in Re: Cypress Texas Lloyds ( 2011 )

NUMBER 13-11-00107-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE CYPRESS TEXAS LLOYDS
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez, and Perkes
Memorandum Opinion by Justice Perkes1
By petition for writ of mandamus, relator, Cypress Texas Lloyds (―Cypress‖),
seeks to compel the trial court to withdraw its order denying Cypress‘s motion to abate
the underlying litigation and to require the real party in interest, Jose L. Hernandez, to
1
See TEX. R. APP. P. 52.8(d) (―When denying relief, the court may hand down an opinion but is
not required to do so.‖); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
provide presuit notice in compliance with the Texas Insurance Code and to submit to an
examination under oath.2 We deny the petition for writ of mandamus.3
I. BACKGROUND
Hurricane Dolly struck the Rio Grande Valley on July 23, 2008, damaging
Hernandez‘s roof and allowing water incursion into the home. At the time of the storm,
Hernandez had homeowner‘s insurance through a policy issued by Cypress.
Hernandez filed an insurance claim regarding the property damage. After an
inspection, Cypress paid Hernandez $2,753.01 for his property damages. Hernandez
was dissatisfied with the payment because it was insufficient to make the necessary
repairs to his home. Hernandez contacted Cypress twice in subsequent months to ask
it to reevaluate his claim. Cypress failed to satisfy Hernandez‘s queries. Hernandez
filed suit against Cypress and sent Cypress additional written notice of his claims that
same day. Cypress filed its answer to the lawsuit and, one month later, filed a verified
motion to abate the suit on grounds that Hernandez had failed to send notice of the
lawsuit or submit to an examination under oath.
The trial court held a hearing on Cypress‘s motion for abatement. At the hearing,
Cypress requested the trial court to take judicial notice of the pleadings and the dates
that the petition and answer were filed. The trial court granted Cypress‘s request by
2
This original proceeding arises from trial court cause number C-1938-10-E, styled Jose L.
Hernandez v. Cypress Texas Lloyds, Crawford & Company, and Amanda M. Montoya, currently pending
in the 275th District Court of Hidalgo County, Texas. The respondent is the Honorable Juan Partida.
3
We are likewise denying two separate original proceedings filed by Cypress which raise
identical legal issues and which are based on substantially similar facts. See In re Cypress Tex. Lloyds,
No. 13-11-00070-CV, 2011 Tex. App. LEXIS ___ (Tex. App.—Corpus Christi [date], orig. proceeding),
available at http://www.13thcoa.courts.state.tx.us/opinions/docketsrch.asp; In re Cypress Tex. Lloyds, No.
13-11-00248-CV, 2011 Tex. App. LEXIS ___ (Tex. App.—Corpus Christi [date], orig. proceeding) (mem.
op.), available at http://www.13thcoa.courts.state.tx.us/opinions/docketsrch.asp.
2
stating that it would take judicial notice of ―everything in the Court‘s file.‖ The trial court
denied Cypress‘s motion to abate, and this original proceeding ensued.
By two issues, Cypress contends that the trial court erred in refusing to abate the
case because (1) Hernandez failed to provide the presuit notice required by the Texas
Insurance Code, and (2) Hernandez failed to submit to an examination under oath as
required by his homeowner‘s insurance policy. In response, Hernandez asserts, inter
alia, that he gave proper and sufficient notice to Cypress on June 29, 2010, and
therefore Cypress‘s request for abatement is moot. Hernandez further asserts that
Cypress failed to request an examination under oath prior to making its claims decision,
suit has now been filed, and Cypress could obtain the same information by deposition.
II. STANDARD OF REVIEW
Mandamus is an ―extraordinary‖ remedy. In re Sw. Bell Tel. Co., L.P., 235
S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256
S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). To obtain mandamus relief, the relator
must show that the trial court clearly abused its discretion and that the relator has no
adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36
(Tex. 2004) (orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462
(Tex. 2008) (orig. proceeding). A trial court abuses its discretion if it reaches a decision
so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it
clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P.,
164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). To satisfy the clear abuse of discretion
standard, the relator must show that the trial court could ―reasonably have reached only
3
one decision.‖ Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996)
(quoting Walker, 827 S.W.2d at 840).
Historically, mandamus was treated as an extraordinary writ that would issue
―only in situations involving manifest and urgent necessity and not for grievances that
may be addressed by other remedies.‖ Walker, 827 S.W.2d at 840. Now, whether a
clear abuse of discretion can be adequately remedied by appeal depends on a careful
analysis of the costs and benefits of interlocutory review. See In re McAllen Med. Ctr.,
Inc., 275 S.W.3d at 462. Sometimes, ―[a]n appellate remedy is ‗adequate‘ when any
benefits to mandamus review are outweighed by the detriments.‖ In re Prudential Ins.
Co. of Am., 148 S.W.3d at 136. According to the Texas Supreme Court:
Mandamus review of significant rulings in exceptional cases may be
essential to preserve important substantive and procedural rights from
impairment or loss, allow the appellate courts to give needed and helpful
direction to the law that would otherwise prove elusive in appeals from
final judgments, and spare private parties and the public the time and
money utterly wasted enduring eventual reversal of improperly conducted
proceedings.
Id.
When a claimant fails to give a statutory notice that is a prerequisite to filing suit
and the trial court denies the defendant‘s timely request for abatement, that defendant is
entitled to seek review of the court‘s denial by mandamus. See Hines v. Hash, 843
S.W.2d 464, 469 (Tex. 1992) (concluding there is no adequate remedy by appeal for the
failure to give statutory notice under the Texas Deceptive Trade Practices Act)4; Am.
