Mesquite insurance lawyers know that violations of Texas insurance laws are also violations of the Texas Deceptive Trade Practices Act (DTPA). They also know that a notice letter is required prior to pursuing a lawsuit under either category of statutes. A 1992, Texas Supreme Court case illustrates this point. The style of the case is, Hines v. Hash.
Dutch Hines sued C.W. Hash, Jr. for damages under the DTPA, complaining that the roof Hash had installed on his home leaked. In his original petition Hines alleged that notice of his claim had been sent to Hash by certified mail, return receipt requested, and had been returned unclaimed. In his original answer, Hash asserted as an affirmative defense that he had never received any notice of Hines’ complaint until he was served with suit papers, and therefore had not been able to tender Hines a settlement offer. However, Hash never requested the trial court to abate the suit so that he could make such an offer, nor does it appear that he was prevented from making a settlement offer even without the abatement. The evidence at trial concerning notice was undisputed. The notice letter to Hash and the envelope in which it was sent were admitted into evidence, showing three unsuccessful attempts at delivery before it was returned to Hines. Hash did not dispute that the envelope was accurately addressed to him. In fact, he testified he knew at the time that he had a certified letter at the post office but did not pick it up because he was leaving town each morning before the post office opened to work in another city and was not returning home until after the post office closed. He also testified that it was not convenient for him to arrange to have someone else pick up the letter. Hines did not challenge Hash’s explanation for not having received the letter. Hash moved for an instructed verdict after Hines rested and again at the close of all the evidence, urging lack of notice as a complete bar to Hines’ claim. The trial court denied Hash’s motions and refused Hash’s requested jury question on the issue of notice. The jury found that Hash knowingly violated the DTPA in several particulars and assessed Hines’ actual damages at $9,249.00. The trial court rendered judgment on the verdict for a total of $35,822.67, which included actual damages, twice that sum in statutory damages, prejudgment interest of $4,225.67, and attorney fees of $3,850.00.
The notice requirement of the DTPA is clearly mandatory.
The purpose of the DTPA notice provision is to discourage litigation and encourage settlements of consumer complaints. When a plaintiff files an action for damages under the DTPA without first giving the required notice, and a defendant timely requests an abatement, the trial court must abate the proceedings for 60 days.
During the abatement the notice required by statute must be given, advising the person in reasonable detail of the consumer’s specific complaint and the amount of actual damages and expenses, including attorneys’ fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant. Other notice, such as actual or oral notice, is insufficient because it does not comply with the statutory insistence upon reasonably certain specificity. Because defendant’s response to notice may limit or preclude damages, it is necessary for notice to have some formality to it. If a plaintiff fails to give notice while the action is abated for that purpose, it should be dismissed.
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