United States District Court, S.D. Texas, Houston Division
ORDER DENYING ATTORNEY'S FEES
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.
Properties sued Commercial Property Group, Westchester
Surplus Lines Insurance Co., and All Risks, Ltd in state
court, alleging contract breach and violations of the Texas
Insurance Code based on damage that a Tarantino property
allegedly sustained during Hurricane Harvey. (Docket Entry
No. 1-5 at 1). The defendants removed. (Docket Entry No. 1).
Westchester has moved for an order denying Tarantino
attorney's fees under Texas Insurance Code §
542A.007(d). (Docket Entry No. 9). Tarantino responded,
Westchester replied, and the court heard the arguments of
counsel. (Docket Entry No. 21, 22).
If a defendant in an action to which this chapter applies
pleads and proves that the defendant was entitled to but was
not given a presuit notice stating the specific amount
alleged to be owed by the insurer under Section
542A.003(b)(2) at least 61 days before the date the action
was filed by the claimant, the court may not award to the
claimant any attorney's fees incurred after the date the
defendant files the pleading with the court. A pleading under
this subsection must be filed not later than the 30th day
after the date the defendant files an original answer in the
court in which the action is pending.
Tex. Ins. Code § 542A.007(d). Under §
542A.003(b)(2), “not later than the 61st day
before” filing an action under Texas Insurance Code
Chapter 542A, the plaintiff must give the defendant written
notice of “the specific amount alleged to be owed by
the insurer on the claim for damage to or loss of covered
admits that it did not give Westchester notice under §
542A.003(b)(2) until December 14, 2018, long after it sued
Westchester on September 11, 2018. (Docket Entry No. 21 at
1-2). Westchester timely moved for an order denying Tarantino
attorney's fees within 30 days of answering
Tarantino's petition, as required by § 542A.007(d).
(Docket Entry No. 9 at 1). As a result, Tarantino may not
recover “attorney's fees incurred after [April 3,
2019, ] the date [Westchester] file[d] the [motion] with the
court.” Tex. Ins. Code § 542A.007(d).
argues that it was unable to timely notify Westchester
because Tarantino did not know Westchester's address.
(See Docket Entry No. 21 at 2). Tarantino
“amended its petition on December 13, 2018 to include
the proper service address for Westchester, ” and then
Tarantino gave the requisite notice to Westchester on
December 14. (Id.). Tarantino contends that it was
not required to notify Westchester because the action was
automatically abated in November 2018 after defendant All
Risks informed the state court that Tarantino had also failed
to give it adequate notice under § 542A.003.
See Tex. Ins. Code § 542A.005(c) (providing for
an automatic abatement if the defendant files a plea
verifying that the plaintiff failed to give it notice under
§ 542A.003). Tarantino argues that an order denying
attorney's fees encourages dilatory plaintiffs to
voluntarily dismiss the suit, give notice, and refile, which
would delay and increase the cost of litigation. (Docket
Entry No. 21 at 5).
plain text of the pertinent Code sections forecloses
Tarantino's arguments. Section 542A.007(d) conditions
attorney's fees solely on whether the plaintiff timely
gave the defendant presuit notice under §
542A.003(b)(2), which Tarantino concedes it failed to do.
There are no equitable exceptions to this requirement. Nor is
there an exception based on an abatement that automatically
goes into effect after the suit was filed, an
exception which would undermine the presuit notice required
by § 542A.003 and incentivized by the loss of
attorney's fees under § 542A.007(d). The
district-court authority cited by Tarantino concerns the
presuit-notice requirements under 542A.003, not the denial of
attorney's fees under § 542A.007(d). See Perrett
v. Allstate Ins. Co., 354 F.Supp.3d 755 (S.D. Tex.
court grants Westchester's motion. (Docket Entry No. 9).
Tarantino may not recover attorney's fees incurred from