4
Both the Texas Insurance Code and the Texas Deceptive Trade Practices Act require a plaintiff
to give sixty days‘ notice to a defendant before filing suit. See TEX. INS. CODE ANN. § 541.154(a) (West
2009); TEX. BUS. & COM. CODE ANN. § 17.505(a) (West 2011). The purpose of the requirement is the
same under both statutes. Cleo Bustamante Enters., Inc. v. Lumbermens Mut. Cas. Co., No. Civ. A. SA-
05-CA0433, 2005 U.S. Dist. LEXIS 13494, at *3 (W. D. Tex. June 30, 2005) (citing Hines v. Hash, 843
S.W.2d 464, 469 (Tex. 1992)). If a person against whom an action under these statutes is brought does
not receive the required pre-filing notice, he or she may file a plea in abatement no later than thirty days
4
Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex. App.—Houston [14th Dist.] 1997, no
pet.) (same); see also In re Liberty Mut. Fire Ins. Co., No. 14-09-00876-CV, 2010 Tex.
App. LEXIS 3063, at **16–17 (Tex. App.—Houston [14th Dist.] Apr. 27, 2010, orig.
proceeding) (mem. op.) (concluding there is no adequate remedy by appeal for the
failure to give statutory notice under the Texas Insurance Code); In re Behr, No. 04-05-
00895-CV, 2006 Tex. App. LEXIS 1588, at *7 (Tex. App.—San Antonio Mar. 1, 2006,
orig. proceeding) (mem. op.) (same). Similarly, when an insured fails to give a required
examination under oath, the trial court‘s refusal to allow abatement is reviewable by
mandamus. In re Foremost County Mut. Ins. Co., 172 S.W.3d 128, 136 (Tex. App.—
Beaumont 2005, orig. proceeding) (granting mandamus relief on grounds that the trial
court had no discretion to deny abatement to allow an examination under oath and that
relator had no adequate remedy on appeal).
III. LACHES
As an initial matter, we address Hernandez‘s contention that laches bars our
consideration of this petition for writ of mandamus. Hernandez argues that Cypress
waited sixty-eight days after receiving his notice to request abatement of the lawsuit,
and waited an additional seventy-three days from the date the trial court denied the plea
in abatement to file this petition for writ of mandamus.
after the date he or she files an original answer in the court in which the action is pending. See TEX. INS.
CODE ANN. § 541.155(a) (West 2009); TEX. BUS. & COM. CODE ANN. § 17.505(c) (West 2011). A court
must abate the action if it finds that the claimant did not provide the required pre-filing notice. See TEX.
INS. CODE ANN. § 541.155(b); TEX. BUS. & COM. CODE ANN. § 17.505(d). The abatement will run until the
sixtieth day after the date the claimant properly provides the pre-filing notice. See TEX. INS. CODE ANN. §
541.155(d) (West 2009); TEX. BUS. & COM. CODE ANN. § 17.505(e) (West 2011). Cases involving the
DTPA notice provision, which requires the notice to advise the person ―in reasonable detail of the
consumer‘s specific complaint,‖ are instructive on whether the requirements of the Texas Insurance Code
notice provision have been met. See Dosekun v. State Farm Lloyds, No. H-10-4238, 2011 U.S. Dist.
LEXIS 67173, at **5–7 n.1 (S.D. Tex. June 23, 2011).
5
Although mandamus is not an equitable remedy, its issuance is controlled largely
by equitable principles. In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009)
(orig. proceeding) (per curiam). One such principle is that ―[e]quity aids the diligent and
not those who slumber on their rights.‖ Rivercenter Assocs. v. Rivera, 858 S.W.2d 366,
367 (Tex. 1993) (orig. proceeding) (quoting Callahan v. Giles, 137 Tex. 571, 576, 155
S.W.2d 793, 795 (1941) (orig. proceeding)). To invoke the equitable doctrine of laches,
the moving party ordinarily must show an unreasonable delay by the opposing party in
asserting its rights and also the moving party‘s good faith and detrimental change in
position because of the delay. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010)
(orig. proceeding); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989).
Under certain circumstances, a delay in the filing of a petition for writ of mandamus may
be justified. In re Int’l Profit Assocs., Inc., 274 S.W.3d at 676; see In re SCI Tex.
Funeral Servs., Inc., 236 S.W.3d 759, 761 (Tex. 2007) (orig. proceeding) (holding that a
delay of slightly less than six months did not constitute laches because the time was
required to obtain records of numerous discovery hearings and brief issues for court).
In the instant case, the lawsuit was filed on June 29, 2010. Cypress filed its
answer on or about August 9, 2010, and filed its plea in abatement on September 8,
2010. The trial court held a hearing on the motion to abate on November 30, 2010.
The trial court denied the motion to abate on December 10, 2010. Cypress filed the
petition for writ of mandamus on February 24, 2011. Although Hernandez generally
asserts that this delay has resulted in a ―detrimental‖ change in his position, he has
offered no specific evidence supporting or explaining this allegation. The Texas
Supreme Court has held that a two-month delay in seeking mandamus relief is not
necessarily unreasonable. In re Laibe Corp., 307 S.W.3d at 318; see Strickland v.
6
Lake, 163 Tex. 445, 357 S.W.2d 383, 384 (Tex. 1962) (orig. proceeding). Based upon
the record before us, we similarly conclude that the delay was not unreasonable as a
matter of law and are therefore unpersuaded by Hernandez‘s argument that laches bars
our consideration of this petition for writ of mandamus. We now turn to the merits of this
original proceeding.
IV. THE NOTICE REQUIREMENT
Under the Texas Insurance Code, ―[a] person seeking damages in an action
against another person under this subchapter must provide written notice to the other
person not later than the 61st day before the date the action is filed.‖ TEX. INS. CODE
ANN. § 541.154(a) (West 2009). The notice must advise the recipient 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.‖ Id. § 541.154(b)
(West 2009); see Richardson v. Foster & Sear, LLP, 257 S.W.3d 782, 786 (Tex. App.—
Ft. Worth 2008, no pet.); Williams v. Hills Fitness Center, Inc., 705 S.W.2d 189, 192–93
(Tex. App.—Texarkana 1985, writ ref‘d n.r.e.).
