Statute Of Limitations

Here is a case where the statute of limitations defense by the insurer did not work.  The case is from the Southern District of Texas, Houston Division.  It is styled, Arcelia Flores, et al v. Allstate Texas Lloyds.

Allstate filed a Motion for Summary Judgement based on the statute of limitations having expired before the lawsuit was filed.

The lawsuit filed by Flores arises out of alleged storm damage that occurred in August 2015.  The claim was filed on January 25, 2016.  Allstate evaluated the claim and sent a denial letter to Flores on January 28, 2016.  Flores filed this lawsuit on August 16, 2017.  Flores elected to effectuate service privately but did not serve Allstate with the summons and citation.  On February 8, 2018, Flores filed an amended petition and then on February 12, 2018, Allstate was served for the first time with the amended petition.  Allstate filed its answer to the first amended petition on November 26, 2018.  Allstate filed its Motion for Summary Judgement on June 3, 2019, based on the affirmative defense of statute of limitations.

While contesting the Motion on other grounds, Flores primary contention is that Allstate did not sufficiently plead the affirmative defense in its answer and thus, is not fairly before the court.

Federal Rule 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.  In Texas, the Rules of Civil Procedure, Rule 94, states the statute of limitations is an affirmative defense.  The law in this area is that 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 is not prejudiced in its ability to respond.

Although absolute specificity is not required, fair notice of the affirmative defense is.  A plaintiff has fair notice when the defense is sufficiently described so that the plaintiff is not a victim of unfair surprise.  Merely pleading the name of the affirmative defense is sometimes fair notice.

In this case, Allstate did not specifically raise the statute of limitations in its answer.  Allstate include a broad response stating:

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 Plaintiff’s policy.

Allstate then proceeded to quote multiple provisions of the insurance contract totaling almost four pages of the insurance policy.  The last provision in the policy provided for a two year and one day statute of limitations for suits against Allstate.

The Court ruled that this broad inclusion of any defenses that could possibly be contained in Plaintiff’s policy does not suffice as fair notice of a statute of limitations affirmative defense. Plus, the Court said that it would not be fair to expect Flores to glean a statute of limitations defense when it appears to be vaguely hidden separate and apart from other, more specifically pleaded defenses.

The Court denied Allstate’s motion.