United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Gren Scholer United States District Judge
Order addresses Defendant's Motion to Preclude
Attorney's Fees Under Section 542A.007');">542A.007 [ECF No. 8]. For
the reasons that follow, the Court grants the Motion.
action arose after Defendant The Travelers Indemnity Company
of America ("Defendant") denied Plaintiff Gateway
Plaza Condo's ("Plaintiff'') insurance claim
for storm damage. See Am. Compl. ¶ 10. There is
significant disagreement about the parties' conduct in
the early stages of this dispute.
to Plaintiff, its property was damaged by a severe storm on
or about June 2, 2017. See id.; Pl.'s App.
006-07. Plaintiff contends that it cannot recall when it
notified Defendant regarding this damage, see Resp,
¶ 24, but suggests that Defendant retained an inspector,
JNT Developers, to survey the property on August 16, 2017.
See Id. ¶ 8; Pl.'s App. 005. According to
Plaintiff, Defendant denied Plaintiffs claim, but it does not
know exactly when the claim was denied. See Resp.
¶ 7. Although Defendant sent Plaintiff a letter on
October 6, 2017, stating that Defendant "determined that
[Plaintiff's] policy does not cover" the damage to
the roof, Pl.'s App. 003, Plaintiff claims that Defendant
must have denied the claim earlier because the letter
references the parties' "recent conversation about
[the] claim." Id.; Resp. ¶ 7.
contrast, Defendant submitted an affidavit stating that
Plaintiff filed its claim on October 2, 2017, and reported
damage to the property on or about September 25, 2017.
See Def, 's App. 001. Defendant further attests
that it did not retain any individual to inspect the property
before these dates. See Id. at 029. Rather, the
affidavit states that Defendant first came across JNT
Developers' report when Plaintiff showed it to
Defendant's adjuster during an inspection of the property
on October 6, 2017. See id. at 002, 029.
Defendant's adjuster then sent Plaintiff a letter on
October 6, 2017, denying Plaintiffs claim and stating the
reasons for the denial. See Id. at 004-05.
subsequent developments are undisputed. Plaintiff retained a
public adjuster by January 2018, a second adjuster by March
2019, and an attorney on April 26, 2019. See Id. at
002; Pl.'s App. 001-02; Resp. ¶¶ 9-10. The
attorney requested various documents from Defendant regarding
the claim on May 3, 2019, see Pl.'s App. 001,
notified Defendant that Plaintiff will be filing suit on June
3, 2019, see Id. at 006-011, and filed this action
in state court on June 3, 2019, see Notice of
Removal ¶ 1 & Ex. A-2, Defendant removed this action
to this Court on July 10, 2019, and filed the pending Motion,
which is now briefed and before this Court.
542A of the Texas Insurance Code became effective on
September 1, 2017, and provides the notice requirements to be
given to an insurer prior to the bringing of a claim related
to certain property damage." Davis v. Allstate Fire
& Cas. Ins., Civ. A. No. 4:18-CV-00075, 2018 WL
3207433, at *1 (E.D, Tex. June 29, 2018). Specifically, a
plaintiff must provide the notice at least 61 days before an
action is filed unless it is "impracticable"
because: "(1) the [plaintiff] 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." Tex. Ins. Code
Ann. § 542A.003(a), (d).
within 30 days of filing "an original answer in the
court in which the action is pending," the defendant
"pleads and proves" "that the defendant was
entitled to but was not given a presuit notice ..., the court
may not award to the [plaintiff] any attorney's fees
incurred after the date the defendant files the pleading with
the court." Id. § 542A.007');">542A.007(d); cf.
Davis, 2018 WL 3207433, at *2 ("The burden of proof
is on the party seeking [relief under Section 542A] to
establish the allegations of its motions." (citation
omitted)). In the present case, Plaintiff admits that it did
not provide Defendant with presuit notice, but argues that
notice was not required under § 542A.003(d)(1) because
it "had a reasonable basis for believing that there was
not enough time for a 60-day presuit notice." Resp.
¶¶ 13, 15. The Court disagrees with Plaintiffs
argument, and finds that Defendant was entitled to, but was
not provided with, presuit notice.
statute of limitations under Texas law for claims under the
Texas Insurance Code and claims for bad faith is two years
from the date" that the "coverage under the Policy
was denied." J.P. Columbus Warehousing Inc. v.
United Fire & Cas. Co., Civ. A. No. 5:18-cv-00100,
2019 WL 453378, at *2 (S.D. Tex. Jan. 4, 2019) (citations
omitted); see also Castillo v. State Farm Lloyds,
210 Fed.Appx. 390, 394-95 (5th Cir. 2006) (same). Here, the
evidence is uncontroverted that Plaintiff reported its claim
on October 2, 2017. See Def.'s App. 001; Resp.
¶¶ 2, 24 (admitting that Plaintiff "did not
recall the exact date notice of loss was given to
Defendant"). Thus, it is inconceivable that Defendant
could have denied Plaintiffs claim before Plaintiff first
filed its claim in October 2017. As the statute of
limitations would expire in October 2019, Plaintiff did not
have a reasonable basis for believing that there was
insufficient time to give presuit notice when Plaintiff filed
the action on June 3, 2019. See Notice of Removal
¶ 1 & Ex. A-2.
even if the Court disregarded Defendant's uncontroverted
affidavit establishing the date Plaintiff filed its claim,
the Court would still find that Defendant was entitled to
presuit notice. The earliest date Plaintiff references for
the inspection of its property or the denial of its claim is
August 16, 2017. See Resp. ¶ 23 (("[T]he
claim could have been denied soon after the August 16, 2017
inspection, "), Plaintiff filed its action, however, 74
days before this date. Thus, Plaintiff had in excess of 60
days to provide Defendant with presuit notice before the
limitations period expired. See Tex. Ins. Code Ann.
§ 542A.003(a). Moreover, "Plaintiff proffers no
explanation for why it waited" almost two years before
the date of the alleged loss "before it hired an
attorney." J.P. Columbus, 2019 WL 453378, at
*6. This is especially troubling given that Plaintiff had
retained public adjusters who provided Defendants with
estimates as early as January 10, 2018, and who could have
provided Defendant with the requisite notice. See
Def.'s App. 002; Pl.'s App. 007-08. Under these
facts, the Court finds that Plaintiff lacked a reasonable
basis for believing that there was insufficient time to give
presuit notice before the limitations period expired.
J.P. Columbus, 2019 WL 453378, at *6.
reasons discussed above, the Court grants Defendant's
Motion and precludes Plaintiff from recovering ...