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Toshiba Machine Co.11/10/2005
ent interest issue in this case is de novo.
2. Facts and Analysis
On November 4, 1998, SPM sent a letter to the president of Toshiba Machine Co., Ltd. in Japan. SPM complained that the BMC machines will not perform to the specifications in the machine literature or as represented by Toshiba . . . . e are concerned that the machines will never perform consistently to Toshiba's specifications and SPM's contract requirements.
The letter summarized twenty-one complaints about the BMC machines and Toshiba's earlier responses to those complaints. SPM stated that it had incurred damages of $998,250 and continued to incur damages at the rate of $5,775 for each day the machines did not perform. SPM concluded its letter with these words:
SPM is prepared to litigate the issues if necessary. However, SPM prefers to resolve the issues if the machines can perform to specification and contract requirements. If this is not attainable, SPM prefers to return the machines to Toshiba, with Toshiba to absorb SPM's costs-to-date.
SPM contends that this letter was sufficient notice of its claims to trigger accrual of prejudgment interest 180 days later. Toshiba responds that the letter did not give notice of a claim because it did not make a demand for payment or assert a right to be paid.
We look to similar cases for guidance. In Bevers, we held that a signed medical authorization form, coupled with a letter asking an insurance company to "properly consider [plaintiff's] injury claim," constituted notice. Bevers, 909 S.W.2d at 603. The Texarkana court reached the same conclusion where a personal injury plaintiff, at the defendant's request, signed a medical records release form that stated, " his information is to be used for purposes of evaluating and handling my claim for injury." K Mart Corp. v. Rhyne, 932 S.W.2d 140, 146 (Tex. App.--Texarkana 1996, no writ). Likewise, the Austin court held that a request from a plaintiff to a defendant's insurance company asking the company to pay certain medical bills, and inquiring when he would receive his next lost wages check, was a "claim" for purposes of prejudgment interest. Robinson v. Brice, 894 S.W.2d 525, 529 (Tex. App.--Austin 1995, writ denied). More recently, the Beaumont court concluded that letters requesting reimbursement for medical treatment constituted written notice of a claim. Brookshire Grocery Co., 99 S.W.3d at 825.
There is a key distinction between those cases and the case now before us. In each of those cases, the claims asserted by the writings in question were certain and unconditional. The writings did not urge the recipients to avoid a contingent, future liability, but to accept an accrued, existing liability. SPM's letter does just the opposite. SPM urges Toshiba to avoid a future claim by curing the defects in the BMC machines. SPM does not demand payment or assert a right to be paid. Instead, SPM suggests that it will assert a claim and demand payment in the future if Toshiba cannot make its machines perform to specification.
We hold that SPM's November 4, 1998 letter did not constitute notice of a claim as a matter of law. The trial court properly computed prejudgment interest from the date SPM filed suit. We overrule SPM's sole issue.
IV. Conclusion
We overrule Toshiba's issues two, four, and six through eleven. We do not reach Toshiba's issues one, three, and five. We overrule SPM's sole issue. We therefore affirm the trial court's judgment in all respects. See Tex. R. APP. P. 43.2(a).
PANEL A: CAYCE, C.J.; GARDNER and MCCOY, JJ.
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