PJC Business

PJC 102.22

DTPA/I NSURANCE C ODE

edies Code. Tex. Civ. Prac. & Rem. Code §33.002(a)(2). Insurance Code claims are not mentioned in the statute. For a discussion and a sample submission of a propor tionate responsibility claim, see PJC 115.36. Notice and tender of settlement under DTPA. Though technically not a “defense,” the presuit notice provisions of the DTPA can limit or delay a DTPA suit. See DTPA §17.505. The notice must state the “specific complaint” and the amount of actual damages and expenses incurred. DTPA § 17.505(a). The defendant then has a statuto rily prescribed time to tender a written settlement offer, which, if rejected by the con sumer, may be filed with the court. At trial, if the court finds the offer is “substantially the same” as the actual damages found, the consumer may not recover any amount greater than that of the offer or the amount of actual damages. DTPA § 17.5052. Issues pertaining to notice and tender are to be decided by the court, not by the jury, so no submission is necessary. DTPA § 17.5052(g); see also Hines v. Hash , 843 S.W.2d 464, 466–67 (Tex. 1992). In addition, the defendant has an opportunity to tender a settlement offer within cer tain times after suit is filed. See DTPA § 17.5052(b)–(g). Procedures for comparing the settlement offer to the amount awarded for damages and fees are also set out. For the requirements of the notice, the timeliness and the method of objection to lack of notice, and the court action required when no notice has been given, see Hines , 843 S.W.2d at 467–68. Notice and tender under Insurance Code. Actions brought under Insurance Code chapter 541, subchapter D, also require notice. The notice must state the “specific complaint” and the amount of actual damages and expenses incurred. Tex. Ins. Code §541.154(b) (formerly Tex. Ins. Code art. 21.21, §16(e)). The defendant may file a rejected offer of settlement with the court, and if the court finds the offer is the same as, “substantially the same” as, or more than the actual damages found, the consumer may not recover any amount greater than the lesser of the offer or the amount of actual damages. Tex. Ins. Code §§ 541.158–.159 (formerly Tex. Ins. Code art. 21.21, § 16A). Some section 541 lawsuits filed on or after September 1, 2017, are subject to addi tional notice defenses. The notice provisions of section 541.154 have been supple mented by chapter 542A, which applies to suits on insurance claims arising out of property damage caused by “forces of nature.” See Tex. Ins. Code §542A.001(2)(C). In addition to any other notice required by law or by the applicable insurance policy, not later than the sixty-first day before the date a claimant files an action to which this chapter applies, the claimant must give written notice as a prerequisite to filing suit. The notice must provide (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 dam age 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 custom-

174