The Honorable Owen M. Panner, United States District Judge for the District 1

of Oregon, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1181

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Lachonne Bell, *

Appellant, *

v. * District Court for the

Allstate Life Insurance Company; *

Sears Roebuck & Company, *

Appellees.

*

* Appeal from the United States

* Eastern District of Arkansas.

*

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Submitted: June 12, 1998

 Filed: November 12, 1998

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Before HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and

PANNER, District Judge. 1

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HANSEN, Circuit Judge.
The Honorable Susan Webber Wright, United States District Judge for the

2

Eastern District of Arkansas.

2

Lachonne Bell appeals the grant of summary judgment by the United States

District Court for the Eastern District of Arkansas in this diversity case in which she 2

sought payment under two accidental death insurance policies upon the death of her exhusband. Bell also appeals the district court's denial of her motion to amend her

complaint. We affirm.

I.

Lachonne Bell purchased two insurance policies from Allstate Life Insurance

Company (Allstate) under master group policies. Sears Roebuck & Company (Sears)

was the policyholder in each case. One policy was an Accidental Death and

Dismemberment policy, effective January 11, 1994, and the other was an Accidental

Death policy, effective March 17, 1994. Both policies listed Lachonne Bell as the

primary insured and defined "insured person" to include "you" (defined as the primary

insured) and "if covered, your spouse." 

Lachonne Bell married Earl Bell on July 31, 1983. They were divorced on

December 8, 1994, and Earl Bell died on June 30, 1995. Lachonne Bell filed a claim

under both policies but was denied coverage because she was not married to Earl at the

time of his death and thus, he was not her spouse and not covered under the policies.

On March 20, 1997, Bell filed this diversity action to recover on the policies.

Defendants moved for summary judgment on October 24, 1997, the last day for filing

motions under the court's scheduling order. Bell filed a motion to amend her original

complaint on October 30, 1997, four working days after the court's motion cutoff

deadline, seeking to add allegations that Allstate had illegally marketed the policies and

that the policies violated Arkansas law by not including a conversion privilege. The
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district court denied the motion to amend and granted summary judgment in favor of the

defendants on November 26, 1997.

II.

A. Leave to Amend Complaint

Bell argues that the district court abused its discretion by denying her motion to

amend her complaint. A decision whether to allow a party to amend her complaint is

left to the sound discretion of the district court and should be overruled only if there is

an abuse of discretion. See Humphreys v. Roche Biomedical Lab., Inc., 990 F.2d 1078,

1081 (8th Cir. 1993); Buder v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 644 F.2d

690, 694 (8th Cir. 1981). After an answer has been filed in response to the plaintiff's

complaint, the plaintiff "may amend the party's pleading only by leave of court . . . and

leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Proper

justification for denying such a motion includes: "undue delay, bad faith or dilatory

motive on the part of the movant, . . . undue prejudice to the opposing party by virtue

of allowance of the amendment, [and] futility of amendment." Foman v. Davis, 371

U.S. 178, 182 (1962). Delay alone is insufficient justification; prejudice to the

nonmovant must also be shown. See Buder, 644 F.2d at 694 (finding that delay coupled

with a mere recitation of prejudice by the district court was insufficient to pass

scrutiny); Mercantile Trust Co. Nat'l Ass'n v. Inland Marine Prods. Corp., 542 F.2d

1010, 1012 (8th Cir. 1976) (holding that delay alone is not enough to deny a motion to

amend). Any prejudice to the nonmovant must be weighed against the prejudice to the

moving party by not allowing the amendment. Buder, 644 F.2d at 694. 

Bell filed her motion four working days after the motion cutoff date, certainly not

late enough alone to be prejudicial. However, it was also after the discovery deadline

and five weeks before trial. While the original complaint sought payment on the

policies, the amendment alleged illegal activity in the marketing of the policies as well
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as violations of Arkansas law regarding the content of the policies. Cases in which an

abuse of discretion has been found generally involve amendments based on facts similar

to the original complaint. See Sanders v. Clemco Indus., 823 F.2d 214, 216-17 (8th Cir.

