Opinion
Civil Action No. 3:04-CV-0080-B.
November 12, 2004
MEMORANDUM ORDER
Before the Court are the Motion of Defendant Standard Life Insurance Company of Indiana ("Standard") to Dismiss, filed September 22, 2004, and the Motion of Plaintiff Cathy J. Townsend and Plaintiff Charles Townsend, as Representative of the Estate of Cathy J. Townsend, ("the Estate") (collectively "Townsend") for Leave to Amend, filed October 12, 2004. For the reasons set forth in this order, Standard's motion is DENIED, and Townsend's Motion is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case was originally filed by Plaintiff Cathy Townsend against her health insurance company, Standard in the 192nd District Court in Dallas, Texas on November 12, 2003. Standard removed the case to this Court on January 15, 2004 based on diversity jurisdiction. Cathy Townsend, the insured, filed this lawsuit against her insurer, Standard, alleging, claims for breach of contract, negligence, breach of the duty of good faith and fair dealing, deceptive trade practices, punitive damages, attorneys' fees, costs, and pre-judgment and post-judgment interest. See generally (First Am. Compl.). Townsend alleges that on or about October 1999, Standard issued Townsend a "First Occurrence Critical Illness Indemnity Insurance" policy, numbered 023001285 ("the Policy"). (Sec. Am. Compl. at 2). According to Townsend, she was required to make a $220.50 payment by November 12, 2001 to maintain the policy through November 12, 2002. ( Id.). Townsend contends that she submitted a check, number 3260, on or about November 20, 2001, within the thirty-day grace period the policy provided for premium payments, but that Standard returned the check to her approximately six months later, notifying her that it was "not filled out properly." ( Id.). Seeking to reinstate her policy upon receiving this notification, Townsend contacted Standard's Dallas agent, John Ball, who told her Standard "was no longer writing this type of policy." ( Id. at 3). Townsend contends that "during this period of time, she was diagnosed with breast cancer after a routine mammogram." Townsend "passed away as a result of breast cancer on August 18, 2004."( Id.); see also (Suggestion of Death, filed October 1, 2004).
According to Townsend, "breast cancer is a `critical illness' covered under the Policy," and Townsend's lapse in coverage was caused by Standard's failure to deposit her premium payment. ( Id.).
On September 22, 2004, Standard filed a Motion to Dismiss Plaintiff's First Amended Petition under Rule 12(b)(6) for failure to state a claim, pointing out that Townsend's Petition stated that she sent her premium payment on or about November 20, 2003, which would have been nearly two years after the payment was due under Townsend's statement of facts. (Motion to Dismiss at 2); First Amended Petition ¶ 8). Standard further requested that the Court deny Townsend leave to amend, as the deadline to amend her pleadings under the Court's scheduling order expired on August 24, 2004. (Motion to Dismiss at 2). On October 1, 2004, Standard filed a "Suggestion of Death," notifying the Court that Cathy Townsend passed away on August 18, 2004. On October 12, 2004, Cathy Townsend's Estate filed both a Response in Opposition to Standard's Motion to Dismiss, and a Motion for Leave to Amend. Townsend moves for leave to amend the petition to correct "typographical errors" concerning certain relevant dates, and to re-designate the Plaintiff as the estate of Ms. Thompson.
II. ANALYSIS
A. Standard for Dismissal Under Rule 12(b)(6).
Motions to dismiss under Rule 12(b)(6) are disfavored and rarely granted. Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The Court liberally construes the complaint in the plaintiff's favor, and all pleaded facts are taken as true. Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1986). Unless it appears beyond doubt that the plaintiff cannot prove any set of facts entitling it to relief, the complaint should not be dismissed. Conley v. Gibson, 355 U.S. 42, 45 (1957).
The sole ground for Standard's motion to dismiss is that two dates contained in Townsend's complaint were incorrect. Paragraph 8 of the Plaintiff's First Amended Petition states as follows:
"[o]n or about October 22, 2002, Defendant sent Townsend a "Statement of Premium Due" for $220.50. The Statement reflected a due date of November 12, 2001, to Keep the Policy in effect through November 12, 2002. As the Policy provided a 30-day grace period for premium payments, Townsend submitted check no. 3260 made payable to Defendant in the amount of $220.50 and dated on or about November 30, 2003 to Defendant."
Townsend points out that both of the bolded years should have read 2001. (Response to Motion to Dismiss at 2). While Standard does not dispute that the dates were inadvertent clerical errors, it insists that Townsend has failed to demonstrate good cause for failure to amend before the August 24th deadline in the scheduling order expired. (Reply in Support of Motion to Dismiss at 3-4, citing S W Enter., L.L.C. v. Southtrust Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003) for the holding that a scheduling order may not be changed without a showing of good cause and by leave of the district judge). Townsend has cited a hurried filing of the complaint against a looming statute of limitations as justification for the error. (Aff. in Support of Motion for Leave). Furthermore, it is undisputed that Cathy Townsend died six days before the amendment deadline. Additionally, courts have routinely assumed the correct information when faced with typographical errors in a plaintiff's complaint. See, e.g., Orr v. Mfgr. Life Inc. Co. of North Am., 1998 WL 614651, at *3, n. 5 (N.D. Tex. September 8, 1998) (Fitzwater, J.) (noting that although the plaintiff repeatedly referred throughout his pleadings to U.S.C. § 6632, a nonexistent section, the court assumed that the improper reference was a typographical error, and that the intended reference was to U.S.C. § 6332); Chester v. Ass. Corp. Of N. Am., 2000 WL 743679, at *1, n. 5 (N.D. Tex. May 26, 2000) (Lindsay, J.) (noting that although the plaintiff's complaint alleged that he began working for Defendants in 1997, the court assumed it was a typographical error as the plaintiff's affidavit stated 1991); Stephens v. Halliburton Co., 2003 WL 22077752, at *3, n. 8 (N.D. Tex. September 5, 2003) (Lindsay, J.) (Assuming typographical error where date alleged in complaint was four months before date of stock purchase at issue); Pingree v. U.S., 1999 WL 714759, *1 n. 2 (N.D. Tex. Sept. 14, 1999) (Fitzwater, J.) (noting that date listed as 1998 in complaint rather than 1996, date in which events at issue took place, appeared to be a typographical error and assuming the correct date). Townsend filed her lawsuit on November 12, 2003. Thus, it is obvious that the erroneous statement in her original petition, alleging that she mailed her premium payment to Standard on or about November 20, 2003 was a typographical error, since that date was after the filing of the lawsuit. For these reasons, the Court DENIES Standard's motion to dismiss and GRANTS Townsend's motion for leave to amend her complaint to correct the typographical errors.
Lastly, Townsend has requested permission to re-designate as Plaintiff Ms. Townsend's father, Charles Townsend, the representative of Ms. Townsend's estate. Standard has not opposed this request. Under Federal Rule of Civil Procedure 25(a)(1), the Court may order substitution of the proper parties, in this case Ms. Townsend's estate. The Court therefore GRANTS Townsend's Motion for Leave to substitute her estate as plaintiff, and designates Charles Townsend as the plaintiff in this case.
III. CONCLUSION
For the reasons set forth in this order, Standard's motion to dismiss Townsend's claims in their entirety is DENIED, and Townsend's motion for leave to amend is GRANTED.
SO ORDERED.