     Case: 18-11600      Document: 00515181781         Page: 1    Date Filed: 10/31/2019




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

                                                                          FILED
                                    No. 18-11600                   October 31, 2019
                                  Summary Calendar
                                                                     Lyle W. Cayce
                                                                          Clerk
THOMAS PETTY, doing business as Tom Petty Trucking Company,

              Plaintiff - Appellant
v.

GREAT WEST CASUALTY COMPANY,

              Defendant - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CV-2526


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Having denied Plaintiff-Appellant Thomas Petty’s motion seeking leave
to amend his complaint, the district court dismissed Petty’s action with
prejudice. Finding no abuse of discretion in the district court’s rulings, we
AFFIRM.
       Petty, a commercial truck driver, contends that, as a result of his
involvement in two accidents involving fatalities, he suffers ongoing mental
trauma that prevents him from being able to operate a commercial truck.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 18-11600
Consequently, he seeks monetary relief for lost business earnings and mental
distress/anguish. As set forth in the magistrate judge’s October 19, 2018
Report and Recommendation, which the district court accepted, Petty,
appearing pro se, filed or has attempted to file numerous amended complaints
in the district court. Ultimately, however, the lower court denied Petty’s last
proposed amendment on grounds of futility, and, finding no viable claim had
been stated, dismissed Petty’s action with prejudice. Petty appealed.
      We review the denial of a motion to amend that was filed under Rule
15(a) of the Federal Rules of Civil Procedure for an abuse of discretion.
Crostley v. Lamar Cty., Tex., 717 F.3d 410, 420 (5th Cir. 2013). “In the context
of motions to amend pleadings, ‘discretion’ may be misleading, [however],
because Fed. R. Civ. P. 15(a) ‘evinces a bias in favor of granting leave to
amend.’” Martin's Herend Imports, Inc. v. Diamond & Gem Trading United
States of Am. Co., 195 F.3d 765, 770 (5th Cir. 1999) (quoting Dussouy v. Gulf
Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.1981)). Leave to amend must be
“freely given when justice so requires.” FED. R. CIV. P. 15(a). “Unless there is a
substantial reason, such as undue delay, bad faith, dilatory motive, or undue
prejudice to the opposing party, the discretion of the district court is not broad
enough to permit denial.” Id. (internal quotations omitted). Similarly, “[a]
district court may deny a proposed amendment for futility–meaning the
amended complaint would fail to state a claim upon which relief could be
granted.” Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir.
2016) (citing Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–73 (5th
Cir. 2000)). In that instance, our de novo review parallels that applicable to a
dismissal under Federal Rule of Civil Procedure 12(b)(6).
      Petty’s experience is unquestionably tragic. Nevertheless, on the record
before us, the district court did not err in rejecting Petty’s final motion for leave
to amend his complaint, and dismissing the action. The originally named
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                                  No. 18-11600
defendant, Great West Casualty Company, is the commercial automobile
liability insurer for Petty’s trucking company. The two accidents are alleged
to have been caused by the negligence of the other drivers, however, not a Great
West insured.
       Relative to the liability insurers for the other drivers involved in the two
accidents, adding the nondiverse insurers as defendants would have destroyed
diversity jurisdiction. “The district court, when faced with an amended
pleading naming a new nondiverse defendant in a removed case, should
scrutinize that amendment more closely than an ordinary amendment.”
Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). “[T]he court
should consider the extent to which the purpose of the amendment is to defeat
federal jurisdiction, whether [the] plaintiff has been dilatory in asking for
amendment, whether [the] plaintiff will be significantly injured if amendment
is not allowed, and any other factors bearing on the equities.” Id.
      Texas law generally does not authorize an injured third-party to sue a
liability insurer directly in lieu of suing the tortfeasor. In re Essex Ins. Co, 450
S.W.3d 524, 525 (Tex. 2014) (citing Angus Chem. Co. v. EMC Fertilizer, Inc.,
939 S.W.2d 138 (Tex. 1997)). Rather, the tortfeasor’s liability must first be
finally determined by agreement or judgment. Id. See also State Farm Cty.
Mut. Ins. Co. of Texas v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989) (injured party
is beneficiary of a liability insurance policy but cannot enforce the policy
directly against the insurer until the insured’s legal obligation to pay damages
has been established by judgment or agreement). Here, the record relative to
the rejected proposed amendment does not indicate that the liability of the
other two drivers—the alleged insureds of the non-diverse insurance
companies that Petty sought to add as additional defendants—had been finally
determined by judgment or agreement.


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                                 No. 18-11600
      And, finally, under Texas law, “a motorist owes no special duty to avoid
inflicting [purely] mental anguish damages on other users of the highway.”
Fitzpatrick v. Copeland, 80 S.W.3d 297, 304 (Tex. App. 2002). Petty’s proposed
amendment alleges only mental anguish damages, not physical bodily injury
accompanied by mental anguish damages. Texas likewise does not recognize
a general legal duty to avoid negligently inflicting mental anguish. See SCI
Texas Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 543 (Tex. 2018); City of
Tyler v. Likes, 962 S.W.2d 489, 494–97 (Tex. 1998); Boyles v. Kerr, 855 S.W.2d
593, 597 (Tex. 1993). Rather, “mental anguish damages are recoverable when
certain other legal duties are breached and the plaintiff offers a minimum
quantity of proof.” SCI Texas Funeral Servs., 540 S.W.3d at 543.               As
summarized in Likes:
             Without intent or malice on the defendant's part, serious
      bodily injury to the plaintiff, or a special relationship between the
      two parties, we permit recovery for mental anguish in only a few
      types of cases involving injuries of such a shocking and disturbing
      nature that mental anguish is a highly foreseeable result. These
      include suits for wrongful death, see Cavnar v. Quality Control
      Parking, Inc., 696 S.W.2d 549, 551 (Tex.1985), and actions by
      bystanders for a close family member's serious injury, see Freeman
      v. City of Pasadena, 744 S.W.2d 923 (Tex. 1988).

Likes, 962 S.W.2d at 496.
      Petty’s proposed amended complaint included none of these special
circumstances. Accordingly, given the numerous opportunities that Petty has
had to amend his complaint to allege a legally viable claim, we find no abuse
of discretion in the district court’s decision to dismiss with prejudice.
AFFIRMED.




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