Affirmative Defenses

 

     Affirmative defenses, if valid, provide a complete or partial defense to plaintiffs' lawsuit. There are over 100 potential affirmative defenses. In Maryland, there are 20 affirmative defenses that must be raised in defendant's answer to the Complaint or they are waived and cannot be raised later:

(1) accord and satisfaction, (2) merger of a claim by arbitration into an award, (3) assumption of risk, (4) collateral estoppel as a defense to a claim, (5) contributory negligence, (6) duress, (7) estoppel, (8) fraud, (9) illegality, (10) laches, (11) payment, (12) release, (13) res judicata, (14) statute of frauds, (15) statute of limitations, (16) ultra vires, (17) usury, (18) waiver, (19) privilege, and (20) total or partial charitable immunity.

If not pleaded, the plaintiff may usually assume that there is no issue with respect to those defenses and that the case will proceed accordingly.

Good pleading practice does not allow defendants to provide a blanket list of all affirmative defenses to blindly cover all of their bases. Naturally, defense lawyers in Maryland do exactly this, pleading every defense in every case, lending even more credence to our " most defense lawyers do anything inside or outside the letter of the rules to cover their tail" hypothesis. It is jut crazy: Insurance defense lawyers plead the statute of limitations as an affirmative defense even in cases where it is obvious that the claim was filed in the prescribed period. They even plead contract defenses in tort cases.

Typically, you can just roll your eyes and move forward. It is generally not a fight worth fighting. But if you are concerned the defendant is making a claim you are not prepared for and you have not flushed it out in interrogatories (or fear you have not), the best thing to do is send out a request for admission. You can make them feel bad about it in the process if you like: "Admit that you have no evidence to support the affirmative defense provided in your answer that statute of limitation defense applies to this case. "

It is worth nothing that nine years ago, the rule was changed such that discharge in bankruptcy or insolvency is not longer required to be raised as an affirmative defense in Maryland.  

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