Unreported / Non-Citable
Background
Lancaster Center, LLC owned property insured by Western World Insurance Company that was damaged during a March 2023 weather event. After Western World denied Lancaster’s insurance claim, Lancaster brought state-law claims against the insurer in federal court under diversity jurisdiction.
On September 8, 2025, Lancaster attempted to email the presuit notice required by Texas Insurance Code § 542A.003 to the adjuster originally assigned to the claim. Lancaster immediately received automated responses stating that delivery had failed. The adjuster had stopped working for Western World, died in December 2024, and had his email accounts closed. Lancaster said it then made several unsuccessful telephone calls to Western World, but it sent no written notice to another contact before filing suit on January 13, 2026.
Western World moved under § 542A.007(d) to prevent Lancaster from recovering attorney’s fees incurred after May 6, 2026, the date of the motion. It supported the motion with evidence that neither Western World nor its claims administrator had received written presuit notice.
The Court’s Holding
The court granted Western World’s motion. Making an Erie prediction about unresolved Texas law, it held that an email known to have bounced back does not satisfy § 542A.003’s requirement to “give written notice.” The court did not decide precisely what steps a claimant must ordinarily take to confirm receipt; Lancaster had conclusive evidence that its only written transmission was never delivered. Its later telephone calls also could not satisfy a statute requiring written notice.
The court rejected Lancaster’s substantial-compliance argument. Chapter 542A does not expressly recognize substantial compliance, and even if the doctrine applied, unsuccessful attempts to deliver notice would not substantially comply with the mandatory notice requirement. Lancaster had other available contacts but did not attempt to send written notice to anyone besides the former adjuster. The court also found that neither statutory exception applied and that Lancaster’s vague account of unanswered calls did not show that Western World prevented delivery.
Finally, the court held that abatement was not the required remedy. Chapter 542A permits an insurer to seek abatement or timely request preclusion of later-incurred attorney’s fees. Western World chose the latter remedy within 30 days after filing its original answer. Lancaster therefore cannot recover from Western World any otherwise-available attorney’s fees incurred after May 6, 2026.
Key Takeaways
- An attempted Chapter 542A notice does not satisfy the statute when the claimant knows the email was not delivered.
- Telephone calls cannot substitute for the statute’s required written notice, and unsuccessful delivery efforts do not constitute substantial compliance.
- An insurer that timely invokes § 542A.007(d) may obtain preclusion of attorney’s fees incurred after its filing instead of seeking abatement.
Why It Matters
The decision underscores that Texas property-insurance claimants should verify that Chapter 542A presuit notices reach a viable insurer contact, particularly when an electronic transmission fails. A known delivery failure may expose the claimant to a cutoff of attorney’s fees even if counsel attempted follow-up calls.
The ruling also clarifies that abatement and fee preclusion are alternative statutory remedies controlled by the insurer’s filing choice. Here, the underlying coverage action remained pending, but Lancaster lost the ability to recover attorney’s fees incurred after Western World timely sought relief.