Ansah et al v. Nationwide Property and Casualty Insurance Company, No. 4:2023cv02488 - Document 9 (S.D. Tex. 2023)
Court Description: MEMORANDUM OPINION AND ORDER - Plaintiffs failed to provide Defendant with a presuit notice stating the specific amount alleged to be owed. Defendant Nationwide Property and Casualty Insurance Company's 5 Opposed MOTION to Deny Plaintiffs' Claim for Attorneys' Fees is therefore GRANTED. Plaintiffs will not be awarded attorneys' fees incurred in this action starting on July 7, 2023. (Signed by Judge Sim Lake) Parties notified.(SheilaRAnderson, 4)
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Ansah et al v. Nationwide Property and Casualty Insurance Company Doc. 9 Case 4:23-cv-02488 Document 9 Filed on 09/15/23 in TXSD Page 1 of 7 United States District Court Southern District of Texas ENTERED September 15, 2023 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION HENRY & LYDIA ANSAH, Plaintiffs, v. NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. § § § § § § § § § § Nathan Ochsner, Clerk CIVIL ACTION NO. H-23-2488 MEMORANDUM OPINION AND ORDER Henry and Lydia Ansah (collectively, "Plaintiffs") brought s action against Nationwide Property and Casualty Insurance Company ("Defendant") . 1 Plaintiffs assert breach of contract and related claims based on Defendant's alleged underpayment on a property insurance policy claim. 2 Pending before the court is Defendant Nationwide Property and Casualty Insurance Company's Opposed Motion to Deny Plaintiffs' Claim for Attorneys' Fees ("Defendant's Motion to Preclude") ( Docket Entry No. 5). For the reasons stated below, Defendant's Motion to Preclude will be granted. Plaintiff's Original Petition - Expedited Action Under TRCP 169 ("Complaint"), Exhibit A to Notice of Removal, Docket Entry No. 1-1, p. 4. For purposes of identification, all page numbers refer to the pagination imprinted at the top of the page by the court's Electronic Case Filing ("ECF") system. 1 2 Id. at 6 1 10-11, p. 16 51. Dockets.Justia.com Case 4:23-cv-02488 Document 9 Filed on 09/15/23 in TXSD Page 2 of 7 I. Factual and Procedural Background Plaintiffs Defendant.3 purchased a property insurance policy from Plaintiffs allege that they "suffered a significant loss with respect to the property at issue" on February 17, 2021.4 Plaintiffs allege that "Defendant failed to properly adjust the claim and summarily improperly knowledge and evidence paid the serious damages. "5 claim with obvious On July 30, 2022, Plaintiffs sent a Damages Estimate from an adjuster they hired, which concluded that the "Replacement Cost Value" of the loss was $102,954.66. 6 On May 30, 2023, Plaintiffs sent a Demand Letter to Defendant, requesting $56,185.98 in $88,402.22 in "Recoverable Cost Value," "Recoverable Depreciation (Damage Content)," $78,936.05 in "Actual Cash Value," and $10,000.00 in "Attorney fees and costs. "7 June 12, Plaintiffs filed this action 13 days later on 2023, in the 190th Judicial District Court in Harris County, Texas. 8 3 5 Id. at 6 <JI 10. at 4 <JI 2, p. 6 Id. at 6 <JI 11. <JI 10. R. Martinez Consulting LLC's Damages Estimate ("Damages Estimate"), Exhibit A to Plaintiff's Response to Defendant's Opposed Motion to Deny Plaintiff's Claim for Attorneys' Fees ("Plaintiffs' Response"), Docket Entry No. 7-1, p. 20; Plaintiff's Estimate Email, Exhibit A-1 to Plaintiffs' Response, Docket Entry No. 7-2. 6 Demand Letter, Exhibit A to Defendant Nationwide Property and Casualty Insurance Company's Reply in Support of Its Opposed Motion to Deny Plaintiffs' Claim for Attorney's Fees ("Defendant's Reply"), Docket Entry No. 8-1, p. 1. 