Dallas Fort Worth Insurance Lawyer Blog
Here is a 2024 opinion from the Northern District of Texas, Amarillo Division, that deals with an important procedural in hail damage claims. The opinion is styled, Lotus Sky, LLC v. Lexington Insurance Company and Constitution Insurance Company.
This case arises from a hail damage insurance claim. Lotus Sky sued Lexington for breach of contract and various violations of the Texas Insurance Code. In response Lexington filed a Verified Plea as a Motion to Abate.
Accordingly, because this lawsuit is based on an insurance claim arising from alleged wind and hail damage, this lawsuit triggers compliance with Section 542A.003 of the Texas Insurance Code. Relevant to the Motion before the Court, Lotus Sky was required to provide presuit notice to Lexington at least 60
days before filing suit. Lexington alleges it did not receive the requisite presuit notice. As a result of not
receiving presuit notice, Lexington alleges it “is entitled to abatement of this action until the 60th
day after Plaintiff provides presuit notice complying with Chapter 542A.003.”
Section 542A.003 of the Texas Insurance Code provides that “not later than the 61st day before the date a claimant files an action to which this chapter applies in which the claimant seeks damages from any person, the claimant must give written notice to the person.” The notice must provide: “(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….” If notice is provided by an attorney or representative on the
claimant’s behalf, “the attorney or representative shall: (1) provide a copy of the notice to the claimant; and (2) include in the notice a statement that a copy of the notice was provided to the claimant.” The notice requirement is intended to give a defendant insurer a right and opportunity to make a settlement offer.
Section 542A.005 allows a defendant to file a plea in abatement “not later than the 30th day after the date the [defendant] files an original answer in the court in which the action is pending….” The party seeking abatement has the burden of proof to establish the allegations in its motion. If the person
seeking abatement did not receive presuit notice as required by section 542A.003, “the court
shall abate the action….” “Abatement is automatic and without court order if the defendant verifies the plea in abatement,” alleges failure to comply with section 542A.003, “and the plaintiff does not controvert the verified plea [by filing an affidavit] before the 11th day after the plea in abatement is filed. In either scenario, an abatement continues until “the 60th day after the date notice” is provided.
Accordingly, this action automatically abated under the Texas Insurance Code on June 29, 2024, eleven (11) days after Defendants filed their Verified Plea, and will remain in abatement until “the 60th day after the date” proper presuit notice is provided.