Effective 2017, the Texas Legislature made changes to the pre-suit notice requirements for first party cases against insurers. This is a brief checklist of requirements under the Texas Insurance Code. It appears that the changes are limited to weather-related occurrences, but most commentators agree that it is wise to follow the procedures in all cases under the Texas Insurance Code.
- Applicability.
(1) an action alleging a breach of contract;
(2) an action alleging negligence, misrepresentation, fraud, or breach of a common law duty; or
(3) an action brought under: (A) Subchapter D, Chapter 541 [Unfair Method]; (B) Subchapter B, Chapter 542 [Prompt Pay]; or (C) Subchapter E, Chapter 17, Business & Commerce Code.
(4) but it does not apply to TWIA claims. 542A.002
- a statement of the acts or omissions giving rise to the claim. 542A.003(b)1.
- the specific amount alleged to be owed by the insurer on the claim for damage to or loss of covered property. 542A.003(b)2. [542.007(a), (b)and (d) provide a big incentive to make sure the initial demand is not inflated; and that the amount is included in the demand letter]
- the amount of reasonable and necessary attorney’s fees incurred by the claimant, calculated by multiplying the number of hours actually worked by the claimant’s attorney, as of the date the notice is given and as reflected in contemporaneously kept time records, by an hourly rate that is customary for similar legal services. 42A.003(b)3. [A good practice might be to include time sheets].
- Attorneys must provide a copy of the notice to the claimant and “include in the notice a statement that a copy of the notice was provided to the claimant.” 42A.003(c)(1)-(2).
Once notice is given, the insurer should not file a declaratory action against the claimant. 42A.003(e).
Chapter 541 [Unfair Methods Deceptive Practices] also requires similar notice under 541.154.