The purpose of the sixty 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, 469 (Tex. 1992) (quoting Jim Walter Homes, Inc. v. Valencia,
690 S.W.2d 239, 242 (Tex. 1985)). Presuit notice provides the opportunity to limit
damage exposure through an offer of settlement, as contemplated by sections 541.156
through 541.159 of the Texas Insurance Code. See TEX. INS. CODE ANN. §§ 541.156–
.159 (West 2009); see also In re Behr, 2006 Tex. App. LEXIS 1588, at *7 (stating that
―without pre-suit notice, Behr is denied his right to limit his damage exposure through an
offer of settlement‖).
7
If the policy holder fails to provide the required notice, the Texas Insurance Code
allows the defendant insurer to abate further proceedings. The defendant insurer ―may
file a plea in abatement not later than the 30th day after the date the person files an
original answer.‖ TEX. INS. CODE ANN. § 541.155(a) (West 2009). If the plea is verified
and alleges that the defendant did not receive the required notice, and the plea is not
controverted by an affidavit filed before the eleventh day after the plea in abatement is
filed, then abatement of the action is automatic and does not require a court order. Id. §
541.155(c) (West 2009). The statute provides that if the plaintiff disputes abatement,
―[t]he 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.‖ Id. § 541.155(b) (West 2009). In either case, ―[a]n abatement . . .
continues until the 60th day after the date notice is provided in compliance with section
541.154.‖ Id. § 541.155(d) (West 2009). If the policy holder provides notice for a period
shorter than 60 days before filing suit and the suit is automatically abated, a court does
not need to ―formally grant another sixty-day abatement‖ if more than 60 days have
passed since the policy holder provided notice. See In re Alford Chevrolet–Geo, 997
S.W.2d 173, 178 (Tex. 1999) (orig. proceeding) (upholding trial court‘s decision that
formal abatement was unnecessary even though the plaintiffs failed to provide notice 60
days before filing their DTPA suit because the suit was automatically abated and ―by the
time [the trial court] issued its ruling, more than sixty days had passed since Plaintiffs
sent their notices‖); Kennard v. Indianapolis Life Ins. Co., 420 F. Supp. 2d 601, 610
(N.D. Tex. 2006) (same).5
5
In accordance with Texas cases construing the presuit notice requirement in the DTPA, the
overwhelming majority of cases construing the presuit notice requirement in the Texas Insurance Code
8
Cypress contends that mandamus relief is warranted because the Texas
Insurance Code requires presuit notice, and Hernandez‘s failure to give presuit notice
deprived Cypress of its right to limit its damage exposure through an offer of settlement.
In connection with this issue, Cypress contends that mandamus relief is warranted
because Hernandez did not plead and prove that presuit notice was rendered
―impracticable‖ by the impending expiration of the limitations period. Cypress argues
that neither Hernandez‘s petition nor his untimely notice letter constitutes presuit notice
under the Texas Insurance Code because neither contains the information required by
the Texas Insurance Code.
A. LIMITATIONS
We first address Cypress‘s contention that Hernandez was not excused from
complying with the statutory presuit notice requirement by virtue of an impending statute
of limitations. Hernandez argues that the presuit notice requirement was excused
because the statute of limitations rendered giving notice impracticable. This argument
is premised on one of the statutory exceptions to the presuit notice requirement in the
Texas Insurance Code. See TEX. INS. CODE ANN. §§ 541.154(c), 541.155(e) (West
hold that a presuit letter sent after the deadline, or even after suit has been filed, is sufficient to trigger the
abatement period. See, e.g., Encompass Office Solutions, Inc. v. Ingenix, Inc., No. 4:10-cv-00096, 2011
U.S. Dist. LEXIS 37916, at *46 (E. D. Tex. Mar. 31, 2011); Perez v. Nationwide Prop. & Cas. Ins. Co., No.
H-10-5224, 2011 U.S. Dist. LEXIS 22951, at *17 (S.D. Tex. Mar. 8, 2011); Lewis v. Nationwide Prop. &
Cas. Ins. Co., No. H-10-4950, 2011 U. S. Dist. LEXIS 22948, at *16-17 (S. D. Tex. Mar. 8, 2011); Carreon
v. Allstate Tex. Lloyds, No. G-11-027, 2011 U. S. Dist. LEXIS 14831, at *2 (S. D. Tex. Feb. 15, 2011);
Ross v. Nationwide Ins. Co., No. H-10-4076, 2011 U. S. Dist. LEXIS 69, at *8 (S. D. Tex. Jan. 3, 2011);
Rubio v. Allstate Tex. Lloyd’s, No. H-10-3058, 2010 U.S. Dist. LEXIS, at **5–6 (S. D. Tex. Dec. 16, 2010).
Under such circumstances, some courts have denied the motions to abate as moot where late notice was
sent but more than sixty days had passed. Chinese Civil Ctr. v. Catlin Specialty Ins. Co., No. H-10-4098,
2011 U. S. Dist. LEXIS 50334, at **5-6 (S. D. Tex. May 11, 2011); Lopez v. Allstate Tex. Lloyd’s, No. H-
10-4685, 2011 U. S. Dist. LEXIS 17540, at *7 (S. D. Tex. Feb. 23, 2011). In contrast, a small minority of
courts appear to hold that a demand letter sent after the statutory deadline cannot serve as notice
because it is not sent within the statutory period of time. See, e.g., Little v. Allstate Tex. Lloyd’s, No. 4:10-
cv-00939, 2010 U. S. Dist. LEXIS 64412, at *5 (S. D. Tex. June 29, 2010); Nichols v Nationwide Property
& Cas. Ins. Co., No. H-10-0824, 2010 U.S. Dist. LEXIS 38914, at *6 (S. D. Tex. Apr. 20, 2010); Boone v.
Safeco Ins. Co. of Ind., No. H-09-1613, 2009 U. S. Dist. LEXIS 86646, at **6-7 (S. D. Tex. Sept. 22,
2009).
