IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

FIRST BAPTIST CHURCH OF SOUR 

LAKE,

Plaintiff,

v. 

CHURCH MUTUAL INSURANCE 

COMPANY, 

Defendant.

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CIVIL ACTION NO. 1:23-CV-391-MJT

MEMORANDUM ORDER OVERRULING

DEFENDANT’S OBJECTIONS AND ADOPTING THE REPORT AND 

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE [Dkt. 37]

Pursuant to 28 U.S.C. § 636 and the Local Rules of Court for the Assignment of Duties to 

United States Magistrate Judges, the District Court referred to Magistrate Judge Christine L. 

Stetson for consideration Defendant’s Corrected Motion to Strike Plaintiff’s Claim for Attorney 

Fees [Dkts. 22, 26]. 

On May 6, 2024, Judge Stetson entered a Report and Recommendation with the following 

conclusions and recommendations: (1) Plaintiff’s state court petition asserted Chapter 542A claims 

and a request for attorney’s fees, (2) Plaintiff did not provide Defendant with sufficient pre-suit 

notice of Chapter 542A claims, (3) Defendant, however, failed to timely raise its objection to 

Plaintiff’s request for attorney’s fees, and, therefore, (4) the instant motion should be denied [Dkt. 

37]. On May 16, 2024, Defendant filed timely objections [Dkt. 40], and Plaintiff filed a timely 

response [Dkt. 40].

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I. Plaintiffs’ Objections to the Report and Recommendation are Overruled

A. Legal Standard

A party who timely files specific, written objections to a magistrate judge’s Report and 

Recommendation is entitled to a de novo determination of those findings or recommendations to 

which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(2)-(3). To 

be specific, an objection must identify the specific finding or recommendation to which objection 

is made, state the basis for the objection, and specify the place in the magistrate judge’s report and 

recommendation where the disputed determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the magistrate judge is not specific. “Frivolous, 

conclusive or general objections need not be considered by the district court.” Nettles v. 

Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by 

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1412 (5th Cir. 1996) (en banc).

B. Discussion

To bring claims under Chapter 542A of the Texas Insurance Code and request attorney’s 

fees, a plaintiff must provide the insurer with notice of its claims, no later than the sixty-first day 

before the date the plaintiff files an action that falls under Chapter 542A. TEX. INS. CODE

§542A.003; see generally Brohlin v. Meridian Sec. Ins. Co., No. 2:22-CV-158-Z-BR, 2023 WL 

7311194, at *2 (N.D. Tex. Nov. 6, 2023). If a plaintiff fails to provide sufficient notice, a defendant 

may file a pleading no later than the thirtieth day after the date it filed an original answer asking 

the court to deny the plaintiff’s request for attorney’s fees. §542A.003(b). If the defendant’s 

pleading is timely, the court must strike a request for attorney’s fees “incurred after the date the 

defendant files the pleading with the court.” TEX. INS. CODE § 542A.007; see, e.g., Henry v. 

Nationwide Prop., No. CV H-23-2488, 2023 WL 6049519, at *3 (S.D. Tex. Sept. 15, 2023).

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Defendant contends Judge Stetson erred in finding that Plaintiff’s state court petition 

invoked claims under Chapter 542A. [Dkt. 40 at 5]. Defendant argues that the state court petition 

was not an “action on a claim” as required under Chapter 542A but rather an action about 

Plaintiff’s allegation that Defendant “wrongfully or erroneously modified Plaintiff’s coverage.” 

[Id.]. According to Defendant, Chapter 542A only became relevant when Plaintiff’s first amended 

complaint [Dkt. 17] was filed and specifically evoked claims under the Texas Insurance Code. If 

that were true, the motion to strike would be timely.

As Chapter 542A is a matter of state law, the Court would defer to Texas courts in 

interpreting key phrases in the statute. Defendant, however, cites no caselaw interpreting the 

definition of “an action on a claim” under Chapter 542A.

1

 Instead, Defendant goes through the 

definition of “claim,” and then argues that Plaintiff’s state court petition was about the “absence 

of coverage” rather than a dispute about a claim. [Dkt. 40 at 5-6]. The Court, therefore, must look 

to the “plain language” of the phrase “an action on a claim.” See generally, Lewis v. Safeco Ins. 

Co. of Indiana, No. 4:21-CV-00149-P, 2021 WL 1250324, at *4 (N.D. Tex. Apr. 5, 2021)

(interpreting another phrase in Chapter 542A based on unambiguous language). 

After review of Plaintiff’s state court petition and relevant facts, the Court finds that Judge 

Stetson did not err in determining Chapter 542A applied to the petition. Defendant argues 

“Plaintiff did not allege in its state-court petition that Defendant wrongfully denied its claim under 

a policy providing coverage for [the property at issue]” [Dkt. 40 at 6]. The Court respectfully 

1 Defendant argues that Judge Stetson’s quote from Waco Hippodrome Inc. that Chapter 542A covers “any breach of 

contract, negligence, and fraud claims against an insurer” is incomplete. [Dkt. 40 at 3 n.1]. The Court notes that 

Judge Stetson did not include the preceding phrase “[w]here Chapter 542A of the Texas Insurance Code is applicable.” 

Defendant, however, fails to note that the preceding sentence explains that “Chapter 542A of the Texas Insurance 

Code generally applies to actions regarding first-party insurance claims arising from alleged damage to covered 

property caused by ‘forces of nature.’” Waco Hippodrome Inc. v. Cent. Mut. Ins. Co., No. 6:22-CV-349, 2022 WL 

17668128, at *8-9 (W.D. Tex. Dec. 14, 2022) (emphasis added). The paragraph, taken as a whole, appears to actually 

bolster Judge Stetson’s finding that Chapter 542A covers this instant dispute which arose from an insurance claim 

denial over damage from a freeze event.

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disagrees. Plaintiff’s state court petition alleges it submitted “a timely claim under [its policy with 

Defendant]” and “received a denial of covered losses dated January 13, 2023” [Dkt. 4 at 2]. The 

petition goes onto to outline Defendant’s various alleged wrong doings, before ultimately setting 

forth claims for fraud, negligent procurement, and breach of contract [Id. at 5]. Notably, Plaintiff 

alleges that “Defendant breached the express written and oral contract with Plaintiff.” [Id.] 

(emphasis added). This case is undoubtedly an action predicated on the denial of a claim where 

the insured seeks as a remedy what it was theoretically owed under an insurance policy. Defendant 

cites no caselaw to the contrary.

The Court finds that Plaintiff’s state law petition was “an action on a claim” for the 

purposes of Chapter 542A. Defendant’s objections are, therefore, overruled.

II. Conclusion and Order

The Court has conducted a de novo review of Defendant’s objections in relation to the 

pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, 

Defendant’s objections [Dkt. 40] are OVERRULED. The Report and Recommendation of the 

United States Magistrate Judge [Dkt. 37] is ADOPTED. Defendant’s Corrected Motion to Strike 

Plaintiff’s Claim for Attorney Fees [Dkt. 22] is, hereby, DENIED. 

IT IS SO ORDERED.

____________________________

Michael J. Truncale

United States District Judge SIGNED this 28th day of May, 2024.

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