INSURER ALLOWED TO AMEND FEDERAL PLEADINGS TO CLARIFY POLICY DEFENSES AFTER PLEADINGS DEADLINE

A San Antonio federal judge recently upheld an insurer’s right to rely on its entire policy in its pleadings, even when it did not initially quote or cite all of the potentially relevant policy terms in its original answer.  In Sadovsky v. Nationwide Prop. & Cas. Ins. Co., SA-18-CV-271-XR, 2019 WL 721317 (W.D. Tex. Feb. 19, 2019) (slip op.), a homeowner sued Nationwide, alleging he had been underpaid for damages caused by Hurricane Harvey. The homeowner’s demand that his entire tile roof be replaced had been at issue from the beginning of the suit. In its original answer, Nationwide specified several policy provisions but expressly stated that its defense was not limited to the specific policy provisions quoted, and reserved its right to rely on the entire policy. After the court-ordered deadline for amending the pleadings had passed, Nationwide deposed the homeowner’s expert and learned that among other things, the expert asserted the entire tile roof must be replaced because the damaged tiles could not be matched – a specific ground for replacing the entire roof which had not previously been raised.

Nationwide sought to amend its answer to add more specific policy language regarding matching, which Plaintiff opposed.  Plaintiff argued that Nationwide was attempting to add four new defenses, while Nationwide asserted it was merely clarifying the specific policy language, and its previous answer had already invoked the entire policy.

The court agreed with Nationwide and concluded Nationwide was not adding new defenses, but merely further explaining which policy provisions its existing coverage defenses were based on; the matching issues had not previously been raised, and Nationwide was justified in not mentioning these particular policy provisions in previous answers; and even if the clarification prejudiced Plaintiff, the prejudice could be cured by a continuance to allow additional discovery if needed.