9
2009). Under the statute, notice is ―not required‖ if giving notice is ―impracticable‖
because the action ―must be filed to prevent the statute of limitations from expiring,‖ or
―is asserted as a counterclaim.‖ Id. § 541.154(c) (West 2009). In order to qualify for the
exception to the notice requirement because of an impending statute of limitations, a
plaintiff must plead and offer some proof that the giving of notice was ―rendered
impracticable‖ by the impending expiration of the limitations period. Winkle Chevy-
Oldsmobile-Pontiac, Inc. v. Condon, 830 S.W.2d 740, 745 (Tex. App.—Corpus Christi
1992, writ dism‘d)); How Ins. Co. v. Patriot Fin. Servs., Inc., 786 S.W.2d 533, 538 (Tex.
App.—Austin 1990), overruled on other grounds by Hines, 843 S.W.2d at 469; see Cleo
Bustamante Enters., Inc. v. Lumbermens Mut. Cas. Co., No. Civ. A. SA-05-CA0433,
2005 U.S. Dist. LEXIS 13494, at *3 (W. D. Tex. June 30, 2005).
Hernandez contends that notice is not required when a party has a ―genuine
belief‖ that providing notice is not possible given the possible expiration of the statute of
limitations. TEX. INS. CODE ANN. § 541.154(c). Hernandez argues that the insurance
policy underlying this matter requires suit to be filed within two years and one day of the
date the cause of action accrues. Hernandez supports this allegation with the affidavit
of Amber L. Anderson. In response, Cypress asserts that Hernandez has failed to
plead and prove that limitations rendered presuit notice ―impracticable.‖6
6
Cypress asserts that Anderson‘s affidavit, and other materials furnished in Hernandez‘s
supplemental mandamus record, were not presented to the trial court for its consideration. We will not
consider Anderson‘s affidavit or any other materials that were not submitted to the trial court. See In re
Nabors, 276 S.W.3d 190, 194 n.5 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding); cf. Nguyen v.
Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (―The attachment of
documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal and,
therefore, the documents cannot be considered.‖); see also In re Sierra Title of Hidalgo Co., Nos. 13-10-
055-CV & 13-10-099-CV, 2010 Tex. App. LEXIS 1982, at **1-2 (Tex. App.—Corpus Christi Mar. 18, 2010,
orig. proceeding) (mem. op.).
10
As stated previously, a plaintiff must plead and offer some proof that the giving of
notice was ―rendered impracticable‖ by the impending expiration of the limitations
period. Winkle Chevy—Oldsmobile—Pontiac, Inc., 830 S.W.2d at 745; How Ins. Co.,
786 S.W.2d at 538; see also Perez v. Nationwide Prop. & Cas. Ins. Co., No. H-10-5224,
2011 U.S. Dist. LEXIS 22951, at *15–16 (S. D. Tex. Mar. 8, 2011); Lewis v. Nationwide
Prop. & Cas. Ins. Co., No. H-10-4950, 2011 U. S. Dist. LEXIS 22948, at *16–17 (S. D.
Tex. Mar. 8, 2011); Christopher v. Nationwide Cas. & Prop. Co., No. 10-CV-3797, 2011
U. S. Dist. LEXIS 7056, at *6 (S. D. Tex. Jan. 25, 2011). Based upon the applicable
standard, Hernandez‘s assertion of a ―genuine belief‖ that limitations might expire does
not constitute the pleading and proof required to establish the statutory limitations
exception to the presuit notice requirement. See, e.g., Leon v. Allstate Tex. Lloyd’s, No.
H-10-3574, 2011 U. S. Dist. LEXIS 60684, at **8–9 (S. D. Tex. June 6, 2011) (holding
that the claimant‘s assertion that the ―statute of limitations cannot be precisely
determined‖ was insufficient to show limitations rendered presuit notice impracticable);
Shaheen v. Allstate Tex. Lloyd’s, No. H-10-4580, 2011 U.S. Dist. LEXIS 22944, at *8 (S.
D. Tex. Mar. 8, 2011) (holding that the claimant‘s argument that the statute of limitations
―cannot be precisely determined‖ and ―limitations may have foreclosed Plaintiffs‘ claims‖
did not constitute pleading and proof that limitations rendered presuit notice
impracticable); Ross v. Nationwide Ins. Co., No. H-10-4076, 2011 U. S. Dist. LEXIS 69,
at *8 (S. D. Tex. Jan. 3, 2011) (holding that the claimant‘s assertion that determining the
statute of limitations was a ―moving target‖ because it depended on different facts, such
as when the claim was denied or whether the policy contained a limitations provision,
and thus the ―safest and most logical bet‖ was to proceed with suit, did not constitute
pleading and proof that limitations rendered presuit notice impracticable); Balboa v.
11
Allstate Tex. Lloyd’s, No. H-10-3634, 2010 U. S. Dist. LEXIS 136025, at *8 (S. D. Tex.
Dec. 23, 2010) (holding that assertions that the statute of limitations could not be
precisely determined was not sufficient to show that limitations rendered presuit notice
impracticable).
In this case, there is no pleading or proof that the statute of limitations rendered
the statutory presuit notice impracticable. Accordingly, we conclude that the limitations
exception to the notice requirement did not excuse Hernandez from providing presuit
notice in the instant case.
B. SUFFICIENCY OF NOTICE
Cypress next argues that neither Hernandez‘s petition nor his untimely notice
letter suffices to constitute presuit notice under the Texas Insurance Code because
neither contains the information required by the Texas Insurance Code. Hernandez
asserts otherwise. As stated previously, Hernandez sent an untimely notice letter which
provides, in relevant part:
Our firm represents Jose L. Hernandez in connection with the claim
for damages to the property located at 4701 Black Street, Weslaco, TX
78592. As you are well aware, Jose L. Hernandez made a claim against
his insurance policy for Hurricane Dolly related damages. Specifically,
Jose L. Hernandez‘s roof sustained extensive damage during the storm.
Water intrusion through the roof caused significant damage throughout the
interior of the home including, but not limited to, the ceilings, walls,
insulation, and flooring. Mr. Hernandez suffered some food loss.
