In this case, Safeco Insurance Company of Indiana (“Safeco”) issued a residential policy to Venugopal Muriki (the “Insured”) covering the Insured’s dwelling. On December 10, 2024, the Insured submitted a claim with Safeco after his home allegedly sustained storm damage on or around June 2, 2024. Muriki v. Safeco Ins. Co. of Indiana, No. 4:25-CV-84, 2025 WL 2230008, at *1 (E.D. Tex. Aug. 5, 2025). Two days later, Safeco sent out an adjuster to inspect the property. The adjuster determined that the damage stemmed from a prior 2021 claim, and Safeco accordingly denied the claim as pre-existing damage. The Insured then attempted to invoke his contractual right to appraisal, which Safeco refused to participate in. On December 23, 2024, the Insured sent a pre-suit notice letter to Safeco alleging breach of contract, breach of the duty of good faith and fair dealing, and violations of the Texas Insurance Code and Texas Deceptive Trade Practices Act. In particular, the Insured demanded over $50,000 and noted the potential to seek treble damages.
Three days later, the Insured filed suit in state court asserting various breach of contract claims and violations of the Texas Deceptive Trade Practices Act and Texas Insurance Code. In response, Safeco filed a motion to limit the Insured’s claim for attorney’s fees and a motion for verified plea in abatement. After removing the case to federal court, Safeco re-urged the motions.
Safeco’s request to limit fees arises under § 542A.003 of the Texas Insurance Code and § 17.505 of the Texas Deceptive Trade Practices Act. At first glance, these statutes appear to be procedural and thus would warrant application of federal law under the Erie doctrine procedural rules. But the district courts recognize that federal courts sitting in diversity should apply these statutes’ pre-suit notice provisions as state law rather than tools or procedure.[1] Id.; see also Davis v. Allstate Fire & Cas. Ins. Co., No. 4:18-CV-00075, 2018 WL 3207433, at *3 (E.D. Tex. June 29, 2018); see, e.g., Franklin v. Apple Inc., 569 F. Supp. 3d 465, 479 (E.D. Tex. 2021) (“Although providing sufficient notice is a procedural process, federal courts should apply the notice provision in the DTPA because its purpose is intertwined with Texas’s substantive policy.”).
In relevant part, Section 542A.003 provides that:
(a) [N]ot later than the 61st day before the date a claimant files an action 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.
(b) The notice required ... must provide:
(1) a statement of the acts or omissions giving rise to the claim; the specific amount alleged to be owed by the insurer;
(2) 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 ...
(c) If an attorney or other representative gives the notice ... on behalf of a claimant, the attorney or representative shall:
(1) provide a copy of the notice to the claimant; and
(2) include in the notice a statement that a copy of the notice was provided to the claimant.
Tex. Ins. Code Ann. § 542A.003(a)-(c). Section 542A allows a defendant who “did not receive a pre-suit notice complying with Section 542A.003” to “file a plea in abatement not later than the 30th day after the date the person files an original answer in which the action is pending” until proper notice is given. Muriki, 2025 WL 2230008, at *2 (citing Tex. Ins. Code Ann. § 542A.005(a)(1)). “The court shall abate the action if the Court finds the person filing the plea…did not, for any reason, receive a pre-suit notice complying with Section 542.003.” Id. (b)(1). The burden of proof lies with the party seeking abatement to establish its propriety. Muriki, 2025 WL 2230008, at *2 (citing Carrizales v. State Farm Lloyds, No. 3:18-CV-0086-L, 2018 WL 1697584, at *2 (N.D. Tex. Apr. 6, 2018)).
Similarly, § 17.505(a) of the Deceptive Trade Practices Act provides:
As a prerequisite to filing suit seeking damages under [the Texas Deceptive Trade Practices Act] ... a consumer shall give written notice to the person at least 60 days before filing the suit advising the person in reasonable detail of the consumer's specific complaint and the amount of economic damages ... and expenses, including attorney's fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant.
Tex. Bus. & Com. Code Ann. § 17.505(a). Courts routinely recognize that when a party entitled to notice does not receive it, that party “may file a plea in abatement not later than the 30th day after the date the person files an original answer in the court in which the suit is pending.” Muriki, 2025 WL 2230008, at *2. “Abatement of a claim is proper where the plaintiff gives written notice within 60 days but fails to adequately provide enough information for the party to determine whether to pursue settlement or litigation.” Benny White Fying Serv., Inc. v. Prof'l Aviation Ins. Reciprocal, No. 5:13-CV-093-C, 2013 WL 12124596, at *1 (N.D. Tex. July 22, 2013) (citing Tex. Bus. & Com. Code Ann. § 17.505(c)-(d)).
In support of its motions, Safeco argued that the Insured did not provide it with proper pre-suit notice pursuant to either § 542A.003 of the Texas Insurance Code or § 17.505 of the Texas Deceptive Practices Act. Determining that the Insured’s December 23, 2024, demand letter complied with the necessary substantive requirements of either section, the district court determined the Insured clearly did not comply with the requisite sixty-day period before filing suit by filing suit three days later. Muriki, 2025 WL 2230008, at *3. The Insured argued its lack of notice fell within the statutes’ exceptions because the purpose of the notice requirement is to encourage settlement, and Safeco “was not even entertaining settlement.” Therefore, the Insured argued, attorney’s fees should not be limited. Id.; see Tex. Ins. Code Ann. § 542A.003(d) (noting that “[a] presuit notice…is not required if…impracticable because: (1) the claimant has a reasonable basis for believing there is insufficient time to give ... notice before the limitations period will expire; or (2) the action is asserted as a counterclaim.”).
The district court found that argument unpersuasive, noting that a lack of interest in settlement does not fall into either statutes’ exceptions. Moreover, the district court found no reason to create a new exception to the statutes, especially where district courts have previously declined to do so. See Rahe v. Meridian Sec. Ins. Co., No. 3:21-CV-545-E, 2022 WL 614995, at *2 (N.D. Tex. Feb. 28, 2022) (holding that “[p]laintiff was required to wait sixty days prior to filing suit” despite her argument “that it was unnecessary to wait the full duration based on the purpose of the presuit notice”). Accordingly, the Court granted Safeco’s Motion to Limit Attorney’s Fees.
Turning to Safeco’s Verified Plea in Abatement, the district court determined the plea was not appropriate under either § 542A of the Texas Insurance or § 17.505 of the Texas Deceptive Trade Practices Act given that the district court was considering the plea in abatement more than 60 days since the Insured provided its pre-suit notice letter to Safeco. Normally, while the abatement period would run until “the 60th day after the date a notice complying with Section 542A.003 is given,” a plea in abatement can be denied as moot where courts address the abatement issue more than sixty days after notice is given. Here, since Safeco has not demonstrated that Plaintiff’s notice is substantively deficient other than its untimeliness, the district court determined that abatement would not be appropriate under the circumstances. Accordingly, the Verified Plea in Abatement was denied as moot.
The Lowdown: This case serves as another important reminder that Plaintiff-policyholders must follow the statutorily prescribed steps outlined in section 542.003(a)-(c) to avoid being at risk of forfeiting their claim for attorney’s fees or abatement of their suit until proper notice is given to the Defendant. However, this case also demonstrates that courts recognize the practical realities of the timeline of litigation and can deny a plea in abatement where the time to abate has already been exhausted by the timeline of litigation.
