Suing An Insurance Company – Don’t Do It Pro Se

Insurance lawyers may not be perfect in all their actions but if a person wishes to sue an insurance company, get an insurance lawyer, don’t do it yourself.  This is illustrated in a recent Fifth Circuit opinion styled, Thomas Petty v. Great West Casualty Company.

This is an appeal resulting from the district court’s dismissal of Petty’s claim with prejudice after Petty, a commercial truck driver sued Great West pro se.

Petty contends he was involved in two accidents involving fatalities and he suffers from ongoing mental trauma that prevents him from being able to operate a commercial truck.  As a result, he seeks monetary relief for lost business earnings and mental distress/anguish.

The district court had denied Petty’s last motion to amend his complaint and this decision is reviewed under Rule 15(a) for an abuse of discretion.  This rule evinces a bias in favor of granting leave to amend.  Leave to amend must be freely given when justice so requires.  Unless there is a substantial reason, such as undue delay, bad faith, dilatory motive, or undue prejudice to the opposing party, the discretion of the district court is not broad enough to permit denial.  Similarly, a district court may deny a proposed amendment for futility–meaning the amended complaint would fail to state a claim upon which relief could be granted.

Petty’s experience is unquestionably tragic.  Nevertheless, on the record, the district court did not err in rejecting Petty’s final motion for leave to amend his complaint, and dismissing the action. The originally named defendant, Great Wall, is the commercial automobile liability insurer for Petty’s trucking company.  The two accidents are alleged to have been caused by the negligence of the other drivers, however, not a Great West insured.

Relative to the liability insurers for the other drivers involved in the two accidents, adding the non-diverse insurers as defendants would have destroyed diversity jurisdiction.  The district court, when faced with an amended pleading naming a new non-diverse defendant in a removed case, should scrutinize that amendment more closely than an ordinary amendment.  The court should consider the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether the plaintiff has been dilatory in asking for amendment, whether the plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities.

Texas law generally does not authorize an injured third-party to sue a liability insurer directly in lieu of suing the tortfeasor.  Rather, the tortfeasor’s liability must be finally determined by agreement or judgment.  Here, the record relative to the rejected proposed amendment does not indicate that the liability of the other two drivers—the alleged insureds of the non-diverse insurance companies that Petty sought to add as additional defendants—had been finally determined by judgment or agreement.

And, finally, under Texas law, “a motorist owes no special duty to avoid inflicting purely mental anguish damages on other users of the highway.  Petty’s proposed amendment alleges only mental anguish damages, not physical bodily injury accompanied by mental anguish damages.  Texas likewise does not recognize a general legal duty to avoid negligently inflicting mental anguish.  Rather, mental anguish damages are recoverable when certain other legal duties are breached and the plaintiff offers a minimum quantity of proof.

As stated by the Texas Supreme Court:
Without intent or malice on the defendant’s part, serious bodily injury to the plaintiff, or a special relationship between the two parties, we permit recovery for mental anguish in only a few types of cases involving injuries of such a shocking and disturbing nature that mental anguish is a highly foreseeable result. These include suits for wrongful death, see Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 551 (Tex.1985), and actions by bystanders for a close family member’s serious injury, see Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex. 1988).
Petty’s proposed amended complaint includes none of there special circumstances.  The district court decision to dismiss the complaint with prejudice is Affirmed.
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