Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

I have had several lawyers ask me to post our most recent work in the area of filing motions to strike insufficient affirmative defenses in comparative fault cases.

I have been filing these motions since 1992.   A defendant has an obligation to follow Rule 8.03 of the Tennessee Rules of Civil Procedure and set forth the facts upon which a affirmative defense, including the defense of comparative fault, is based.   The failure to do so should result in the defense being stricken from the answer.

A  defendant has a right to have a reasonable amount of time to investigate the case and amend their answer to assert a comparative default defense of a party or non-party.  This is discussed in my article called "Party Planning for Tort Lawyers" in the November 2009 edition of the Tennessee Bar Journal. 

So, here is a copy of a recent motion we filed.   Here is our most recent brief.   This motion was granted; the order has not been entered as of the date of this writing.

Please know that the Allgood case referenced in the memorandum is the subject of a Rule 11 motion.  I would be shocked if the Tennessee Supreme Court accepted review of the case and predict that if it does the Court will affirm on the Rule 8.03 language. 

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There are numerous differences in the state rules of civil procedure and the federal rules of civil procedure.  For example, Tennessee Rule 8.03 is different than F.R.C.P. Rule 8(c) because it requires a defendant who pleads an affirmative defense to set forth facts that form the basis of the defense.  Here is the text of the rule:

In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption of risk, comparative fault (including the identity or description of any other alleged tortfeasors), discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver, workers’ compensation immunity, and any other matter constituting an affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation.  {Emphasis added.}

Why is this important?  A defendant cannot simply say "there was insufficiency of service of process" or "I allege the comparative fault of Smith."  No, the defendant must go further and set forth the facts that support that defense.   Of course,  the allegations of those facts can be changed via amendment under Rule 15, but the initial pleading raising the defense must include facts.  If not, the court should strike the affirmative defense Rule 12.06 as insufficient.  

A new decision of the Tennessee Court of Appeals makes it clear that Rule 8.03 means what it says.  Allgood v. Gateway Health Systems,  No. MC-CC-CV-MA-06-391 (Tenn. Ct. App. Sept. 22, 2009) did not let a defendant who asserted an insufficiency of process that was bare of any facts use that defense to seek dismissal of the case after the plaintiff could not longer cure the deficiency.

The Allgood  decision will be addressed in more detail in the November issue of the Tennessee Trial Law Report.   Click here to subscribe.

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