1987) (finding abuse of discretion where a party was not allowed to amend his

complaint to properly plead diversity as the basis for jurisdiction); Buder, 644 F.2d at

694-95 & n.5 (finding abuse where a plaintiff was not allowed to amend his complaint

to plead fraud based on facts substantially similar to his previously pled securities law

claim). On the other hand, when late tendered amendments involve new theories of

recovery and impose additional discovery requirements, courts are less likely to find an

abuse of discretion due to the prejudice involved. See Dover Elevator Co. v. Arkansas

State Univ., 64 F.3d 442, 448 (8th Cir. 1995) (finding no abuse of discretion where trial

was less than a month away, the discovery deadline was within a week of the motion

to amend, and the amendment, adding a new theory of recovery, would leave the

opposing party inadequate time to prepare); Vitale v. Aetna Cas. & Sur. Co., 814 F.2d

1242, 1252 (8th Cir. 1987) (finding no abuse where the motion was made less than two

months before trial, no reason was given for the delay, and the amendment may have

required additional discovery on the new factual allegations). The amendments sought

in this case would require additional discovery by the parties. They would require a

review of the marketing of the policies as well as an evaluation of specific provisions

of the policies for compliance with Arkansas insurance law. The district court found

that if it allowed the amendment, it would require an extension of the already expired

deadline for motions. The issues raised by the proposed amendment involve different

factual and legal issues than the allegations in the original complaint. 

The district court denied Bell's motion because of undue delay, prejudice to the

defendants in having to reopen discovery on new substantive claims so close to the trial

date, and because the only reason for the untimeliness of the motion was Bell's lack of

due diligence. Bell argues that her new claims have merit and she will be greatly

prejudiced if the amendment is denied because the new claims are her only hope for
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victory on the merits. While this may or may not be true, the district court provided

adequate justification for its ruling. 

Bell also argues the district court should have reopened discovery in lieu of

denying the motion. It is within the district court's discretion to extend discovery, grant

a continuance, or require the moving party to compensate the opposing party for any

losses caused by allowing the amendment. See Buder, 644 F.2d at 694. But it is just

that--the district court's discretion. We are unable to say on these facts that the district

court abused its discretion in denying Bell's motion to amend her complaint.

B. Summary Judgment

Bell appeals the district court's grant of summary judgment on her claims as

originally filed, arguing that the alleged illegal activities of the defendants in relation to

the insurance policies raise a genuine issue of material fact regarding her recovery under

the policies. We review a grant of summary judgment de novo, see Dupps v. Travelers

Ins. Co., 80 F.3d 312, 313 (8th Cir. 1996), viewing the record in the light most

favorable to Bell, the nonmoving party. Summary judgment is appropriate if there are

no genuine issues of material fact in the record and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986). 

 

State law controls the construction of insurance policies when a federal court is

exercising diversity jurisdiction. Langley v. Allstate Ins. Co., 995 F.2d 841, 844 (8th

Cir. 1993) (citations omitted). We review the district court's interpretation of Arkansas

law de novo. Dupps, 80 F.3d at 313. Arkansas courts follow a long-standing rule that

the language of an insurance policy controls if the terms are clear and unambiguous.

Courts refuse to rewrite the policy to make an insurer liable for a risk that is plainly

excluded. See Vincent v. Prudential Ins. Brokerage, 970 S.W.2d 215, 216 (Ark. 1998);

Smith v. Shelter Mut. Ins. Co., 937 S.W.2d 180, 181-82 (Ark. 1997). Words are to be
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construed in their "plain, ordinary, popular sense." Langley, 995 F.2d at 844-45

(internal quotations omitted). 

Both policies in question name Lachonne Bell as the "primary insured." The

Certificate of Insurance defines "primary insured" to be "you, the individual named on

the certificate," and defines "insured person" to be "you, and if covered, your spouse."

There is nothing ambiguous about this language, taken in its ordinary sense. See

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2208 (1986) (defining "spouse"

as a "man or woman joined in wedlock: married person: husband, wife"). Lachonne and

Earl Bell were divorced December 8, 1994. Earl Bell died June 30, 1995. Earl Bell

was not an "insured person" under either policy since he was neither the individual

named on the certificate nor the spouse of that person at the time of his death. Because

there is no genuine issue of material fact regarding the coverage of Earl Bell, summary

judgment was appropriate. 

Bell argues that summary judgment was inappropriate because, as she alleges, the

insurance policies were illegally marketed and violated various Arkansas statutes.

Because the district court denied her request to amend the complaint, which we affirm,

these claims are not part of the record, see Fed. R. Civ. P. 56(c), and are not considered

when determining the summary judgment motion.

III.

For the reasons stated above, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT