1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

CURT ADKISSON

vs.

SAFECO INSURANCE COMPANY OF 

INDIANA

§

§ 

§ 

§ CASE NO. 6:23-cv-146 

§ 

§ 

§

§ 

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant’s Motion to Limit Plaintiffs’ Claim for Attorney’s Fees 

(ECF 7). The motion is referred to the undersigned for disposition (ECF 14).1 Having considered

the motion, response and reply, the motion should be granted.

Background

Plaintiff filed this lawsuit against his insurer, Safeco Insurance Company of Indiana, 

concerning his homeowners’ insurance policy claim seeking payment for property damage to his 

home following a winter storm. Plaintiff asserts that his home suffered broken pipes and related 

water damage on February 19, 2021, due to a freeze during Winter Storm Uri. Plaintiff complains 

that Defendant improperly denied his claim.

The lawsuit was originally filed in the 124th Judicial District Court of Gregg County, Texas. 

Defendant filed a Notice of Removal on March 24, 2023, removing the action to this Court. 

Defendant then filed the Motion to Limit Plaintiffs’ Claim for Attorney’s Fees (ECF 7). Defendant 

1 Issues related to the recovery of attorney’s fees may be referred to a magistrate judge in the same manner as a 

dispositive pretrial matter. FED. R. CIV. P. 53(d)(2)(D).

Case 6:23-cv-00146-JDK Document 20 Filed 08/01/23 Page 1 of 5 PageID #: 276
2

seeks to limit Plaintiff’s recovery of attorney’s fees for failure to provide proper pre-suit notice

pursuant to TEX. INS. CODE § 542A.003. Defendant asserts that the statute requires 61-day notice 

between pre-suit notice and filing suit, but Plaintiff filed suit 4 days after sending pre-suit notice. 

More specifically, Defendant submits that Plaintiff emailed pre-suit notice on February 16, 2023 

and filed suit in state court on February 20, 2023.2 As a result of Plaintiff’s failure to provide 

proper pre-suit notice, Defendant contends that Plaintiff cannot recover attorney’s fees incurred 

after the date it filed the motion to limit fees.

In response, Plaintiff does not dispute that pre-suit notice was sent on February 16, 2023,

and that suit was filed on February 20, 2023. Plaintiff submits, however, that an exception to the 

pre-suit notice rule applies pursuant to TEX. INS. CODE § 542A.003(d). Plaintiff asserts that the 

impending expiration of the applicable statute of limitations rendered it impracticable for Plaintiff 

to then wait 61 days before filing suit. Plaintiff argues that he had a reasonable basis to believe 

there was insufficient time to provide proper pre-suit notice before the expiration of the limitations 

period.

In its reply, Defendant argues that Plaintiff is not entitled to the narrow exception provided 

in § 542A.003(d) because he failed to offer any proof that providing sufficient notice was 

impracticable or explain why he waited nearly 23 months after denial of the claim to send pre-suit 

notice. Defendant submits that the cause of action accrued on March 24, 2021 when it denied 

Plaintiff’s claim, yet Plaintiff waited until February 16, 2023 to send pre-suit notice. 

Analysis

The Texas Insurance Code provides, “[i]n addition to any other notice required by law or 

the applicable insurance policy, not later than the 61st day before the date a claimant files an action 

2 Defendant’s Motion to Limit Plaintiffs’ Claim for Attorney’s Fees, ECF 7, at *1.

Case 6:23-cv-00146-JDK Document 20 Filed 08/01/23 Page 2 of 5 PageID #: 277
3

to which this chapter applies in which the claimant seeks damages from any person, the claimant 

must give written notice to the person in accordance with this section as a prerequisite to filing the 

action.” TEX. INS. CODE § 542A.003(a). Pre-suit notice requires providing, “(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 damage 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 customary for similar legal 

services.” TEX. INS. CODE § 542A.003(b). This pre-suit notice “is not required if giving notice is 

impracticable because [] the claimant has a reasonable basis for believing there is insufficient time 

to give the presuit notice before the limitations period will expire.” TEX. INS. CODE § 

542A.003(d)(1). 

Here, Plaintiff does not dispute that he did not provide the required pre-suit notice. Instead, 

Plaintiff asserts that he did not have time to provide notice 61 days before filing suit because he 

was reaching the expiration of the statute of limitations. Plaintiff provides no further facts or 

explanation concerning the delay between the denial of the insurance claim and the submission of 

pre-trial notice. 

Establishing that it is impracticable to provide proper pre-suit notice “is not an easy 

threshold to satisfy and ‘ought to be reserved for those instances in which presuit notice genuinely 

cannot be provided.’ ” The Hlavinka Equipment Company v. Nationwide Agribusiness Insurance 

Company, 546 F.Supp.3d 534, 536 (S.D.Tex. June 30, 2021) (quoting Tadeo as Tr. of John E. 

Milbauer Tr. v. Great N. Ins. Co., 2020 WL 4284710, at *8 (N.D.Tex. July 27, 2020)). To avail 

himself of the exception to providing proper notice, a plaintiff “must plead and offer some proof 

Case 6:23-cv-00146-JDK Document 20 Filed 08/01/23 Page 3 of 5 PageID #: 278
4

as to why the pre-suit notice duty must be excepted – reason independent from simply stating that 

the impending expiration of the limitations period made the notice impracticable.” Hospitality 

Operations, LLC v. Amguard Insurance Company, 2019 WL 11690209, at *2 (E.D.Tex. Dec. 2, 

2019).

Plaintiff submits a conclusory statement that he did not send timely pre-suit notice because 

of the impending statute of limitations deadline to file suit, but he provides no reason for failing to 

submit the requisite pre-suit notice 61 days before the expiration of the statute of limitations. 

Plaintiff has not demonstrated that the exception provided in § 542A.003(d)(1) applies. “The 

Court should not extend the exception of the pre-suit notice to any plaintiff that waits until the 

statute of limitations run before filing suit.” Id.

Once a defendant pleads and proves that it did not receive proper pre-suit notice as required 

by the Texas Insurance Code, “the court may not award to the claimant any attorney’s fees incurred

after the date the defendant files the pleading with the court.” TEX. INS. CODE § 542A.007(d). As 

a result of Plaintiff’s failure to provide proper pre-suit notice, the Court cannot award Plaintiff 

attorney’s fees incurred after March 27, 2023—the date on which Defendant filed its pleading 

asserting that Plaintiff failed to properly submit pre-suit notice. The Hlavinka Equipment 

Company v. Nationwide Agribusiness Insurance Company, 546 F.Supp.3d 534, 537–38 (S.D.Tex. 

June 30, 2021); TEX. INS. CODE § 542A.007(d).

RECOMMENDATION

It is RECOMMENDED that the Motion to Limit Plaintiffs’ Claim for Attorney’s Fees 

(ECF 7) be GRANTED and that any claim by Plaintiff for attorney’s fees incurred after March 

27, 2023 be denied.

Case 6:23-cv-00146-JDK Document 20 Filed 08/01/23 Page 4 of 5 PageID #: 279
5

Within fourteen days after receipt of the magistrate judge’s report, any party may serve and 

file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 

636(b). The written objections shall not exceed eight pages. See Local Rule CV-72(c). 

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after service shall bar that party 

from de novo review by the district judge of those findings, conclusions and recommendations 

and, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Assn., 79 F.3d 1415, 1430 (5th Cir.1996) (en banc), superseded by statute on 

other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen 

days). 

So ORDERED and SIGNED this 1st day of August, 2023.

Case 6:23-cv-00146-JDK Document 20 Filed 08/01/23 Page 5 of 5 PageID #: 280