Maryland Affirmative Defenses Under Rule 2-323(g)

Affirmative defenses in legal proceedings are assertions made by a defendant that, if proven, can mitigate or excuse their liability for the plaintiff’s claims. Unlike standard defenses, which typically aim to refute the plaintiff’s allegations, affirmative defenses introduce new facts or circumstances that, when established, provide a valid legal reason for the defendant’s actions. These defenses vary widely and are determined by the specific circumstances of the case.

Maryland Affirmative Defenses

In Maryland, under Rule Md. Rule 2-323(g), 20 affirmative defenses 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 cover their bases blindly. Naturally, defense lawyers in Maryland do precisely 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 evident 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.

Additional Thoughts on Affirmative Defenses in Maryland

Here are some additional thoughts to keep in mind regarding affirmative defenses in Maryland:

  1. Burden of Proof: In Maryland, it’s crucial to keep in mind that the burden of proof rests on the defendant when asserting an affirmative defense. We told you this above.  But everyone forgets the shoe is on the other foot with an affirmative defense, particularly when it comes to contributory negligence.  Make the defendant prove it and tell the jury about the defendant’s burden of proof.
  2. Criminal Cases Too: Affirmative defenses are versatile and can be raised in various legal contexts, including both civil and criminal cases
  3. Asserting It in Answer Is Often Enough: Annoyingly,  a party who initially raises an affirmative defense in their response does not automatically forfeit that defense simply because they do not reassert it during the discovery or pretrial statement phase.  Maryland appellate courts have said, there is no provision within Md. R. 2-504.2 that indicates that failing to include information about an affirmative defense like contributory negligence in a pretrial statement would result in a waiver of that particular issue. Instead, the rule specifies that various matters, including defenses, can be addressed during a pretrial conference, leaving room for the consideration of such defenses at that stage.
  4. The Statute of Limitations Is an Affirmative Defense:  Everyone forgets this.
  5. Case-Specific Defenses: Maryland law recognizes that certain affirmative defenses are only applicable in specific types of cases. For instance, the affirmative defense of self-defense is typically reserved for criminal cases, where a defendant may argue that their actions were justified due to the necessity of self-protection.
  6. Getting More Information on the Affirmative Defense Offered: When the plaintiff’s lawyer believes that they have not gotten adequate information regarding claims or defenses, they have recourse to get that information. The plaintiff can take action by either requesting a court order to compel discovery according to Md. R. 2-432(b) or seeking sanctions, which might involve preventing the non-compliant party from pursuing specific defenses, as outlined in Md. Rule 2-433(a)(2).
  7. Partial Success: A defendant doesn’t need to prove all raised affirmative defenses to prevail in a case. Even if only one of the asserted defenses is established successfully, it can lead to a favorable judgment for the defendant. This underscores the significance of carefully considering fighting back against each affirmative defense that is offered.

In summary, when dealing with affirmative defenses in Maryland, defendants bear the responsibility of proving the validity of their defenses, these defenses can be utilized in both civil and criminal cases, they may vary in applicability depending on the type of case, and achieving success with just one affirmative defense can result in a favorable outcome.

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