Furthermore, Jose L. Hernandez‘s home sustained substantial structural
and exterior damage during the storm.
Cypress Texas Lloyds issued the policy to Jose L. Hernandez.
Crawford & Company and Amanda M. Montoya adjusted the claim.
Montoya performed a cursory inspection upon the property. Therefore,
Montoya‘s report was incomplete and did not include all of Mr.
Hernandez‘s Hurricane Dolly related damages. As a result, Mr.
Hernandez was significantly underpaid on his claim for damages. To this
date, Jose L. Hernandez has yet to receive full payment under the
insurance policy.
12
Undoubtedly, you are aware of your liability to our client under the
Texas Insurance Code, which specifically covers unfair settlement of
claims. Specifically, you are liable to Jose L. Hernandez, jointly and
individually, for the following violations of the Texas Insurance Code . . . .
The letter further specifies several alleged violations of the Texas Insurance Code and
details Hernandez‘s claim for damages in the amount of $182,413.00 in economic
damages, $50,000.00 in mental anguish damages, and $72,965.20 for expenses
including attorney‘s fees.
The Texas Insurance Code requires that presuit notice include basic information,
including the ―specific complaint‖ and the amount of actual damages and expenses
sought. TEX. INS. CODE ANN. § 541.154(b)(1), (b)(2). Texas courts interpreting the
statute or the similar provision in the Texas Deceptive Trade Practices Act have held
that notice letters containing specific factual allegations supporting the causes of action,
or at least enough information to imply those facts, satisfies the notice requirement.
See Richardson, 257 S.W.3d at 788 (stating that the notice requirement under the
DTPA sets a ―fairly low threshold‖); Lester v. Logan, 893 S.W.2d 570, 573 (Tex. App.—
Corpus Christi 1994, writ denied) (holding that a demand letter constitutes sufficient
presuit notice under the DTPA ―if it identifies the nature of the consumer‘s complaint and
the various amounts required to make him or her whole‖); Village Mobile Homes, Inc. v.
Porter, 716 S.W.2d 543, 547 (Tex. App.—Austin 1986, writ ref‘d n.r.e.) (holding that
presuit demand constituted sufficient notice under the DTPA where it itemized the
damages necessary to compensate appellee and warned that appellant would file a
DTPA cause of action should the defendant refuse to settle because ―[a]ppellee is not
required . . . to disclose the theory of her cause of action; nor is she required to advise
appellant of the particular sections she believes it has violated‖); Williams, 705 S.W.2d
13
at 191–93 (holding that the plaintiff‘s four-paragraph notice letter satisfied the notice
requirement of the DTPA, even though the allegations were general and the court had
to imply the specific facts supporting the cause of action). An informative discussion
regarding the former notice provision of the DTPA explains the competing
considerations applied by a court in considering whether presuit notice is effective:
The legislative direction to the courts in Section 17.44 to construe and
apply the provisions of the Act in such way as to promote the Act‘s
underlying purposes tempers the provision of Section 17.50A(a) to a
requirement that advice as to actual damages and attorney‘s fees be as
accurate and informative as the consumer can reasonably make it under
the circumstances of the case. An underlying purpose of Section
17.50A(a) is to encourage settlements by affording a potential defendant
an opportunity to limit damages and expense by making a settlement
offer. This section confers a valuable right upon a potential defendant
which should not be impaired by doubtful construction. Neither should
form be allowed to prevail over substance; that is to say, that a harmless
failure or deficiency in notice should not be allowed to deprive an injured
person from prosecuting a claim. The sufficiency of notice of a specific
complaint may properly be determined by looking to facts indisputably
known to the potential defendant. . . . The Center could not have been
uncertain or in doubt as to the specific complaint, the injury, the monetary
damage, attorney‘s fees or expense then claimed. The notice letter
combined with what was unquestionably known to the Center substantially
complied with the purposes and requirements of Section 17.50A(a).
Williams, 705 S.W.2d at 193.
In Richardson v. Foster & Sear, L.L.P., the Fort Worth Court of Appeals
explained that the notice letter in that case, ―while not a model of clarity and eloquence,‖
stated in enough detail ―for this court—knowing nothing of [the] claims and allegations
except what [is] asserted in [the] letter—to grasp the basis of [the] complaints against
Foster & Sear.‖ 257 S.W.3d at 786. The gravamen of the notice letter included the
factual allegations that, after agreeing to represent the claimant‘s interests in whatever
claims his deceased father had for asbestos exposure, the defendants settled those
claims without the claimant‘s permission and refused to divulge his share of the
14
settlement proceeds. Id. The claimant included specific damage demands and
included specific causes of action. Id.
Cypress contends, citing Boone v. Safeco Insurance Company of Indiana, No. H-
09-1613, 2009 U. S. Dist. LEXIS 86646 (S. D. Tex. Sept. 22, 2009) and In re Liberty
Mutual Fire Insurance Company, 2010 Tex. App. LEXIS 3063, that Hernandez‘s letter
―utilizes the exact same language‖ and is ―VERBATIM‖ the same language found by the
Southern District of Texas and the Fourteenth Court of Appeals to be ―deficient.‖ In
Liberty Mutual Fire Insurance Company, the two-page notice letter states, in relevant
part:
While our investigation is still undergoing [sic], it appears that Liberty
Mutual Fire Insurance Company (―Liberty Mutual‖) is in violation of the
Texas Insurance Code Section 541.001 et seq. (Unfair Competition and
Practices) and Texas Business and Commerce Code Section 17.46 et
seq. (Texas Deceptive Trade Practices–Consumer Protection Act), and
that you have breached the terms of the insurance contract of insurance
[sic] with our client‘s decedents, Mary Ann and R. Wayne Hurt. Adjusters
employed by your company appear to have violated the Texas Insurance
Code with respect to their own acts and omissions in the handling of the
Hurt Estates‘ claims. Because of these violations of law, Mr. Hurt, as
Independent Administrator of the Estate of Mary Ann Hurt and of the
Estate of R. Wayne Hurt[,] has sustained and continues to sustain
significant damages, including but not limited to property damage,
diminution of property value, mental anguish, attorney fees and other
consequential damages.
