Based on what the client has provided to the attorney, the attorney can then compare the acts or non-acts to the applicable statutes and do the “legal” part of the pre-suit notice letter. It is important for the letter to be sent certified mail as required by the statute.
This letter of intent to sue shall serve as a formal notice that Albert Smith intends to commence a lawsuit against you due to the following: Unauthorized removal of hedges and fencing located at the rear of his home at 123 Fake Ave., Capital City. I. The Plaintiff. Albert Smith (the “Plaintiff”).
When the notice letter does not resolve the claim and a lawsuit has to be filed, it is the plaintiff’s burden to plead the pre-suit notice was given as required and this can be done by a specific pleading that statutory notice has been given. Unless the defendant says otherwise, this statement is sufficient.
Tarrant County insurance attorneys should know about pre-suit notice requirements. But for those who don’t, here is some information to keep in mind. Both the Deceptive Trade Practices Act (DTPA), Section 17.505 and the Insurance Code, Section 541.154 require a 60 day pre-suit notice be given.
The causation standard that a DTPA consumer must prove is that the representations were a “producing cause” of their injuries. Additionally, the DTPA defendant's actions must be “in connection with” the transaction.
Other than the Texas Attorney General, only consumers are allowed to file under the DTPA. The phrase "consumer" means an individual, partnership, corporation, or governmental entity who seeks or acquires by purchase or lease any goods or services.
Some examples of unfair trade methods are: the false representation of a good or service; false free gift or prize offers; non-compliance with manufacturing standards; false advertising; or deceptive pricing.
When serious enough, these misleading advertisements and pricing claims can be prosecuted in criminal court and sued in civil courts.
Before you can file a medical malpractice lawsuit in the state's court system, Texas Civil Practice & Remedies Code section 74.051 requires that you or your attorney provide written notice of the claim (via certified mail, return receipt requested) to each health care provider to be named in the suit, at least 60 days before you file.
Once a medical malpractice lawsuit has been filed in Texas, and the defendant health care provider has filed an "answer" in response to the lawsuit, the plaintiff and his or her attorney must, within 120 days, serve on the defendant an "expert report" including the expert's curriculum vitae ...
The serving of this 60-day notice of claim also acts to pause (or "toll" in legalese) the running of the statute of limitations "clock" for 75 days, essentially adding 75 days to the two-year deadline for getting the lawsuit filed. (Learn more about the Texas statute of limitations for a medical malpractice lawsuit .) This gives the plaintiff and all health care providers more time to resolve the case via out-of-court settlement, perhaps before a lawsuit even needs to be filed.
Failure to comply with the expert-report requirement could result in the dismissal of your medical malpractice lawsuit, and the court could order you to pay the health care provider's attorney fees and other costs expended to defend the claim prior to its dismissal.
Perrett v. Allstate Insurance Company, 2018 WL 2864132 (S.D. Tex. June 11, 2018) is the first case that scrutinizes whether or not a pre-suit notice properly complies with the new requirements of § 542A.003 of the Texas Insurance Code and therefore gives some guidance to attorneys about how strictly courts will enforce each statutory requirement.
Pre-Suit Demands: Insured's counsel must check all the boxes, but detail may still be vague. - Hanna Plaut
The court found that Perrett sufficiently set forth the acts or omissions giving rise to the claims because Allstate had a solid basis from which to imply the facts, as the letter stated the particular statutory provisions allegedly violated as well as included an appraisal report to support the damage calculation.
Section 542A.003 of the Texas Insurance Code provides that “not later than the 61 st day before the date a claimant files an action to which this chapter applies in which the claimant seeks damages from any person, the claimant must give written notice to the person in accordance with this section as a prerequisite to filing the action.” 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, 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. If any attorney provides notice on behalf of an insurance claimant, the written notice must include “a statement that a copy of the notice was provided to the claimant.” § 542A.003 (b). Courts are required to abate the action if a party does not comply with these pre-suit notice requirements.
Because the pre-suit notice did not contain a specific statement that the notice was provided to Perrett, the court abated the case for sixty days after Allstate received the proper notice.
Allstate moved to abate the action and argued that the notice did not provide a statement of the act or omissions giving rise to the claims, did not include the amount of reasonable and necessary attorney’s fees, and did not provide a statement that the notice was provided to the claimant.
This is called giving legal notice. To give legal notice, ask the court clerk to issue citation, and arrange for a process server to give the citation to the person (or business) you’re suing. The party you sue is usually called the Respondent in a civil case, but may be referred to as the Defendant. (See Texas Rules of Civil Procedure, Rule 99.) The Respondent may file a response to your lawsuit, called an Answer or counter-claim, with the court clerk.
After the judge signs the judgment (written order), you may need to take steps to enforce it. To enforce a judgment for money, you might use a Writ or a Judgment Lien.
If you’ve been sent Discovery, answer it within the time that the court orders or the civil procedure rules require. Answer completely, based on all information reasonably available to you. (See Texas
Discovery is a tool that people use to get information from the other side in a lawsuit. The plaintiff chooses a Discovery Plan from Texas Rules of Civil Procedure 190. Each party can ask the other party to:
Under the Turnover Statute, a trial court can order the judgment debtor to “turn over” nonexempt assets to an officer or court receiver. (See Civil Practice and Remedies Code §31.002.)
The requirement that the statement must bear "some relation to a proceeding" cannot be stretched so far as to include publicity statements that merely address the same subject matter as the suit but serve no purpose within the suit. The statement itself must bear "some relation to a proceeding.".
The Notice Letter itself is the product of lawyerly work for a client involving "the office, professional training, skill, and authority of an attorney.". Landry's did not sue the defendants for delivering the Notice Letter to the required entities, however.
Instead, attorney immunity generally applies when attorneys act in the uniquely lawyerly capacity of one who possesses "the office, professional training, skill, and authority of an attorney." …. "The privilege accorded a litigant which exempts him from liability for damages caused by false charges made in his pleadings, ...
The judicial-proceedings privilege is straightforward: "Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made." ….
Landry's sued for libel and related torts , and the Texas Supreme Court held:
Statements to the media, by definition, are not made within a judicial proceeding. They are not directed to the court or the opposing party, and they play no formal role in the adjudicatory process…. Even in the pre-suit context, … the privilege protects communications that are themselves preparatory to the lawsuit.
We agree with the court of appeals that the delivery of the Notice Letter to Landry's and the Secretary of the Interior is protected by the judicial-proceedings privilege because it was "necessary to set the judicial machinery in motion.". But the delivery of the Notice Letter itself is not at issue.
Create Document. A letter of intent to sue is used to notify a potential defendant that a lawsuit may be filed against them in court. The letter will summarize the alleged unlawful act and indicate a time frame in which the defendant may settle the matter to avoid legal proceedings. Delivery of this notice is often required by law ...
Delivery of this notice is often required by law and may need to be sent via certified mail before initiat ing the filing process . Regardless of any legal necessity for delivery, the form should still be issued to the defendant to help achieve a mutual agreement between each party and prevent a costly lawsuit.