                      REVISED DECEMBER 14, 2009

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                            FILED
                                       No. 09-60058                    November 16, 2009

                                                                     Charles R. Fulbruge III
                                                                             Clerk
TIME INSURANCE COMPANY

                                    Plaintiff - Appellee

v.

LARRYE J WHITE

                                    Defendant - Third Party Plaintiff - Appellant

v.

ALBERT W SMALL

                                    Third Party Defendant - Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             Docket No. 1:08-CV-0016


Before JONES, Chief Judge, and SMITH and DeMOSS, Circuit Judges.
EDITH H. JONES, Chief Judge:*



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 09-60058

      The court has carefully considered this case in light of the briefs, oral
argument, and pertinent portions of the record. Having done so, we must
VACATE and REMAND for further proceedings.**
      The district court granted judgment on the pleadings pursuant to FED. R.
CIV. P. 12(c) against Appellant White, who asserts that a health insurance policy
he purchased before Hurricane Katrina in 2005 covered his later cancer
treatments, including chemotherapy. Because all of White’s personal papers
were destroyed by the hurricane, his original copy of the policy, if he received
one, was lost. He continued to make premium payments, however, and he
received reimbursements from the insurance company for various medical costs
he or his wife incurred. When the cancer treatment dispute arose, however,
Time Insurance sought declaratory judgment, attaching a copy of the policy as
Exhibit A to its complaint.
      In his original answer, White admitted Time’s allegation that “[e]ffective
June 1, 2005, the Defendant was issued a health insurance certificate,
No. 0058461251, by Fortis Insurance Company.” Pretrial activity ensued,
including White’s counterclaim against the insurance company and third party
claim against insurance agent Albert Small. A few months later, Time moved
for judgment on the pleadings. White responded with affidavits from himself
and Small, both of which questioned, inter alia, whether Time’s Exhibit A
accurately reflected the policy that Small procured and White purchased.
      The district court, relying principally upon this court’s decision in
Martinez v. Bally’s Louisiana Inc., 244 F.3d 474, 476 (5th Cir. 2001), held that
White’s extrinsic evidence could not counter the “judicial admission” effected by


      **
           Judge DeMoss concurs in the result only.

                                              2
                                  No. 09-60058

White’s earlier answer to the declaratory judgment petition. Accordingly, the
district court held that Exhibit A was the governing policy, and its terms
expressly precluded the coverage White seeks.
      With due respect to the district court, its efforts to streamline this case
resulted in a premature disposition.        Martinez is distinguishable because
plaintiff’s counsel specifically prevented the defendant from deposing the
plaintiff about a physical injury with the statement that she had waived all such
claims. This unequivocal and intentional statement was held to be a judicial
admission, foreclosing plaintiff’s later attempt to furnish a contrary affidavit
asserting the existence of physical injury. Martinez was decided on summary
judgment and on a developed record.
      In this case, by contrast, little if any discovery had occurred when Time
moved for judgment on the pleadings. White contends that, because he did not
have access to his original policy, he was unaware until he spoke with Small
some months after Time’s suit was filed that Time may have erroneously
relied on the policy designated Exhibit A to its original petition. This is a
plausible scenario.   Moreover, under the federal rules, White could have
amended his answer to make this alternative assertion, and amendments are to
be freely given “when justice so requires.” FED. R. CIV. P. 15(a)(2). That he did
not seek to amend in response to the motion for judgment on the pleadings, and
instead filed affidavits, should not, at this preliminary stage of the litigation,
have been held against him. Further, when the affidavits are considered in light
of the absence of the original policy and the fact that Exhibit A was not part of
a verified pleading, it is plain that White did not make an explicit or intentional
admission that waived his right further to contest a factual matter.           Cf.


                                        3
                                       No. 09-60058

Martinez, 244 F.3d at 476. Our research has revealed no similar case in which
a responsive pleading, bearing on the validity of a contested but lost document,
was held not to permit retraction or refinement at an early, non-prejudicial stage
of the litigation.
       In reaching this conclusion, we do not speculate on the merits of the
parties’ positions, which will be developed through further discovery. The
judgment of the district court is VACATED and the case REMANDED for
further proceedings consistent herewith.1




       1
        The district court dismissed White's Third-Party Complaint against Small. White does
not appeal and alleges no error in the district court's dismissal of his claim against Small.
Failure to raise an issue on appeal constitutes a waiver of that argument. United States v.
Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). The district court's order as to Small thus remains undisturbed.

                                              4