2010 Tex. App. LEXIS 3063, at **11–12 (considering the sufficiency of notice under the
DTPA and Texas Insurance Code). The Fourteenth Court of Appeals noted that the
notice letter specified monetary damages in an amount representing the difference
between Liberty Mutual‘s alleged underpayment and the policy limits. Id. at *12. The
letter also sought attorney‘s fees in the amount of $401,687.68. Id. The court stated
that this letter could not serve as presuit notice because it did not include any specific
factual allegations supporting the causes of actions, did not specify the specific
15
damages sustained due to Liberty Mutual‘s actions, and did not specify the amount of
damages the plaintiff sought for mental anguish. Id. at *14. In summary, the court
concluded that the letter did not include enough detail for the court, knowing nothing of
the plaintiff‘s claims and allegations except what he asserted in his letter, to grasp the
basis of his complaints. Id. at **14–15.
In Boone v. Safeco Insurance Company, the United States District Court likewise
found a presuit notice insufficient:
The Boones‘ April 24, 2009 notice letter to Safeco contains no
factual information about the cause of action. . . The letter is very general.
It states that the Boones did not receive full payment under the insurance
policy and that Safeco and its adjuster, George Echols, were liable for
―misrepresenting and/or failing to discuss with Donna Boone and Dennis
K. Boone pertinent facts or policy provisions relating to coverage as an
issue‖; for ―failing to acknowledge with reasonable promptness, pertinent
communications with respect to the claim arising under its policy‖; ―failing
to adopt reasonable standards for prompt investigation of the claim arising
under its policy‖;‖not attempting in good faith to effectuate prompt, fair and
equitable settlement of the claim submitted in which liability has become
reasonably clear‖; ―failing to provide promptly to a policyholder a
reasonable explanation of the basis in the insurance policy, in relation to
the facts or applicable law for denial of the claim or for the offer of a
compromise settlement‖; ―failing to affirm or deny coverage of claim to a
policyholder within a reasonable time after proof of loss statements have
been completed‖; and ―refusing to pay the claims without conducting a
reasonable investigation based upon all available information‖ . . . The
letter parroted the Texas Insurance Code violations. Although it did
identify the damages sought—$ 1,427,643.00 in economic damages, $
50,000 in mental anguish damages, and $ 542,547.67 in expenses and
attorneys‘ fees—the letter did not identify the facts or provide any basis for
the court to imply the facts. The letter was not sufficient notice under
Section 541.154(b) of the Texas Insurance Code and did not trigger the
60-day abatement period.
2009 U. S. Dist. LEXIS 86646 at **8–10.
As an initial matter, and based on the foregoing excerpts, we cannot agree with
Cypress that the letter in this case is exactly analogous to the letter in Liberty Mutual or
the letter in Boone. We note that the requirements for sufficiency of the presuit notice
16
have been extensively litigated, and the majority of cases apply a very low threshold for
the presuit notice requirements. Compare Perez, 2011 U.S. Dist. LEXIS 22951, at *15–
16 (holding notice was sufficient where it alleged that the adjuster spent inadequate
time examining the damage to the plaintiff‘s home, including the roof, and allowing only
minimum repairs to the roof in the estimate because the notice identified the facts or
provided a basis to imply the facts), and Lewis, 2011 U. S. Dist. LEXIS 22948, at *16–
17 (holding notice was sufficient where it alleged that adjuster failed to include damages
to the home in the inspection because it identified the facts or provided a basis to imply
the facts), and Cortez v. Allstate Tex. Lloyd’s, No. H-10-4610, 2011 U.S. Dist. 22327, at
**5–6 (S. D. Tex. Mar. 7, 2011) (holding notice was sufficient where it alleged that the
adjuster spent inadequate time examining the damage to the plaintiff‘s home, including
the roof, and allowing only minimum repairs to the roof in the estimate because the
notice identified the facts or provided a basis to imply the facts), and Gardner v. Certain
Underwriters at Lloyds, No. H-10-5003, 2011 U.S. Dist. LEXIS 15930, at *9 (S.D. Tex.
Feb. 17, 2011) (holding notice was sufficient even though it contained ―scant factual
information‖ about the cause of action where it included claims that the inspection
omitted certain damaged items and undervalued covered damage), and Rodriguez v.
Allstate Texas Lloyd’s, No. H-10-4611, 2011 U. S. Dist. LEXIS 15868, at *8 (S. D. Tex.
Feb. 17, 2011) (holding notice was sufficient even though it contained ―scant‖ factual
information about the cause of action but alleged that plaintiffs had not been able to
obtain a copy of the estimate), and Rubio v. Allstate Tex. Lloyd’s, No. H-10-3058, 2010
U.S. Dist. LEXIS, at **5–6 (S. D. Tex. Dec. 16, 2010) (holding notice letter was sufficient
where it alleged that the adjuster spent inadequate time examining the damage to the
plaintiffs‘ home, including the roof, and allowed only minimum repairs to the roof in the
17
estimate), with Pilgrim Rest Baptist Church v. Hartford Lloyds Ins. Co., No. H-10-2067,
2011 U. S. Dist. LEXIS 16984, at **4–5 (S. D. Tex. Feb. 17, 2011) (holding that a notice
letter was insufficient where it provided ―no facts whatsoever‖ about the claim and only
stated that the defendant had not paid the claim and the delay in payment gave rise to
the claims), and Ross, 2011 U. S. Dist. LEXIS 69, at *8 (holding that the contents of the
plaintiff‘s petition did not serve as presuit notice because the petition did not provide
reasonable detail of ―the specific complaint‖ or the amount of actual damages and
expenses, including attorney‘s fees sought by the plaintiff), and Corona v. Nationwide
Prop. & Cas. Ins. Co., No. H-10-1651, 2010 U. S. Dist. LEXIS 64477, at **3–4 (S. D.
