Dallas Fort Worth Insurance Lawyer Blog
Bad Faith Law Firms will have a frequent question asked of them. That question is, “Can I Recover My Attorney Fees.”
One segment of the attorney fees question is addressed in a 2023 opinion from the Southern District of Texas, Houston Division. The opinion is styled, Gilbane Building Company, Inc. v. Swiss Re Corporate Solutions Elite Insurance Company d/b/a North American Elite Insurance Company and Everest National Insurance Company.
Gilbane brought this lawsuit against Swiss asserting causes of action under the Texas Insurance Code and as part of the claim, sought recovery of attorney fees. Swiss filed a motion to exclude attorney fees based on the assertion that Gilbane had not complied with Section 542.003(a) of the Texas Insurance Code, in that the presuit notice requirement had not been satisfied as required by that statute.
Texas Insurance Code, Section 542A.003(a) requires a covered insurance claimant to give presuit notice to an insurer. Per Section 542A.003(b) this notice must include “(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.” Upon timely motion by the defendant, “the court shall abate the action if the court finds that the [defendant] … did not, for any reason, receive a presuit notice complying with Section 542A.003.” In addition, Section 542A.007(d) allows the defendant to seek preclusion of attorney’s fees if it timely pleads and proves that it was entitled to but did not receive a presuit notice “stating the specific amount alleged to be owed by the insurer under Section 542A.003(b)(2). ”
The Court then discussed what actually happened pre-suit between the parties and ruled against Gilbane.
This case serves as a good example of how the Courts will not allow a recovery for attorney fees if the pre-suit requirements are not met.