements. Notice letters with specific factual allegations supporting the causes of action, or at least enough information to imply those facts, satisfy the notice requirement.
Amguard contends that the Daileys’ notice letter “lack[s] sufficient information
regarding alleged acts or omissions on the part of Amguard that give rise to Plaintiffs’ claims.” The court disagrees. The letter contains several pages that
detail how Amguard allegedly mishandled the Daileys’ insurance claim. It also specifies the provisions of the Texas Insurance Code and the DTPA that Amguard allegedly violated. Thus the letter sufficiently states the acts or omissions giving rise to the claims because Amguard has a basis from which to imply the facts.
Amguard also maintains that the letter from the Daileys’ counsel did not include
the amount of reasonable and necessary attorney’s fees incurred by the claimant because the letter failed to show how the attorney’s fees were calculated. The court again disagrees.
To be sure, Section 542A.002(b)(3) the Texas Insurance Code requires that the claimant’s attorney’s fees be “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.” But as Judge O’Connor has concluded, the plain language of the statute does not require that these calculations be included in the pre-suit notice. Because the notice letter sufficiently gives notice of the amount of reasonable and necessary attorney’s fees incurred by the Daileys, the court holds that it also satisfies this requirement of the statute.
The Court found the notice letter to be sufficient.