In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-22-00357-CV 

 

IN RE JAMES RIVER INSURANCE COMPANY, RELATOR 

ORIGINAL PROCEEDING 

July 10, 2023 

MEMORANDUM OPINION 

Before PARKER and DOSS and YARBROUGH, JJ. 

Relator, James River Insurance Company, has 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 abused 
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his discretion by failing to abate the underlying suit. We determined 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 insurer; (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 insurer; and (3) failing to identify the amount owed by excess insurers.

For those reasons, we conditionally granted the writ of mandamus. 

The present original proceeding 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 carriers under layered insurance policies for the policy 

periods April 2019 to 2020, and from April 2020 to 2021. 

James River contends LISD’s notices fail to comply with Insurance Code section 

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 reasons 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 exceeded $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 factbased and legal reason why James River “failed to adequately pay the claim so the 
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property could be fully repaired.”1 We 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 exhausted 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)). See 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 those 

facts.”). Respondent abused his discretion by denying James River’s plea in abatement. 

Specific Amount Allegedly Owed

James River next argues LISD’s correspondence did not afford sufficient notice of 

the specific amount James River allegedly owed on LISD’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. 

TEX. INS. CODE ANN. § 542A.003. We therefore find that Respondent clearly abused his 

discretion and that James River possesses 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. 02-

04-00327-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)).
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underlying suit until the 60th day after the date a notice complying with section 542A.003 

is given. We are confident Respondent will comply, and our writ will issue only if 

Respondent fails to comply within fifteen days of this memorandum opinion.

Lawrence M. Doss

 Justice