Sample Answers to a Personal Injury Complaint
- Short version (in an auto tort case)
- Long version (paragraph by paragraph)
- Med mal
- Nursing home
- Wrongful death/product liability
- Federal court answer (I deny the sky can sometimes be blue)
Maryland Rule 2-323 addresses the manner in which defense attorneys in personal injury cases answer plaintiff's suit under Maryland law in Circuit Court. The rule states:
Rule 2-323. Answer.
- Content. A claim for relief is brought to issue by filing an Answer. Every defense of law or fact to a claim for relief in a complaint, counterclaim, cross-claim, or third-party claim shall be asserted in an answer, except as provided by Rule 2-322. If a pleading setting forth a claim for relief does not require a responsive pleading, the adverse party may assert at the trial any defense of law or fact to that claim for relief. The answer shall be stated in short and plain terms and shall contain the following: (1) the defenses permitted by Rule 2-322 (b) that have not been raised by motion, (2) answers to the averments of the claim for relief pursuant to section (c) or (d) of this Rule, and (3) the defenses enumerated in sections (f) and (g) of this Rule.
- Preliminary determination. The defenses of lack of jurisdiction over the subject matter, failure to state a claim upon which relief can be granted, failure to join a party under Rule 2-211, and governmental immunity shall be determined before trial on application of any party, except that the court may defer the determination of the defense of failure to state a claim upon which relief can be granted until the trial.
- Specific admissions or denials. Except as permitted by section (d) of this Rule, a party shall admit or deny the averments upon which the adverse party relies. A party without knowledge or information sufficient to form a belief as to the truth of an averment shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. A party may deny designated averments or paragraphs or may generally deny all the averments except averments or paragraphs that are specifically admitted.
- General denials in specified causes. When the action in any count is for breach of contract, debt, or tort and the claim for relief is for money only, a party may answer that count by a general denial of liability.
- Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted unless denied in the responsive pleading or covered by a general denial. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. When appropriate, a party may claim the inability to admit, deny, or explain an averment on the ground that to do so would tend to incriminate the party, and such statement shall not amount to an admission of the averment.
- Negative defenses. Whether proceeding under section (c) or section (d) of this Rule, when a party desires to raise an issue as to (1) the legal existence of a party, including a partnership or a corporation, (2) the capacity of a party to sue or be sued, (3) the authority of a party to sue or be sued in a representative capacity, (4) the averment of the execution of a written instrument, or (5) the averment of the ownership of a motor vehicle, the party shall do so by negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. If not raised by negative averment, these matters are admitted for the purpose of the pending action. Notwithstanding an admission under this section, the court may require proof of any of these matters upon such terms and conditions, including continuance and allocation of costs, as the court deems proper.
- Affirmative defenses. Whether proceeding under section (c) or section (d) of this Rule, a party shall set forth by separate defenses: (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.
- Defendant's information report. The defendant shall file with the answer an information report substantially in the form included with the summons if (1) the plaintiff has failed to file an information report required by Rule 2-111(a), (2) the defendant disagrees with anything contained in an information report filed by the plaintiff, (3) the defendant disagrees with a differentiated case management track previously selected by the court, or (4) the defendant has filed or expects to file a counterclaim, cross-claim, or third-party claim. If the defendant fails to file a required information report with the answer, the court may proceed without the defendant's information to assign the action to any track within the court's differentiated case management system or may continue the action on any track previously assigned.
In addition, a party may include by separate defense any other matter constituting an avoidance or affirmative defense on legal or equitable grounds. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court shall treat the pleading as if there had been a proper designation, if justice so requires.
Defense counsel in motor tort claims can file a general denial under subsection (d). A general denial makes the Anwer a non-event because there are no meaningful answers. The defendant's lawyers are relieved of the obligation of admitting or denying specific allegations in the Complaint. We get around this problem by simply including the allegations in our Complaint in our Request for Admissions.
Subsection (d) covers affirmative defenses. These defenses do not deny the truth of the allegations in the Complaint but give some alternative reason (most notably, the statute of limitations) as to why the defendant cannot be held liable. Under Maryland law, the defendant's attorney must meet the burden of proof as to the validity of an affirmative defense.
While Maryland law is not entirely clear if you can amend an answer to raise an affirmative defense not listed in the defendant's answer, most lawyers believe that if an affirmative defense is not raised in the answer in Maryland, it is waived. Most defense attorneys in auto tort and med mal cases in Maryland just list every possible affirmative defense listed in subsection (d), even those that do not apply to car accident cases. While good faith practices do not allow a party to raise every possible affirmative defense, most attorneys do anyway when filing an Answer.
Although improperly raising a defense is technically a violation of Maryland Rule 1-341 and worthy of a sanction, few lawyers would raise such a petty issue with a judge because, let's get serious, no real harm is caused. If an attorney is concerned that an affirmative defense of which they are unaware of the merits might sneak up the attorney, the best thing to do is file requests for admission that state that "You have no evidence to support your affirmative defense of [fill in defense]." This will flush out the issue.
*This page was drafted by Ron Miller.