A Houston federal judge recently denied an insurer’s motion for summary judgment because of a failure to sufficiently plead a statute of limitations defense.  In Flores v. Allstate Texas Lloyds, No. 4:18-CV-003302019, 2019 WL 3565103, (S.D.Tex., August 7, 2019), an insurer filed suit over alleged storm damage to their house.  Their insurer denied the claim on January 28, 2016 and the insured subsequently filed suit in state court on August 16, 2017.  However, the insurer was not served with a summons and complaint at that time, but were eventually served on February 12, 2018, after the insured filed an amended petition.  The insurer then filed a Motion for Summary Judgment based on the affirmative defense of limitations.  The insured disputed the date that the statute of limitations began accruing and also argued the insurer did not sufficiently plead the affirmative defense in its answer so the issue was not fairly before the court.

The Court began its analysis by noting that Federal 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 and that in Texas, the statute of limitations defense is an affirmative defense. The Court noted that although absolute specificity in pleading is not required, fair notice of the affirmative defense is, and in some cases, merely pleading the name of the affirmative defense will suffice as fair notice.

The insured argued that the affirmative defense was not sufficiently pleaded because they did not have fair notice of the statute of limitations affirmative defense and were unfairly surprised. The insurer did not specifically raise the statute of limitations in its answer. Instead, the answer included the response that broadly incorporated all the terms of the Policy, including limitations. The Court concluded that this broad inclusion of any defenses that could possibly be contained in the insurance policy is not sufficient to provide fair notice of a statute of limitations affirmative defense. Accordingly, the motion was denied because the insurer did not sufficiently plead the affirmative defense of statute of limitations in its answer.

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