Tex. June 29, 2010) (holding notice letter was insufficient where it briefly asserted
damages caused by Hurricane Ike and alleged failure to include all damages in claim
because the allegations were highly subjective and conclusory), and Little v. Allstate
Texas Lloyd’s, No. 4:10-CV-00939, 2010 U. S. Dist. LEXIS 64412, at *6 (S.D. Tex. June
29, 2010) (holding that a notice letter was insufficient where it contained neither factual
information about the cause of action nor provided any basis for the court to imply the
facts), and Nichols v Nationwide Property & Cas. Ins. Co., No. H-10-0824, 2010 U.S.
Dist. 38914, at *6 (S. D. Tex. Apr. 20, 2010) (holding that a notice letter was insufficient
where it contained no factual information about the cause of action).
In the instant case, the presuit notice letter provided the factual basis for
Hernandez‘s claims against Cypress and identified Hernandez‘s causes of action and
specified his alleged damages. Even if Cypress knew nothing about Hernandez‘s
claims other than what was asserted in the letter, the letter was sufficient for Cypress to
grasp the basis of Hernandez‘s complaints against it. See Richardson, 257 S.W.3d at
788; Williams, 705 S.W.2d at 191-93; see also Perez, 2011 U.S. Dist. 22951, at *15–16;
18
Lewis, 2011 U. S. Dist. LEXIS 22948, at *16–17; Cortez, 2011 U.S. Dist. 22327, at **5–
6; Gardner, 2011 U.S. Dist. LEXIS 15930, at *9; Rubio, 2010 U.S. Dist. LEXIS, at **5–6.
Moreover, the sufficiency of the notice is amplified by looking to facts indisputably
known to Cypress through the course of its investigation and payment of Hernandez‘s
claim. See Williams, 705 S.W.2d at 191-93. Cypress could not have been uncertain or
in doubt as to Hernandez‘s ―specific complaint‖ and the amount of actual damages and
expenses sought. See TEX. INS. CODE ANN. § 541.154(b)(1), (b)(2).
C. CONCLUSION
Because the provision of presuit notice was not rendered ―impracticable‖ by the
impending expiration of the limitations period, Hernandez was required to provide
Cypress with presuit notice. The notice provided by Hernandez on June 29, 2010, met
the threshold requirements established by the Texas Insurance Code. See id.;
Richardson, 257 S.W.3d at 788; Williams, 705 S.W.2d at 191-93; see also Perez, 2011
U.S. Dist. 22951, at *15–16; Lewis, 2011 U. S. Dist. LEXIS 22948, at *16–17; Cortez,
2011 U.S. Dist. 22327, at **5–6; Gardner, 2011 U.S. Dist. LEXIS 15930, at *9; Rubio,
2010 U.S. Dist. LEXIS, at **5–6. Because more than sixty days had passed after notice
was given, the trial court was not required to formally abate the litigation. Accordingly,
we conclude the trial court did not abuse its discretion in refusing to abate the
underlying litigation. We overrule Cypress‘s first issue.
V. EXAMINATION UNDER OATH
In its second issue, Cypress contends that mandamus relief is warranted
because Hernandez‘s failure to submit to an examination under oath pursuant to the
negotiated terms of the insurance policy deprives Cypress of its contractual rights
without an adequate remedy by appeal. Although Cypress did not request that
19
Hernandez provide an examination under oath during its investigation of his claim, it did
request that Hernandez submit to an examination under oath by letters sent on July 13,
2010, and August 2, 2010. These letters were sent after suit had been filed but before
Cypress filed its answer. Hernandez, in contrast, contends that Cypress is not entitled
to an examination under oath because it did not request one prior to making its claims
decision and ―[n]o case in Texas has ever held that an insurer is entitled to abatement
after suit has been filed and after the insurer had already made a claims decision
without requesting an examination under oath.‖ Hernandez also asserts that Cypress
has the right to examine Hernandez by way of deposition in the pending civil suit.
Insurance policy provisions requiring an insured to submit to an examination
under oath as a condition precedent to sustaining a suit on the policy are valid. See
Philadelphia Underwriters’ Agency of Fire Ins. Ass’n v. Driggers, 111 Tex. 392, 238
S.W. 633, 635 (Tex. 1922); Trahan v. Fire Ins. Exch., 179 S.W.3d 669, 673–674 (Tex.
App.—Beaumont 2005, no pet.); Lidawi v. Progressive County Mut. Ins. Co., 112
S.W.3d 725, 734 n.5 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Perrotta v.
Farmers Ins. Exch., 47 S.W.3d 569, 573–74 (Tex. App.—Houston [1st Dist.] 2001, no
pet.); State Farm Gen. Ins. Co. v. Lawlis, 773 S.W.2d 948, 949 (Tex. App.—Beaumont
1989, no writ) (per curiam); see also Rossco Holdings, Inc. v. Lexington Ins. Co., No. H-
09-cv-04047 2011, U.S. Dist. LEXIS 39011, at **11–12 (S.D. Tex. Apr. 11, 2011).
Where an insured fails to comply with a condition precedent requiring the insured to
submit to an examination under oath, the remedy is abatement of the case. See
Driggers, 238 S.W. at 635; In re Foremost County Mut. Ins. Co., 172 S.W.3d at 135;
Lidawi, 112 S.W.3d at 735; see also In re Slavonic Mut. Fire Ins. Ass’n, 308 S.W.3d
556, 565 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) (abating a lawsuit
20
where the insured failed to comply with appraisal requirements of policy as a condition
precedent to suit).
The conditions under which an insurance company may conduct an examination
under oath are governed by the insurance contract. Trahan., 179 S.W.3d at 673–74;
Lawlis, 773 S.W.2d at 949. The principles courts use when interpreting an insurance
policy are well established. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London,
327 S.W.3d 118, 126 (Tex. 2010). Those principles include construing the policy
according to general rules of contract construction to ascertain the parties‘ intent. Id.
