## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07 - 22 - 003 57 - CV
IN RE JAMES RIVER INSURANCE COMPANY , RELATOR

ORIGINAL PROCEEDING 

### July 10, 2023 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH , J J . Relator , James River Insurance Company , ha s filed a petition for writ of mandamus with this Court seeking an order directing Respondent, the Honorable William C. Sowder, to vacate his November 1, 2022 order denying James River’s plea in abatement and to enter an order granting its requested relief

. Real party in interest is the Lubbock Independent School District (LISD) which filed a response to James River’s petition at our request. We conditionally grant James River’s petition. Today we issued our opinion and judgment in In re Westchester Surplus Lines Insurance Company, No. 07
- 22 - 00329 - CV,

____ Tex. App. LEXIS

____ (Tex. App.

— Amarillo July 10, 2023, orig. proceeding) (mem. op.) concluding that Respondent abused2

his discretion by failing to abate the underlying suit

. We det ermined LISD’s April 2022 notice letters addressed to certain Insurers, including James River, under Texas Insurance Code section 542A.003 were deficient for three reasons: (1) failing to state the specific amount alleged to be owed by each i nsurer ; (2) failing to articulate which of the two hail/windstorm events, or both, for which LISD is claiming an amount owed, and what is owed by each i nsurer; and (3) failing to identify the amount owed by excess insurers. For those reason s , we conditionally granted the writ of mandamus. The present original proceed ing arises out of the same occurrence made the basis of In re Westchester

. Relator here, James River, is a defendant in LISD’s underlying suit , and is one of LISD’ s excess liability carrier s under layered insurance policies for the policy periods April 2019 to 2020 , and from April 2020 to 2021

. James River contends LISD’s notice s fail to comply with Insurance Code s ection 542A.003 for two reasons: (1) because the notice did not specify any acts or omissions giving rise to a claim against James River and (2) because a specific amount of damages owed by James River was not stated

. We conditionally grant mandamus relief for the
same r easons as those articulated in In re Westchester

. Notice of Acts or Omissions As we understand James River’s interpretation of its policy with LISD , the duty of James River to indemnify under a covered claim does not arise until the specific amount alleged to be owed exceed ed $50 million for the year of damage or loss

. LISD does not contend otherwise. However, the notice letters from LISD’s counsel do not state a fact
based and legal reason why James River “failed to adequately pay the claim so the3

property could be fully repaired .” 1 W e agree. As we wrote in Westchester , “[a] n excess carrier’s potential liability is only triggered after the primary insurers and all lower layers have exhaus ted their policy limits. ” __ 2023 Lexis at ____ ( citing Keck, Mahin & Cate v. Nat ’ l Union Fire Ins. Co. of Pitts. , 20 S.W.3d 692, 700

– 01 (Tex. 2000); St. Paul Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202, 209 (5th Cir. 1996) )

. S ee also Perrett v. Allstate Ins. Co., 354 F. Supp. 3d 755, 758 (S.D. Tex. 2018) (stating the notice requirement of section 542A.003 is satisfied by a notice containing “specific factual allegations supporting the causes of action, or at least enough information to imply thos e facts.”)

. Respondent abused his discretion by denying James River’s plea in abatement. Specific A mount A llegedly O wed James River next argues LISD’s correspondence did not afford sufficient notice of the specific amount James River allegedly owed on L ISD’s claim. We agree, for the reasons articulated in Westchester

. Conclusion LISD’s notice letters fail to comply with Texas Insurance Code section 542A.003. T EX
. I NS
. C ODE A NN
. § 542A.003. We therefore find that Respondent clearly abused his discretion and that James River possess es no adequate remedy by appeal. We conditionally grant James River’s petition for writ of mandamus

. We direct Respondent to set aside his November 1, 2022 order and render an order abating the

1 “An excess liability insurer is not obligated to participate in the defense or settlement of an underlying claim until the primary policy limits are exhausted. . . . The primary policy limits are exhausted when the primary carrier tenders its policy limits.” Am. Nat’l Fire Ins. Co. v. Hammer Trucking, Inc., No. 0 2 - 04 - 00 327 - CV, 2006 Tex. App. LEXIS 9774, at *12 n.24 (Tex. App.

— Fort Worth Nov. 9, 2006, pet. denied) (mem. op.) (citing Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 20 S.W.3d 692, 700

– 01 (Tex. 2000)).4

underlying suit until the 60th day after the date a notice complying with s ection 542A.003 is given

. We are confident Respondent will comply, and our writ will issue only if Respondent fails to co mply within fifteen days of this memorandum opinion

.

Lawrence M. D oss Justice