Folks in Weatherford, Parker County, Aledo, Azle, Springtown, Poolville, Whitt, Peaster, Hudson Oaks, Brock, Willow Park, Cool, Millsap, and other places in Texas will at one time or another have a claim against their own insurance company. When making this claim against their own insurance company, otherwise known as a first party claim, and the insurance company does not treat you properly in the handling of the claim it is likely that there have been violations of provisions of the Texas Insurance Code. When this happens it is advisable to seek the assistance of an experienced Insurance Law Attorney. Here is what he should tell you.
1) gather all the documents you have related to the claim, such as the policy itself, letters and e-mails and faxes to and from the insurance company, and any documents verifying the value of the loss such as repair bills or estimates;
2) write out what has happened – this should be your version of the sequence of events with all the relevant information to help the attorney understand the case – the writing should start out: My name is …, I have a policy of insurance with …, On such and such date … happened, I then made a claim to my insurance company for benefits. Then write down a sequencial listing of what happened in the claims process.
With all this information the attorney can then give the required 60 day notice letter to the insurance company detailing what has happened and what it has cost the insured. Then the attorney put can plug in all the legal information that sets forth the duties and responsibilities of the insurance company and based on the information provided by the insured the attorney can put in writing the various provisions in the insurance code that appear to have been violated along with a demand that the situation be remedied within the 60 day period or a lawsuit will be filed.
The United States District Court for the Southern District of Texas, Houston Division recently issued an opnion on a case where the 60 day notice provision of Texas Insurance Code, Section 541.154. The style of the case is, Greater Mount Zion Baptist Church v. Harry Blaker and Union Insurance Co., and the opinion was issued on February 14, 2011.
In the case, Zion Baptist sued the defendants for violations of the insurance code. The defendants caused the case to be removed to Federal Court and filed a verified plea in abatement. The abatement was filed in accordance with the Insurance Code, Section 541.155.
Section 541.154(a) of the Texas Insurance Code states: “A person seeking damages in an acton against another person under this chapter must provide written notice to the other person not later than the 61st day before the date the action is filed.” Section (b) says: “The notice must advise the other person of: (1) the specific complaint; and (2) the amount of actual damages and expenses, including attorney’s fees reasonably incurrred in asserting the claim against the other person.”
There is an exception to giving the notice. That exception is found in subsection (c), which says: “The notice is not required if giving notice is impracticable because the action: (1) must be filed to prevent the statute of limitations from expiring; or (2) is asserted as a counterclaim.”
As this court stated, the purpose of the 60-day notice requirement under the Texas Insurance Code is to “discourage litigation and encourage settlements of consumer complaints.” This was citing Hines v. Hash, a 1992, Texas Supreme Court case.
The notice requirement is intended to give a defendant insurance company a right and opportunity to make a settlement offer.
Quoting the court, “If a plaintiff fails to 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 court went on to say that the statutory written notice must advise the other party in reasonable detail of “the specific complaint” and “the amount of actual damages and expenses, including attorney’s fees reasonably incurred in asserting the claim against the other person.
In this case, the court found no indication that a statutory notice letter had been filed. Nor did they find either of the two exceptions to the requirement to give the notice. As a result the case was abated until 60 days after the plaintiff provides “written notice to the defendants as required by the Texas Insurance Code …”
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