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Affirmative Defenses in Maryland Under Rule 2-323(g)

Affirmative defenses, if valid, provide a complete or partial defense to plaintiffs' lawsuit. There are over 100 potential affirmative defenses. 

In Maryland, under Rule Md. Rule 2-323(g), there are 20 affirmative defenses that must be raised in the 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 assume those defenses on this list will not later be raised.  If the defendant does not include the affirmative defense in her answer, she is barred from relying on the defense to defeat the plaintiff's lawsuit. 

Affirmative Defenses and Burden of Proof

A defendant usually does not have the burden of proof when presenting a defense. But when the defendant seeks to assert an affirmative defense, she has the burden of proof and the burden of production as to the elements of that defense. 

Overpleading Affirmative Defenses

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 more credence to our "most defense lawyers do anything inside or outside the letter of the rules to cover their tail" hypothesis

Insurance defense lawyers plead the statute of limitations as an affirmative defense even in cases where it is obvious that the claim was filed within 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 for most Maryland personal injury lawyers. 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 requests for admissions

You can make them feel bad about their dime-store lawyering 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. "

court room

It is worth noting that the rule was changed such that discharge in bankruptcy or insolvency is no longer required to be raised as an affirmative defense in Maryland.

Maryland Affirmative Defenses Appellate Cases

These Maryland appellate opinions shed some light on how affirmative defenses are used in Maryland.   
  • 2020: American Radiology Services, LLC v. Reiss, 470 Md. 555, 236 A.3d 518 (2020).  An affirmative defense concedes the gist of the plaintiff's lawsuit but claims that the plaintiff cannot recover because she is precluded for some other reason.  
  • 2017: Woolridge v. Abrishami, 233 Md. App. 278, 163 A.3d 850 (2017). The failure to reassert an affirmative defense in a pretrial statement does not necessarily waiver that defense. 
  • 2004: Campbell v. Lake Hallowell Homeowners Ass'n, 157 Md. App. 504, 852 A.2d 1029 (2004). Maryland courts are not readily willing to fudge the requirement that the affirmative defense be filed with the answer.   The obligation to include affirmative defenses in an answer is not a "mere nicety" but an obligation to put the plaintiff on notice instead is required to give the plaintiff notice so she can prepare discovery accordingly. 
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