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TWIA, Mostyn Law lock horns over outcome of Rita trial – insurer says firm ‘simultaneously’ filed suit with ‘excessive’ pre-suit demand

Southeast Texas Record, April 4, 2017

By: David Yates 

BEAUMONT – While the trial of the last remaining Hurricane Rita lawsuit may be in books, the case is far from over – as Mostyn Law and the Texas Windstorm Insurance Association recently filed contrasting motions for entry of final judgment.

One issue still in controversy is the fact that, even though 60-days notice is required before filing suit against an insurer, jurors were not allowed to see Mostyn Law’s pre-suit notice letter, which “was sent simultaneously with the filing” of the lawsuit and demanded more than $600,000 in damages.

Representing Golden triangle residents David and Sue James at trial, Mostyn Law secured $51,000 in damages for his clients on March 3, with Jefferson County jurors also doling out $216,000 in attorney’s fees.

David and Sue James had contended TWIA “set out to deny” and “underpay” their claim for damages caused by Hurricane Rita, which ravaged Southeast Texas on Sept. 24, 2005.

And while jurors found TWIA failed to comply with its insurance policy, they also found that the couple failed to keep and provide TWIA pertinent records and documents and an accurate record of repair expenses.

The plaintiffs’ failure to do so caused TWIA to be prejudiced in its investigation, jurors concluded.

A week after the trial ended, Mostyn Law attorneys filed a motion for entry of final judgment on the verdict for the sum of $295,785.89, plus post judgment interest and court costs.

On March 29, TWIA filed a motion of its own, asserting that it is entitled to a take-nothing judgment, since the prejudice finding renders the jury’s findings of breach of contract and non-contractual damages immaterial.

TWIA also argues there is no evidence to support the jury’s findings of breach of contract and award of attorney’s fees.

Jurors awarded the couple $33,000 for their dwelling, $8,000 in living expenses and $10,000 for their personal property, according to the charge of the court.

The $51,000 jury verdict was only 12.5 percent of the $408,000 in economic damages Mostyn alleged in its pre-suit demand letter.

Mostyn Law was awarded attorney’s fees of $131,000 for representation in the trial court, $50,000 if appealed, and a total of $35,000 for all the work that will be put in if the case goes before the Texas Supreme Court.

TWIA believes Mostyn Law is not entitled to recovery of any attorney’s fees because their pre-suit demand was so “excessive.”

In its response to Mostyn Law’s motion, TWIA argues the court “wrongly excluded” from evidence the pre-suit demand, which sought $408,000 in economic damages, $50,000 for mental anguish and $163,200 for attorney’s fees.

“(David) James testified he would have settled his claim for $60,000 but he never presented a demand for that amount – instead he sought ten times that amount as an extortionate pre-suit demand that was sent simultaneously with the filing of this lawsuit,” the motion states.

“Under the facts here, where the policy benefits demanded were multiples of the actual result, and the total demand was similarly disproportionate to the plaintiffs’ eventual requested judgment, there is no question this demand was ‘excessive’ under any definition.”

Senate Bill 10 and House Bill 1774 are presently pending before the Texas Legislature. The legislation contains a new mandatory pre-suit notice requirement for weather related insurance claims mandating that “pre-suit notice” actually be given sixty days prior to filing suit.

The legislation also limits recoverable attorneys’ fees if economic damages awarded at trial are far less than the amount alleged in the pre-suit notice letter.

As applied to this case, since the plaintiffs were awarded only 12.5 percent of their pre-suit demand damages figure, Mostyn Law would have recovered only 12.5 percent of its alleged attorneys’ fees.

Mostyn Law is a vocal opponent to SB 10 and HB 1774.

TWIA is represented in part by Hicks Thomas attorney James Old Jr.

Mostyn Law attorneys Gregory Cox, Justin Burrow and Mark Sparks represent the plaintiffs.

Judge Justin Sanderson, 60th District Court, presided over the trial.

Cause No. B-183464