7 Complaint, Exhibit A to Notice of Removal, Docket Entry No. 1-1, p. 3. 8 -2- Case 4:23-cv-02488 Document 9 Filed on 09/15/23 in TXSD Page 3 of 7 Defendant filed its Answer on July 7, 2023. 9 Defendant pleaded that Plaintiffs did not provide adequate presuit notice as required by Tex. Ins. Code The same 542A.003 and 542A.007(d). 10 day, Defendant removed the action to this court.11 its Motion to Preclude on August 2, 2023. 12 Defendant filed Defendant argues that Plaintiffs cannot recover attorneys' fees incurred in this case after the filing of Defendant's Answer on July 7, 2023, because Plaintiffs did not provide adequate presuit notice at least 61 days before filing § 542A.007(d). 13 this action as required by Tex. Ins. Code Plaintiffs responded on August 23, 2023, arguing that their Damages Estimate sent on July 30, 2 022, satisfied § 542A. 007(d). 14 Defendant replied on August 28, 2023, arguing that the Damages Estimate does not qualify. 15 II. Texas insurance Insurance claimant Legal Standard Code to give § 542A.003(a) presuit requires notice to an a covered insurer . 16 Defendant's Original Answer ("Defendant's Answer"), Exhibit B to Notice of Removal, Docket Entry No. 1-2. 9 10 11 Id. at 1-2 <JI A. Notice of Removal, Docket Entry No. 1. uDefendant's Motion to Preclude, Docket Entry No. 5. 13 Id. at 4 <Jl<Jl 10-11. 14 Plaintiff's Response, Docket Entry No. 7, pp. 3-4 <JI 6. 15 Defendant's Reply, Docket Entry No. 8, pp. 1-2 <j[ 2. There is no dispute that Plaintiffs' claim falls within the purview of Chapter 542A. 16 -3- Case 4:23-cv-02488 Document 9 Filed on 09/15/23 in TXSD Page 4 of 7 Section 542A.003(b) requires that the notice must include "(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." Upon timely motion by the defendant, "[t]he court shall abate the action if the court finds that the [defendant] . . . did not, for any reason, Section 542A.003." receive a presuit notice complying with § 542A.005(b)(1). In addition, § 542A.007(d) allows the defendant to seek preclusion of attorney's fees if it timely pleads and proves that it was entitled to but did not receive a presuit notice "stating the specific amount alleged to be owed by the insurer under Section 542A.003(b)(2)" at least 61 days prior to suit. 17 Defendant argues that § 542A.003 makes "presuit notice" a defined term such that § 542A.007(d) also implicitly requires preclusion of attorney's fees where presuit notice lacked other information listed in § 542A.003. A few courts appear to endorse Defendant's argument, but others have stated that attorney fee preclusion is only available where there is no notice stating the § 542A.007 (d) sum. Compare Jordan Industries, LLC v. Travelers Indemnity Co. of America, Civil Action No. 7:21-cv-00114-O, 2022 WL 2719630, at *5 (N.D. Tex. April 12, 2022) with Mount Canaan Missionary Baptist Church v. Westchester Surplus Lines Insurance Co., Civil Action No. 4:19-CV-00660, 2019 WL 13114309, at *4 (S.D. Tex. Aug. 13, 2019) ("(O]nly compliance with Section 542A.003(b) (2)'s presuit notice of the specific amount alleged by the claimant is required under Section 542A.007(d) in order for the claimant to remain eligible for attorney's fees."). The court need not resolve this issue since Plaintiffs' cost estimate is not a presuit notice that complies with § 542A. 003(b)(2). 