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May 2013 TBF Practice Tip

On Behalf of | Apr 17, 2013 | Firm News

The Answer (Part 1):

The Original Petition

So you have the Plaintiff’s Original Petition. Jurisdiction and venue look good. You are probably thinking, “I just generally deny, add affirmative defenses, specially except, and move on, right?” Normally, yes. But don’t forget, this is your first opportunity to pointedly shape the narrative of the litigation in your favor.

Taking Shape

Did the Plaintiff generally allege that all conditions precedent were performed? Are you defending an insurer from a breach of contract cause of action, among others? Is this a claims-made policy? Then what about a verified denial on reporting the claim?

This is the perfect opportunity to show what the Plaintiff did when filing her insurance claim. Take this opportunity to point that out in a verified denial under Texas Rules of Civil Procedure 54 and 93 that the Plaintiff reported this claim outside the policy period. The following is an example:

Pursuant to Texas Rules of Civil Procedure 54 and 93, Defendant specifically denies that all conditions precedent have been performed. Defendant specifically denies that Plaintiff gave timely and proper notice of the alleged claim made the basis of this lawsuit under the terms of the applicable insurance agreement when Plaintiff gave notice of the alleged claim 14 months after its was discovered.

This shows there would be no coverage and no breach of contract cause of action if the policy required reporting within a year. Summary judgment looks like it could be right around the corner.

The Rest of the Story

That was simple enough. But is it enough every time? The answer is no. The reason is that you are going to have to show prejudice to your Defendant insurer for late notification of the claim if it was actually reported during the policy period, or other reporting period specified, but not “as soon as practicable.” Prodigy Communications Corp. v. Agricultural Excess & Surplus Ins. Co., 288 S.W.3d 374, 382-83 (Tex. 2009) (holding that, in “a claims-made policy, when an insured notifies its insurer of a claim within the policy term or other reporting period that the policy specifies, the insured’s failure to provide notice ‘as soon as practicable’ will not defeat coverage in the absence of prejudice to the insurer.”)


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