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Lawyer who did not know how to calculate the date loses the right to legal fees



There is no good reason, if a client intends to sue his insurer, not to give 61 days notice in Texas if the lawyer is retained in time. In Texas, in order to be eligible for attorney's fees in a lawsuit against an insurer, it must give the insurer 61 days notice before the expiration date. When the notice is not given in a timely manner, the client loses the right to charge attorney's fees from the insurer.

I Nexxt Holding, Inc. v. Travelers Cas. Ins. Co. or AM . Civil Case No. H-20-817, U.S. District Court for the Southern District of Texas Houston Division (September 24, 2020) enforced the USCA Texas Charter.

MEMORANDUM AND OPINION

Houston's storms give rise to claims by first parties and often disputes over these claims. Nexxt Holding, Inc. sued Travelers Casualty Insurance Company of America in state court 2020, claiming that travelers did not pay insurance repair costs after a storm in August 2017. Nexxt Holding asserted Texas statutory and generally legal claims and claimed actual, consequential and statutory damages as well. attorney fees. Travelers responded and a verified basis for the lack of a presuit message.

TEXAS INSURANCE CODE

Texas Insurance Code 542A.007 (d) states that if an insured plaintiff claims first party for storm damage against his property insurer and the respondent insurer "appeals and proves" that it was entitled to, but did not give notice, stating the specific amount alleged to be due at least 61 days before the date on which the action was brought, the court may not assign to the plaintiff any legal fees arising after the date on which the defendant lodged his appeal with the court.

ANALYSIS

Travelers moved for an order preventing Nexxt Holding from recovering fees in this action because travelers were entitled to, but did not receive, the statutory pres. notice. Travelers presented valid evidence that it was entitled to the notice, did not receive it and submitted in time a verified appeal claiming that the absence of notice lasted. This exception stipulates that a presuit notice is not required if the notice is impractical because the applicant has a reasonable basis to believe that there is not enough time to notify the presuit before the limitation period expires.

claims under the Texas Insurance Code and claims for unfaithfulness are two years from the date on which coverage under the insurance was denied. The deadline for a claim for breach of contract in Texas is four years. The earliest travelers denied coverage and violated the insurance contract on October 17, 2017. The statutory liability period would expire on October 17, 2019.

Nexxt Holding hired legal counsel on July 11, 2019, more than 90 days before October 17 Nexxt Holding's adviser contacted travelers on August 7, 2019, more than 70 days before October 17. Nexxt Holding had plenty of time to leave a presumption message to travelers.

A discovery of impossibility should be reserved for cases where presuit notice can really not be provided. The court therefore found that the minutes were sufficient to meet the travelers' burden of appealing and proving the grounds for excluding the award of legal fees to Nexxt Holding. an incentive to enter into negotiations and possibly avoid disputes altogether, as failure of a settlement can cost the insurer the fees that the insurance incurs when it sues the insurer. It is a variant of the English system where the insured winner can receive legal fees but will not have to pay legal fees if the insurer succeeds.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE now limits his practice to serving as an insurance consultant specializing in insurance coverage, handling insurance claims, cheating and insurance fraud almost equally for insurance policyholders. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

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