United States District Court, S.D. Texas, Houston Division
S. HANEN UNITED STATES DISTRICT JUDGE
before the Court is Defendant Allstate Texas Lloyd's
Motion for Summary Judgment, or Alternative Motion for
Partial Summary Judgment (Doc. No. 14). Having considered the
motion, all responses, and the summary judgment evidence
before the Court, the Court herein denies the motion.
suit arises out of Plaintiffs' 2015 insurance claim for
alleged storm damage to their house. After a storm allegedly
damaged their house in August 2015, Plaintiffs filed an
insurance claim on January 25, 2016. (Doc. No. 14 at 9). Upon
evaluation of the house, Allstate sent a claim denial letter
to Plaintiffs on January 28, 2016. (Doc. 15-1 at 72).
Allstate did not take any further action. (Doc. No. 14 at 9).
On August 16, 2017, Plaintiffs filed this lawsuit against
Allstate contesting the denial. (Doc. No. 1-3).
Plaintiffs' counsel elected to effectuate service
privately but did not serve Allstate with the summons and
citation. (Doc. No. 14 at 9). On February 8, 2018, Plaintiffs
filed their First Amended Petition. (Doc. No. 1-4). On
February 12, 2018, Allstate was served for the first time.
(Doc. No. 1-5). Allstate filed its answer to Plaintiffs'
First Amended Petition on November 26, 2018. (Doc. No. 11).
On June 3, 2019, Allstate filed a Motion for Summary Judgment
based on the affirmative defense of statute of limitations.
(Doc. No. 14).
Motion for Summary Judgment, Allstate alleges that because it
was served after the statute of limitations expired, the suit
is barred by the statute of limitations. (Id. at
10). While Plaintiffs dispute the date that the statute of
limitations began accruing, they primarily contend that
because Allstate did not sufficiently plead the affirmative
defense in its answer, the issue is not fairly before the
court. (Doc. No. 17 at 5-6).
Rule of Civil Procedure 8(c) requires a defendant to
"plead an affirmative defense with enough specificity or
factual particularity to give the plaintiff fair notice of
the defense that is being advanced." Rogers v.
McDorman, 521 F.3d 381, 385 (5th Cir. 2008). In a
diversity action, substantive state law determines what
constitutes an affirmative defense. Arismendez v.
Nightingale Home Health Care, Inc., 493 F.3d 602, 610
(5th Cir. 2007). In Texas, the statute of limitations defense
is an affirmative defense. Tex.R.Civ.P. 94. Generally, the
defendant must raise the affirmative defense in a pretrial
proceeding. Fed.R.Civ.P. 8(c); Lucas v. United
States, 807 F.2d 414, 417 (5th Cir. 1986). Even if the
affirmative defense is not specifically raised in the
original answer, the defendant does not waive the
"affirmative defense if it is raised at a
'pragmatically sufficient time, and [the plaintiff] was
not prejudiced in its ability to respond.'"
Rogers, 521 F.3d at 386 (quoting
Arismendez, 493 F.3d at 610). When the affirmative
defense is not specifically pleaded, a pleading may be
sufficient if a cause of action or defense may be reasonably
inferred from what is specifically stated. Crockett v.
Bell, 909 S.W.2d 70, 72 (Tex. App.-Houston [14th Dist.]
absolute specificity in pleading is not required, fair notice
of the affirmative defense is.'" Tran v.
Thai, Civ. A. No. H-08-3650, 2010 WL 723633, at *1 (S.D.
Tex. Mar. 1, 2010) (quoting Automated Med. Labs v. Armour
Pharm. Co., 629 F.2d 1118, 1122 (5th Cir. 1980)). A
plaintiff has fair notice when the defense is sufficiently
described so that the plaintiff is not "a victim of
unfair surprise." U.S. ex rel. King v. Solvay
S.A., 304 F.R.D. 507, 520 (S.D. Tex. 2015) (citing
Home Ins. Co. v. Matthews, 998 F.2d 305, 309 (5th
Cir. 1993)). In some cases, merely pleading the name of the
affirmative defense will suffice as fair notice.
Solvay, 304 F.R.D. at 510 (citing Woodfieldv.
Bowman, 193 F.3d 354, 362 (5th Cir. 1999)).
argue that Allstate's affirmative defense was not
sufficiently pleaded because Plaintiffs did not have fair
notice of the statute of limitations affirmative defense and
were unfairly surprised. Allstate did not specifically raise
the statute of limitations in its answer. Instead, Allstate
included the broad response that:
By way of additional defense, Defendant pleads and
incorporates herein all terms, provisions, and conditions of
the Policy of Insurance, whether specifically stated herein
or not, and may rely on any of the terms found therein for
defenses and limitations of payments . . . The Defendant
specifically asserts, without being limited to, the following
language contained in Plaintiffs policy.
No. 11 at 7).
then proceeded to quote multiple provisions of the insurance
contract amounting to almost four pages of Plaintiff s
insurance policy. (Id. at 7-11). The last provision
that Allstate quoted was section 11, the contractual term
providing for a two years and one day statute of limitations
on suits that can be brought against Allstate. (Id.
broad inclusion of any defenses that could possibly be
contained in Plaintiffs policy does not suffice as fair
notice of a statute of limitations affirmative defense.
See Aunt Sally's Praline Shop, Inc. v. United Fire
& Cas. Co., 418 Fed.Appx. 327, 329-31 (5th Cir.
2011) (Defendant's broad invocation of "all
provisions, limitations, exclusions, and endorsements"
stated in the insurance policy did not sufficiently plead an
affirmative defense of policy exclusions). Furthermore,
Allstate specifically pleaded other specific defenses both
before and after the quoted policy language but did not
include the affirmative defense of limitations. (Doc. No. 11
at 6-7, 11). It would not be fair to expect Plaintiff to
glean a statute of limitations defense when it appears to be
vaguely hidden separate and apart from other, more
specifically pleaded defenses.
Allstate did not sufficiently plead the affirmative defense
of statute of limitations in its answer, Allstate's
Motion for ...