We examine the language of the policy because we presume parties intend what the
words of their contract say, and we review the entire agreement and seek to harmonize
and give effect to all provisions so that none will be meaningless. Id. Courts strive to
honor the parties‘ agreement and not remake their contract by reading additional
provisions into it. Id.; see Nat’l Union Fire Ins. Co. of Pittsburg, PA v. Crocker, 246
S.W.3d 603, 606 (Tex. 2008).
The insurance policy at issue provides, under a subheading entitled ―Duties After
Loss‖:
a. Your Duties After Loss. In case of a loss to covered property
caused by a peril insured against, you must:
(1) give prompt written notice to us of the facts relating to the
claim.
(2) notify the police in case of loss by theft.
(3) (a) protect the property from further damage.
(b) make reasonable and necessary repairs to protect the
property.
(c) keep an accurate record of repair expenses.
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(4) furnish a complete inventory of damaged personal property
showing the quantity, description and amount of loss. Attach all bills,
receipts and related documents which you have that justify the figures in
the inventory.
(5) as often as we reasonably require:
(a) provide us access to the damaged property.
(b) provide us with pertinent records and documents we
request and permit us to make copies.
(c) submit to an examination under oath and sign and
swear to it.
(6) send to us, if we request, your signed sworn proof of loss. . .
b. Our Duties After Loss.
(1) Within 15 days after we receive your written notice of claim,
we must:
(a) acknowledge receipt of the claim.
If our acknowledgement of the claim is not in writing,
we will keep a record of the date, method and content
of our acknowledgement.
(b) begin any investigation of the claim.
(c) specify the information you must provide in
accordance with ―Your Duties After Loss‖ (item 3.a above).
We may request more information, if during the
investigation of the claim such additional information
is necessary.
(2) After we receive the information we request, we must notify
you in writing whether the claim will be paid or has been denied or
whether more information is needed:
(a) within 15 business days; or
(b) within 30 days if we have reason to believe the loss
resulted from arson.
22
(3) If we do not approve payment of your claim or require more
time for processing your claim, we must:
(a) give the reasons for denying your claim, or
(b) give the reasons we require more time to process your
claim. But we must either approve or deny your claim within 45 days after
requesting more time.
The policy also provides, under the heading ―Suit Against Us,‖ that ―[n]o suit or action
can be brought unless the policy provisions have been complied with.‖
In Foremost Mutual Insurance Company, the Beaumont Court of Appeals
granted mandamus relief where the trial court denied the insurer‘s motion to abate due
to the insured‘s failure to submit to an examination under oath. See 172 S.W.3d at
130. The insured had refused to cooperate with the insurer‘s requests for an
examination under oath during the investigation of the claim. Id. at 131. After the
insured declined to cooperate, the insurer ultimately denied coverage, and the insured
filed suit. Id. The insurer sought an abatement of the underlying suit to obtain the
examination. Id. After the trial court denied the company‘s plea in abatement, the
company petitioned for a writ of mandamus. Id. Reasoning that the insurer‘s
contractual right to obtain an examination under oath is ―a right long recognized in
Texas,‖ the court concluded that enforcing such clauses allows an insurer to conduct a
more thorough investigation before it must make a determination on accepting or
rejecting a claim. Id. The court conditionally granted mandamus relief to require the
examination under oath to ―spare private parties and the public the time and money
utterly wasted enduring eventual reversal of improperly conducted proceedings.‖ Id.
(quoting In re Prudential, 148 S.W.3d at 136).
23
In this case, Cypress concluded its investigation and paid Hernandez‘s claim,
and Hernandez filed suit against Cypress before Cypress requested that Hernandez
submit to an examination under oath. The insurance policy requires that Hernandez
―must,‖ as often as Cypress ―reasonably require[s],‖ ―submit to examination under oath
and sign and swear to it.‖ However, based on the plain language of the contract, the
insured‘s duties under the contract exist during the investigation of the claim, and
nothing in the contract suggests that these duties continue after disposition of a claim.
We conclude the trial court did not err in refusing to abate the underlying action
to allow Cypress to take an examination under oath where the claim had been
investigated and paid, and the request for an examination was made after litigation had
been filed. See PJC Brothers, LLC v. S&S Claims Serv., Inc., 267 F.R.D. 199, 201–02
(S. D. Tex. 2010) (denying a motion to abate based on the failure of an insured to
submit to an examination under oath where the insurer requested the examination after
the inception of suit). Requiring the suit to be abated under these circumstances would
frustrate an objective of our legal system to resolve lawsuits with ―great expedition and
dispatch and at the least expense‖ to the litigants. See TEX. R. CIV. P. 1; Henry Schein
v. Stromboe, 102 S.W.3d 675, 693 (Tex. 2002). Cypress‘s remedy is to take
Hernandez‘s deposition as provided by the Texas Rules of Civil Procedure. See TEX.
R. CIV. P. 192.1 (delineating the permissible forms of discovery); R. 199 (providing for
depositions on oral examination). Cypress has not provided this Court or the trial court
with any explanation regarding why such a deposition would not be equally sufficient
as an examination under oath to enable it to obtain the material facts to allow it to
decide on its obligations or to protect against any false claims. See Clafin v.
Commonwealth Ins. Co., 110 U.S. 81, 94–95 (1884) (discussing the purpose of
24
clauses requiring examinations under oath). Accordingly, we conclude that the trial
court did not abuse its discretion in refusing to abate the underlying action for purposes
of requiring Hernandez to submit to an examination under oath. We overrule
Cypress‘s second issue.
VI. CONCLUSION
The Court, having examined and fully considered the petition for writ of
mandamus, the response, and the reply, is of the opinion that Cypress has not shown
itself entitled to the relief sought. The trial court did not abuse its discretion in refusing
to abate the underlying litigation. Accordingly, the petition for writ of mandamus is
DENIED. See TEX. R. APP. P. 52.8(a).
GREGORY T. PERKES
JUSTICE
Delivered and filed this
15th day of August, 2011.
25