Dallas insurance lawyers know the pre-suit requirements of filing a lawsuit against an insurance company.
This essentially means giving the insurance company or agent, at least a sixty day written notice detailing what the complaint is and what you expect them to do about it. This notice must tell the person the specific complaint, the amount of the actual damages and expenses, including attorney fees, incurred in asserting the claim. This is codified in the Texas Insurance Code, Section 541.154(a) and (b).
An exception to the notice requirement would be (1) waiting the 60 days would allow the limitations period to expire, and (2) when the claim is asserted as a counterclaim. This is codified in Section 541.154(c).
Section 541.155 tells us that without a 60 day notice, the insurance company can have the claim abated until such time as the notice has been properly given.
If the 60 day notice is not given, and the insurance company does not complain, then any remedies available to the insurance company for such failure are waived.
The reason for the notice is to give the insurance company the chance to consider making a settlement offer. But the offer needs to be given within the 60 day time period. Section 541.156 also allows a party a statutory right to seek mediation. When mediation is requested the time frame for making an offer is extended to 20 days after the mediation occurs.
Section 541.157 requires that a settlement offer include an offer to pay an amount to settle the claim, and an amount to pay the reasonable and necessary attorney fees.
An offer that is not accepted within 30 days is considered rejected. If the offer is rejected, the defendant may file with the court an affidavit certifying rejection of the offer. The trial court then can compare the offer to the amount of money the plaintiff recovers. If the offer is the same as, substantially the same as, or more that the recovery, the plaintiff is limited to the lesser amount. If this happens, the court can also limit the attorney fees and will usually do so. The limit would be to not allow recovery of attorney fees beyond those incurred after the offer was made. The plaintiff’s recovery cannot be limited if the court finds the defendant could not have performed the offer or substantially misrepresented the offer’s cash value.
The purpose of the law requiring a 60 day notice is to encourage settlement of a case without either party having to incur the time or expense of litigation. A well prepared notice letter will make a point of view clear and understood and allow the insurance company to make a business decision in whether or not they want to litigate the claim. A further purpose is to save the time and resources of the court system.
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