Appraisal clauses have appeared in most first-party property policies for well over 100 years. However, it is only in the last 15 years or so that appraisal has received such enormous attention in Texas. Before 2002, appraisal was almost a nonissue. To illustrate the lack of attention it received for more than a century, the Texas Supreme Court observed in 2009 that they had considered cases involving appraisal only six times before then: in 1882, 1897, 1888, 1919, 1965 and 2002.[1]

But why has appraisal now become such a hot topic in Texas first-party insurance matters? Appraisal provisions have appeared in most policies for over a century. It would be nice to attribute the attention to a sudden awareness of the right to appraisal, and a legitimate and honest desire by policyholders, as well as the public adjusters and attorneys acting on their behalf, to define the scope of a rarely-used but potentially helpful tool for prompt and equitable dispute resolution. While this may indeed be the desire of some reputable public adjusters and policyholder attorneys, others have identified the process as one ripe for manipulation through the use of various schemes to “help” policyholders — and indeed in turn for their own benefit as well — extract more money from the insurance claims process.

One of the Latest, but Perhaps not the Greatest, Schemes

One of the newest issues to arise in the appraisal process is whether a policyholder can amend a pleading to include additional claims at the dispositive motion stage in an appraisal case. That is, add additional claims after an appraisal has taken place, after an insurer has timely paid an appraisal award, and after the insurer has filed a motion for summary judgment to dispose of remaining claims. In September, the United States District Court for the Southern District of Texas considered the propriety of allowing such an amendment. In Cantu v. State Farm Lloyds[2] the court utilized a five-factor analysis to decide that under the circumstances in that case, the insured’s proposed amendment was not warranted.

Cantu is noteworthy because only two other cases have considered whether amendments to pleadings should be permitted after appraisal has taken place.[3] In both cases, amendment was permitted. However, in those matters the insurer had breached the appraisal provision. In Cantu, there was no such breach. The insurer complied with the requirements of the appraisal process, timely paid the appraisal award, and then filed a motion for summary judgment to dispose of the remaining claims. Faced with these facts, Judge Alvarez refused to permit amendment and made clear she recognized the insureds’ request to amend was sought simply because they were dissatisfied with the amount of their appraisal award.

Unfortunately, the case potentially left open a loophole that will result in yet more appraisal-related litigation.

Actually, given the never-ending parade of schemes to extract additional payments from insurance companies, the proper word is not “potentially.” The issue is almost guaranteed to surface again.

An Interesting Procedural Twist

Cantu has typical facts. In March 2012, the policyholders’ property sustained hail damage. Their insurer paid their claim. The policyholders disputed the amount of the payment, and sued the insurer, which invoked appraisal. An award was granted in favor of the policyholders, and the insurer timely paid the award. The insurer then moved for summary judgment on the basis that the remainder of the policyholders’ claims were estopped by its payment of the appraisal award.

Interestingly, instead of filing a response to the insurer’s motion, the policyholders sought to amend their pleading under Federal Rule of Civil Procedure 15(a), to “add additional specific allegations” and clarify they were pursuing a claim under Texas Insurance Code § 541.061.

Early is on Time, and on Time is Late

Generally, courts acknowledge leave to amend should be freely given unless there is a substantial reason to refuse amendment.[4] Amendments are sometimes permitted past the dispositive motion stage but are discretionary.[5] In Cantu, the court used the following five factors to determine whether to allow the amendment:

1. Undue delay;
2. Bad faith or dilatory motive;
3. Repeated failure to cure deficiency in previous amendments;
4. Undue prejudice to the opposing party; and
5. Futility of the amendment.

These are the same five factors a federal court applies in any analysis regarding a pleading amendment, regardless of subject matter. The only factor the court determined weighed in favor of amendment was the repeated failure to cure deficiencies in previous amendments. The policyholders had not previously filed any amendments.

All four other factors weighed against amendment. With respect to undue delay, the court stated:

Plaintiffs’ motion was filed on November 5, 2015. This is a year and a half after their original state court petition was filed, a year and five months after removal to this court, nine months after invoking appraisal, and only twenty days after Defendants’ motion for summary judgment was filed. Plaintiffs’ may have acted expeditiously, but only in response to the motion for summary judgment.[6]

The delay ran from the first filing (the policyholders’ original petition), not the last filing (the insurer’s motion for summary judgment). Since no reason was provided for the delay, it could not support amendment.

The court used essentially the same analysis for the second factor: bad faith or dilatory motive. The claims the policyholders sought to add would have been known when they filed their lawsuit. They could have been asserted in the original petition, but were not. Since no other explanation was given, the only conclusion the court could draw was a bad faith motive.

The court decided that the insurer would be prejudiced by allowing amendment, because it would be forced to devote time and resources to litigate similar claims to those already litigated.

The analysis of these factors makes it clear: if a claimant wants to amend a pleading, a court may be more likely to consider “early” as “on time.” While amendment may be technically permitted after dispositive motions, the court’s discussion of the first three factors suggests a claimant in an appraisal case may have a hard row to hoe to amend once an appraisal award has been timely paid and an insurer has filed a motion for summary judgment.

The Open Door

The last factor is the most troublesome. The court noted that futility of amendment was likely the most important factor, and the outcome varied on a case-by-case basis. In Cantu, the policyholders sought to add claims for fraud and misrepresentation. In federal court, these claims are subject to Federal Rule of Civil Procedure 9(b), requiring a claimant to state the circumstances constituting fraud and/or misrepresentation with particularity. The proposed amended pleading was still deficient under Rule 9(b), and could not survive a motion to dismiss. Allowing amendment was futile in any event.

But what the court did not say is significant: an insured will never be permitted to amend its petition to include claims of fraud and misrepresentation after an insurer’s timely payment of an appraisal award and a motion for summary judgment to dismiss the remaining claims has been filed.

It is uncertain how much weight futility of amendment should be afforded if the pleading is sufficient but the remaining factors disfavor amendment. We can probably expect litigation to flesh out this issue.

The question at the end of the day is: If amendment is permitted, will it ultimately be an end run around the existing state of the law as clearly stated by Judge Alvarez in Cantu?

[1] State Farm Lloyds v. Johnson, 290 S.W.3d 886, 889 (Tex. 2009).

[2] 2016 WL 4866111 (S.D. Tex. Sept. 15, 2016)

[3] See Standard Fire Insurance Co. v. Fraiman, 588 S.W.2d 681 (Tex.Civ.App. – Houston [14th Dist.] 1979, writ ref’d n.r.e.); Farmers Ins. Group v. Poteet, 434 S.W.3d 316 (Tex.App. – Fort Worth 2014, pet. denied)

[4] Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004)

[5] See Tex. R. Civ. P. 63; Fed. R. Civ. P. 15(a).

[6] Cantu, 2016 WL 4866111 at *1.