                                                                                                           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;




                                                                                                  26
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