17 -4- Case 4:23-cv-02488 Document 9 Filed on 09/15/23 in TXSD Page 5 of 7 III. Analysis Defendant timely pleaded that it was entitled to presuit notice and that it did not rece It is undisputed that it.18 Plaintiffs sent the May 30, 2023, Demand Letter less than 61 days before they filed this action. Plaintiffs' Damages Estimate The only question is whether quali s. Ins. Tex. Code § 542A.007(d) bars attorney's fees absent a "presuit notice stating the specific amount alleged to be owed by the insurer" "on the claim for damage to or loss of covered property." §§ 542A.007(d), 542A.003(b)(2). Tex. Ins. Code According to Defendant the claims process was still ongoing when Plaintiffs sent their Damages Estimate, and Plaintiffs do not allege otherwise.19 The court has previously held that a damage estimate sent prior to an insurer's final coverage decision does not serve as presuit notice "since an insured's legal claim generally arises when coverage is denied." Gilbane Building Co., Inc. v. Swiss Re Corporate Solutions Elite Insurance Co., Civil Action No. H-22-2369, 2023 WL 2021014, at *2 (S.D. Tex. Feb. 15, 2023) (citing Tadeo as Trustee of John E. Milbauer Trust v. Great Northern No. 3:20-CV-00147-G, Insurance Co., Civil Action 2020 WL 4284710, at *9 {N.D. Tex. July 27, 2020)). Defendant's Answer, Exhibit B to Notice of Removal, Docket Entry No. 1-2, pp. 1-2 Tl A. 18 19 Defendant's Reply, Docket Entry No. 8, p. 3 Tl 6. 5- Case 4:23-cv-02488 Document 9 Filed on 09/15/23 in TXSD Page 6 of 7 The July 30, 2022, Damages Estimate also does not appear to match the sums that Plaintiffs ultimately demanded. Plaintiffs' Damages Estimate lists a Replacement Cost Value of $102,954.66, and their Demand Letter requests $88,402.22 in Recoverable Cost Value, $56,185.98 in Recoverable Depreciation, and $78,936.05 Cash Value. 20 Actual None of these amounts nor any combination thereof correspond to the $102,954.66 from Plaintiffs' Damages Estimate. 21 The Damages Estimate therefore cannot satisfy § 542A. 003 (b) (2), which expressly requires presu notice to state "the specific amount alleged to be owed" (emphasis added). Plaintiffs cite Nisha Hospitality LLC v. Scottsdale Insurance Co., Civil Action No. 3:22-cv-1811-X, 2022 WL 17417995, at *1 (N.D. Tex. Dec. 2, 2022) for the proposition that a damage estimate from the insured' s adjuster satisf s § 542A. 003 (b) (2). For the reasons explained above, the court respectfully disagrees that an estimate submitted during the cla process is a suit notice. But even if such estimates could qualify as a general matter, the damage estimate in the Nisha case matched the amount ultimately demanded. Id. at *1. Because Plaintiffs never provided Defendant with a presuit notice stating "the specific amount alleged to be owed," the court Demand Letter, Exhibit A to Defendant's Reply, Docket Entry No. 8-1, p. 1. The Complaint does not specify any particular sums. 20 Damages Estimate, Exhibit A to Plaintiffs' Response, Docket Entry No. 7-1, p. 20. 21 -6 Case 4:23-cv-02488 Document 9 Filed on 09/15/23 in TXSD Page 7 of 7 "may not award to [Plaintiffs] any attorney's fees." Code§ 542A.007(d). be granted. Tex. Ins. Defendant's Motion to Preclude will therefore This appl to attorney's fees incurred in this action starting on the date Defendant filed s Answer July 7, See id. 2023. IV. Conclusion and Order Plaintiffs failed to provide Defendant with a presuit notice stating the specific amount alleged to be owed. Defendant Nationwide Property and Casualty Insurance Company's Opposed Motion to Deny Plaintiffs' Claim for Attorneys' Fees (Docket Entry No. 5) is therefore GRANTED. Plaintiffs will not be awarded attorneys' fees incurred in this action starting on July 7, 2023. SIGNED at Houston, Texas, on this 15th day of September, 2023. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -7-
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