WILBERT NORWOOD STARKS v. DALLAS COUNTY DISTRICT CLERK (Other)

SUPREME COURT CASES

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State: Texas

Court: Criminal Court of Appeals

Docket No: WR-14,672-14

Case Date: 11/25/2009

Plaintiff: WILBERT NORWOOD STARKS

Defendant: DALLAS COUNTY DISTRICT CLERK (Other)

Preview:In re Jerry Behr--Appeal from 49th Judicial District
Court of Webb County
MEMORANDUM OPINION
No. 04-05-00895-CV
IN RE JERRY BEHR
Original Mandamus Proceeding (1)
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: March 1, 2006
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
This is an original mandamus proceeding. The relator, Jerry Behr, a defendant in the underlying proceeding, seeks
mandamus relief from an order denying his plea in abatement pursuant to 541.154 of the Texas Insurance Code. Tex.
Ins. Code Ann. 541.154 (Vernon Supp. 2005). Because we hold Behr is entitled to an abatement under 541.154 as a
matter of law, we conditionally grant the writ of mandamus, and order the trial court to vacate its order signed
December 1, 2005, denying Behr's plea in abatement and enter an order abating all further proceedings in the
underlying action until 60 days after the written notice required by 541.154 has been provided to Behr.
Factual and Procedural Background
In the underlying lawsuit, Baby's Paradise, Inc., a retail apparel store in Laredo, Texas ("Baby's"), sued various
defendants including Behr for breach of contract and violations of the Texas Insurance Code resulting from the denial
of its insurance claim for a theft at the premises on August 13, 2003. The insurance claim was filed with Baby's
insurance company, Maryland Casualty Company, for whom Behr worked as a claims adjuster. Baby's claim was
denied in a letter dated February 5, 2004, and the company filed suit on July 20, 2005.
Behr timely filed a verified plea in abatement asserting that he had not received pre-suit notice of the claims against
him as required by 541.154 of the Texas Insurance Code. Tex. Ins. Code Ann. 541.154. By written response, Baby's
admitted that no pre-suit notice had been provided to Behr, but asserted that it was excused from the statutory notice
requirement. Baby's maintained that it did not have Behr's address until shortly before suit was filed, and "it was not
practical to give notice" under the statute "because the statute of limitations would be expiring soon and under such
circumstances, the law does not require prior written notice." The trial court denied Behr's plea in abatement. Behr
filed a petition seeking a writ of mandamus directing the trial court to withdraw its order and grant the abatement. The
sole issue raised in this mandamus proceeding is whether the trial court abused its discretion in failing to abate the
underlying suit in light of Baby's admitted failure to provide Behr with pre-suit notice of the claims against him under
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541.154.
Analysis
In considering a petition for mandamus, we adhere to the standard set forth in Walker v. Packer, 827 S.W.2d 833 (Tex.
1992). Mandamus is an extraordinary remedy available only when the trial court has clearly abused its discretion and
the party has no adequate remedy by appeal. Id.at 839-44. A trial court has no discretion in determining what the law is
or in applying the law to the facts. Therefore, a clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id. at 840.
Section 541.154(a) of the Texas Insurance Code provides that, "[a] person seeking damages in an action against
another person under this subchapter must provide written notice to the other person not later than the 61st day before
the date the action is filed." Tex. Ins. Code Ann. 541.154 (a). The notice must advise the other person of "the specific
complaint" and "the amount of actual damages and expenses, including attorney's fees reasonably incurred in asserting
the claim against the other person." Tex. Ins. Code Ann. 541.154(b). An exception to this requirement provides that,
"notice is not required if giving notice is impracticable because the action: (1) must be filed to prevent the statute of
limitations from expiring ... ." Tex. Ins. Code Ann. 541.154(c)(1). Finally, 541.155 provides that a person who does
not receive pre-suit notice may file a plea in abatement, and "[t]he court shall abate the action if, after a hearing, the
court finds that the person is entitled to an abatement because the claimant did not provide the notice as required by
Section 541.154." Tex. Ins. Code Ann. 541.155(a), (b) (Vernon Supp. 2005).
We begin our analysis by noting that several facts necessary to our determination of this mandamus petition are
undisputed - the theft occurred on August 13, 2003; the insurance claim was denied on February 5, 2004; Baby's suit
was filed on July 20, 2005; no pre-suit notice was provided to Behr; and Behr timely filed a verified plea in abatement.
Furthermore, the only evidence before the trial court at the hearing on the plea in abatement was the parties' pleadings,
which included Baby's response to the plea in abatement and the sworn affidavit of its attorney Daniel C. Andrews. In
that affidavit, Mr. Andrews states that he was retained shortly before February 22, 2005, and that his client "did not
have many documents concerning the claim but did have correspondence indicating that Jerry Behr had been involved
in the investigation." Mr. Andrews further states that he attempted to locate Mr. Behr, but did not locate an address for
him until July 2005, "less than 60 days before the statute of limitations would expire. Therefore, it was impractical to
give Mr. Behr written notice of the claim."
Baby's argument that pre-suit notice was impractical, and therefore excused, is premised on its assertion that its cause
of action accrued when there were "likely violations of [Chapter 541 of the Texas Insurance Code] which occurred in
August or September of 2003." We disagree. A cause of action under the Texas Insurance Code for unfair claims
settlement practices accrues on the date that the insurer denies coverage. Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 221 (Tex. 2003). Here, the record conclusively establishes that Baby's claim was denied on February
5, 2004. Accordingly, at the time Mr. Behr was located in July 2005, Baby's had at least six months before limitations
would expire on its suit. Therefore, as a matter of law, it was not "impractical" to give Behr the 60 days pre-suit notice
required by the statute. See Tex. Ins. Code Ann. 541.154(c)(1).
Because no pre-suit notice was provided, and the limitations exception to the notice requirement is inapplicable as a
matter of law, we hold that abatement was mandated by statute and the trial court therefore abused its discretion in
denying Behr's plea in abatement. We further hold that the trial court's denial of the abatement effectively deprives
Behr of substantial rights with no adequate remedy on appeal. Specifically, without pre-suit notice, Behr is denied his
right to limit his damage exposure through an offer of settlement, as contemplated by sections 541.156-.159 of the
Insurance Code. Tex. Ins. Code Ann. 541.156-.159 (Vernon Supp. 2005). Accordingly, we conditionally grant the writ
of mandamus, and direct the trial court to vacate its December 1, 2005 order denying Behr's plea in abatement and
enter an order abating all further proceedings in the underlying action until 60 days after the written notice required by
541.154 has been provided to Behr. See Tex. Ins. Code Ann. 541.155. The writ will issue only if the trial court fails to
comply within ten days from the date of our opinion and order.
Phylis J. Speedlin, Justice
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1. This original proceeding arises out of Cause No. 2005-CVQ-001028-D1, styled Baby's Paradise, Inc. v. Maryland
Casualty Co., Northern Ins. of New York, Zurich North America, Brush Country Claims, Ltd., and Jerry Behr, pending
in the 49th Judicial District Court, Webb County, Texas, the Honorable Manuel Flores, presiding.
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