Olga Despotis Trust v. The Cincinnati Insurance Company

Filing 114

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File Amended Complaint and Suggestions in Support (ECF No. 105 ) is DENIED. Signed by District Judge Ronnie L. White on December 8, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

OLGA DESPOTIS TRUST,
Plaintiff,
vs.
THE CINCINNATI INSURANCE,
COMPANY,
Defendant.

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Case No. 4:12CV2369 RLW

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs Motion for Leave to File Amended Complaint
and Suggestions in Support (ECF No. 105). The May 1, 2013 deadline for filing amended
pleadings was established in this Court' s Case Management Order. (ECF No. 6).

Plaintiff

seeks to add claims for Breach of Implied Duty of Good Faith and Fair Dealing (Count IV) and for
Declaratory Judgment that policy provisions that required replacement of a building within two
years should be tolled (Count V). Further, Plaintiffs proposed amended complaint changes the
theory of recovery in Count I.
Defendant claims that amendment of Count IV would be futile because, under Missouri
law, a claim for Breach of Implied Duty of Good Faith and Fair Dealing is not available in the
first-party insurance context, i.e., where an insured has filed suit against its insurance company.
(ECF No. 110 at 2 (citing Easter v. Farmers Ins. Co., No. 13-3412-CV-S-REL, 2014 WL
1237161 , at *3 (W.D. Mo. Mar. 26, 2014) ("Missouri law prohibits a claim by an insured against
an insurance company for breach of good faith and fair dealing.")). Defendant further argues that
Plaintiff previously abandoned its intent to replace the building. (ECF No. 110 at 3). Finally,
Defendant asserts that changing Plaintiffs theory of recovery in Count I from "anticipatory
breach" to a claim that Defendant was obligated to rebuild the property is prejudicial. (ECF No.

110 at 3-4). Defendant notes that Plaintiff now seeks damages for the speculative loss of an
alternative investment/development undertaken by Plaintiff using the funds initially paid to it.
(ECF No. 105-3,

~78(a-f)).

Defendant maintains that Plaintiff previously refused to answer

questions related to these new damages claims in depositions, and Defendant claims it would be
prejudiced by trying to defend such a claim now. (ECF No. 110 at 4).
In tum, Plaintiff argues that it has met the standards of both Rule 15 and 16 for amendment
of the complaint out of time. (ECF No. 105,

~25;

ECF No. 113 at 5). Plaintiff claims that the

Amended Complaint seeks "only to confirm the pleadings to the evidence adduced to date, and to
clarify the issues to be presented at trial." (ECF No. 105,

~23).

Plaintiff admits that the claims

for Breach of the Duty of Good Faith and Fair Dealing have not been permitted. (ECF No. 113 at
1). Plaintiff, however, argues that it alleged in the original complaint that it was seeking
replacement cost for the building. (ECF No. 113 at 2-3). Finally, Plaintiff states that there is
"sufficient time for Defendant to explore these issues" related to their new damages claim, if such
discovery is necessary. (ECF No. 113 at 5).
"A decision whether to allow a party to amend her complaint is left to the sound discretion
of the district court[.]" Bell v. Allstate Life Ins. Co., 160 F .3d 452, 454 (8th Cir. 1998). Here,
Plaintiff fails to explain what caused this extremely long and prejudicial delay in filing these new
claims. Plaintiff's "failure to recognize the need for amended claims at an earlier date [does] not
constitute good cause to excuse the untimeliness of his motion to amend." Schenk v. Chavis, 259
F. App'x 905, 907 (8th Cir. 2008). The Court agrees that Plaintiff's amended complaint would
require additional discovery that would necessarily delay resolution of this already extremely
protracted litigation.

The Court finds that this unexcused delay would unduly prejudice

Defendant because of the advanced nature of this case.

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs Motion for Leave to File Amended
Complaint and Suggestions in Support (ECF No. 105) is DENIED.

Dated this 8th day of December, 2015.

~LU#o

ONNIELWHITE
UNITED STATES DISTRICT JUDGE