Dosekun v. State Farm Lloyds

833 F. Supp. 2d 662, 2011 WL 2517266, 2011 U.S. Dist. LEXIS 67173
CourtDistrict Court, S.D. Texas
DecidedJune 23, 2011
DocketCivil Action No. H-10-4238
StatusPublished
Cited by7 cases

This text of 833 F. Supp. 2d 662 (Dosekun v. State Farm Lloyds) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dosekun v. State Farm Lloyds, 833 F. Supp. 2d 662, 2011 WL 2517266, 2011 U.S. Dist. LEXIS 67173 (S.D. Tex. 2011).

Opinion

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

This is a suit to recover insurance proceeds and damages under the Texas Insurance Code, §§ 541.052, 541.060, and 541.061. The plaintiff, Arkinsan Dosekun, alleges that the defendant, State Farm Lloyds (“State Farm”), engaged in deceptive acts violating the Texas Insurance Code and the Texas Deceptive Trade Practices Act (“DTPA”). The defendants timely removed. (Docket Entry Nos. 1, 7). The defendant invoked the Texas Insurance Code requirement that a plaintiff seeking damages under the statute must give prior written notice of the complaint and the amount of damages sought, including fees, “not later than the 61st day before the date the action is filed.” Tex. Ins. Code § 541.154. The defendant asked this court to abate the suit until the 61st day after the plaintiffs provided the statutory written notice of their claims under the statute. This court granted the defendant’s motion on March 25, 2011. (Docket Entry No. 15).

On April 4, 2011, counsel for Dosekun sent State Farm a notice letter. The letter lists the same Texas Insurance Code and DTPA provisions set out in the complaint and claims that State Farm violated them. The letter also cites case law interpreting the Texas Insurance Code and DTPA provisions. The letter contains only general factual allegations. It states that:

It seems to be common practice of insurers to do an initial inspection of the loss and pay a relatively small amount of money in hope that the claim will go away or claim the damage is less than the deductible. If the insurer is sued, it takes the position that the insured never told the insurer about “more” damages, or never expressed displeasure in the amount of money initially paid, or never re-opened the claim, or never “proved” more damage.... I believe the evidence in State Farm’s file showing its failure to adequately investigate and failure to offer any money to repair the Dosekuns’ home proves that State Farm violated these duties.
Hurricane Ike damaged the Dosekuns’ home. The Dosekuns retained experts to inspect their home. The experts are qualified [to] evaluate the damage the hurricane caused. The experts inspected the Dosekuns’ home and found damage that the hurricane caused. [664]*664The attached reports detail the damage and needed repairs. We provided the insurer with these reports at least once already and it took no action.

(Docket Entry No. 16, Ex. 2, April 4, 2011 Notice Letter). The letter does, however, include amounts for Dosekun’s actual damages, DTPA treble damages, total damages, and attorneys’ fees. It also states an amount at which Dosekun would settle his claim. Attached to the letter are estimates of the damage to his home, describing in detail the cause of the damage and the estimated costs of replacement or repair for each damaged item. (Docket Entry Nos. 21, 22, 23).

On April 28, 2011, State Farm moved to continue the abatement, (Docket Entry No. 16). State Farm argues that the April 4 notice letter does not meet the requirements under § 541.154 because the letter does not tie “the alleged damages to any specific facts.” (Docket Entry No. 16, at 2). Dosekun responded to the motion, (Docket Entry No. 17); State Farm replied, (Docket Entry No. 18); and Dosekun surreplied, (Docket Entry No. 19). Based on the motion, response, and replies; the parties’ attachments; and the applicable law, State Farm’s motion to continue the abatement, (Docket Entry No. 16), is denied. The reasons are set forth below.

I. The Legal Standard

Section 541.154(a) of the Texas Insurance Code states: “[a] person seeking damages in an action against another person under this chapter must provide written notice to the other person not later than the 61st day before the date the action is filed.” Tex. Ins. Code § 541.154(a). “The notice must advise the other person of “the specific complaint” and the amount of actual damages and expenses, including attorney’s fees reasonably incurred in asserting the claim against the other person.” Tex. Ins. Code § 541.154(b). There is an exception to this requirement if “giving notice is impracticable because the action: (1) must be filed to prevent the statute of limitations from expiring .... ” Tex. Ins. Code § 541.154(c)(1). Finally, § 541.155 provides that a person who does not receive presuit notice may file a plea in abatement. “The court shall abate the action if, after a hearing, the court finds that the person is entitled to an abatement because the claimant did not provide the notice as required by Section 541.154.” Tex. Ins. Code § 541.155(a), (b).

The purpose of the 60-day notice requirement under the Texas Insurance Code is to “discourage litigation and encourage settlements of consumer complaints.” Hines v. Hash, 843 S.W.2d 464, 468 (Tex.1992) (quoting Jim Walter Homes, Inc. v. Valencia, 690 S.W.2d 239, 242 (Tex.1985)).1 The notice requirement is intended to give a defendant insurer a right and opportunity to make a settlement offer. Tex. Ins. Code § 541.156; see also In Re Behr, No. 04-05-00895-CV, 2006 WL 468001, at *2 (Tex.App.-San Antonio Mar. 1, 2006, no pet.) (holding that without presuit notice, a defendant “is denied his right to limit his damage exposure through an offer of settlement as contemplated by sections 541.156-.159 of [665]*665the Insurance Code”). If a plaintiff fails to comply with the notice requirement, “abatement of the action for the statutory notice period is more consistent with the purpose of notice than dismissal.” Hines, 843 S.W.2d at 469.

The statutory written notice must advise the other party in reasonable detail of “the specific complaint” and “the amount of actual damages and expenses, including attorney’s fees reasonably incurred in asserting the claim against the other person.” Tex. Ins. Code § 541.154(b)(1), (2); see also Richardson v. Foster & Sear, LLP, 257 S.W.3d 782, 786 (Tex.App.-Ft. Worth 2008, no pet. h.) (finding that a six-page letter from the plaintiff stating the causes of action, specific factual allegations, and specific damages satisfied the presuit notice requirement).

In this case, more than 60 days has passed since the plaintiffs provided the statutory notice letter. The issue is whether its content was sufficient. Texas courts interpreting the statute have held that notice letters containing specific factual allegations supporting the causes of action, or at least enough information to imply those facts, satisfy the notice requirement. See Richardson,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re CYPRESS TEXAS LLOYDS
437 S.W.3d 1 (Court of Appeals of Texas, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
833 F. Supp. 2d 662, 2011 WL 2517266, 2011 U.S. Dist. LEXIS 67173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dosekun-v-state-farm-lloyds-txsd-2011.