ACCEPTED
01-14-00133-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/29/2015 10:43:39 AM
CHRISTOPHER PRINE
CLERK
No. 01-14-00133-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
In the 4/29/2015 10:43:39 AM
CHRISTOPHER A. PRINE
Court of Appeals Clerk
for the First District of Texas
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Appellant/Cross-Appellee,
v.
JOSEPH HAYES, JR. AND JOANNE HAYES,
Appellees/Cross-Appellants.
Appealed from 165th Judicial District Court,
Harris County, Texas
Cause No. 2009-63319
Oral Argument Handout
For Joseph Hayes, Jr. And Joanne Hayes
October 1, 2009 Notice Letter (CR 26-28)
René M. Sigman Jennifer Bruch Hogan
THE MOSTYN LAW FIRM Richard P. Hogan, Jr.
3810 West Alabama Street HOGAN & HOGAN
Houston, Texas 77027 Pennzoil Place
713.861.6616–telephone 711 Louisiana, Suite 500
713.861.8084–facsimile Houston, Texas 77002
713.222.8800–telephone
Randal Cashiola 713.222.8810–facsimile
CASHIOLA & BEAN
2090 Broadway Street, Suite A
Beaumont, Texas 77701
409.813.1443–telephone
409.813.1467–facsimile
Oral Argument April 29, 2015
46312_1
Filed 09 October 1 A10:50
Loren Jackson - District Clerk
2009-63319 I Court: 011 Harris County
ED101J015531855
By: Furshilla Brantley
"EXHIBIT 1"
NOTICE LETTER
October 1, 2009
Via Hand Delivery with Petition
United Services Automobile Association Eberl's Claims Service, Inc.
President, Josue Robles, Jr. Registered Agent, Kirk J. Eberl
9800 Fredericksburg Rd. Lakewood, Colorado 80235-2201
San Antonio, Texas 78288
Cynthia Melena John Berke III
3106 Jeanette Ct. 3227 Forrester Dr.
Austin, Texas 78745 Pearland, Texas 77584
Peter Weakly
P.O. Box 3619
Alice, Texas 78333
Re: Claimant/Insured: Joseph Hayes, Jr. and Joanne Hayes
Policy No.: 004820499-80A
Claim No.: 4820499-80A-20-7352
Insured Address: 1403 Wavecrest Ln., Houston, Texas 77062
Ladies and Gentlemen:
Our firm represents Joseph Hayes, Jr. and Joanne Hayes in connection with their claim for
damages to the home located at 1403 Wavecrest Ln., Houston, Texas 77062. As you are well aware,
Joseph Hayes, III and Joanne Hayes made a claim against their insurance policy on their Hurricane
Ike related damages. United Services Automobile Association issued the policy to Joseph Hayes, Jr.
and Joanne Hayes. Eberl's Claims Service, Cynthia Melena, John Berke III, and Peter Weakly
adjusted the claim. To this date, Joseph Hayes, Jr. and Joanne Hayes have yet to receive full payment
under the insurance policy.
Undoubtedly, you are aware of your liability to my clients under the Texas Insurance Code,
which specifically covers unfair settlement claims. Specifically, you are liable to Joseph Hayes, Jr.
and Joanne Hayes jointly and individually for the following violations of the Texas Insurance Code
§ 541.060:
(1) Misrepresenting and/or failing to discuss with Joseph Hayes, Jr. and Joanne Hayes,
pertinent facts or policy provisions relating to coverage as an issue;
(2) Failing to acknowledge, with reasonable promptness, pertinent communications with
respect to the claim arising under its policy;
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Notice Letter
October 1, 2009
Page 2
(3) Failing to adopt reasonable standards for prompt investigation of the claim arising
under its policy;
(4) Not attempting in good faith to effectuate prompt, fair and equitable settlement of the
claim submitted in which liability has become reasonably clear;
(5) Failing to provide promptly to a policyholder a reasonable explanation of the basis in
the insurance policy, in relation to the facts or applicable law for denial of the claim
or for the offer of a compromise settlement;
(6) Failing to affirm or deny coverage of claim to a policyholder within a reasonable time
after proof ofloss statements have been completed; and
(7) Refusing to pay the claims without conducting a reasonable investigation based upon
all available information.
Furthermore, the delay in payment to Joseph Hayes, Jr. and Joanne Hayes is also in violation
of Texas Insurance Code § 542.055, et seq., thus triggering liability on your part to pay the amount
of the claim, plus damages consisting of eighteen percent (18%) per annum of the amount of the
claim, along with prejudgment interest and reasonable attorney's fees.
You, EBERL'S CLAIMS SERVICE, INC., CYNTHIA MELENA, JOHN BERKE III,
AND PETER WEAKLY, are further notified that in accordance with Liberty Mutual Ins. Co.
v. Garrison Contractors, Inc., 966 S.W.2d 482 (Tex. 1998), you have individual liability separate
from that of your employer for violations of the Texas Insurance Code. Therefore, Joseph
Hayes, Jr. and Joanne Hayes will be seeking damages and compensation from you personally
as well.
Accordingly, on behalf of Joseph Hayes, Jr. and Joanne Hayes, demand is hereby made that
within sixty (60) days from your receipt of this correspondence, the following amounts be paid:
1. $ 323,000.86 in economic damages;
2. $ 50,000.00 in mental anguish damages; and
3. $ 248,667.24 for expenses, including attorney's fees, which you should
note will increase as we prepare this case for trial.
27
Notice Letter
October 1, 2009
Page 3
This demand is made in the spirit of compromise. According to our analysis, this demand
represents a tremendous savings to you given your potential exposure under the Texas Insurance
Code. Thus, we hope this demand is viewed as a good faith and conservative effort on our part to
expeditiously resolve this potential litigation on amicable terms.
If my client's claim is not paid within sixty (60) days from the receipt of this correspondence,
we would expect to recover its actual damages, along with damages for mental anguish, prejudgment
interest, attorney's fees and breach of the duty of good faith and fair dealing you owe Joseph Hayes,
Jr. and Joanne Hayes. In addition, please be aware that recovery in the form of treble damages and
additional penalties will also be sought.
This correspondence will also serve as notification that, pursuant to the Texas Civil Practice
& Remedies Code § 3 8. 001, et seq., you may be required to pay reasonable attorney's fees due to
your failure to perform as per the terms of the insurance contract entered into with Joseph Hayes,
Jr. and Joanne Hayes. Such payment is a result of Joseph Hayes', Jr. and Joanne Hayes' retainment
of our legal services to pursue its remedy for damages and would be paid in addition to the amount
of a valid claim for contractual benefits and costs.
As Joseph Hayes, Jr. and Joanne Hayes are anxious to have this matter resolved promptly,
we trust you will immediately respond, in writing, to this formal demand letter. From this point
forward, we are the only contact for you or your attorney regarding this matter. Please forward a
copy of this letter to your insurance representative for his or her review.
Ifyou have any questions regarding this matter or need additional information, please feel free
to contact this office. However, please do not contact Joseph Hayes, Jr. and/or Joanne Hayes, either
orally or in writing, without prior express written permission. Thank you for your attention to this
matter.
Sincerely,
THE MOSTYN LAW FIRM
Is/ W Shawn Staples
W. Shawn Staples
WSS/cde
28