Affirmative Defense

“An affirmative defense is a defense that does not negate the elements of the plaintiff’s claim, but instead precludes liability even if all of the elements of the plaintiff’s claim are proven.”  Hernandez v. County of Monterey, 306 F.R.D. 279, 283 (N.D. Cal. 2015).  In asserting an affirmative defense, a defendant does not necessarily deny the plaintiff’s allegations, but offers new evidence to avoid judgment against it.  Examples of affirmative defenses include defenses based on statute of limitations, unclean hands, judicial estoppel, equitable estoppel, etc.

On the other hand, “a defense which demonstrates that plaintiff has not met its burden of proof as to an element plaintiff is required to prove is not an affirmative defense.  Such a defense is merely a rebuttal against the evidence presented by the plaintiff.”  Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1173 (N.D. Cal. 2010).

Affirmative defenses must be raised in the defendant’s answer to the complaint or they are considered waived.  The defendant has the burden to prove its affirmative defenses.


Federal Rules of Civil Procedure, Rule 8(c)(1):

In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

McClure v. State, 834 Ga. 856 (2019):

An affirmative defense is one in which the defendant argues that, even if the allegations of the indictment or accusation are true, there are circumstances that support a determination that he cannot or should not be held criminally liable. In raising an affirmative defense, the defendant asks the finder of fact to find him not guilty of the offense charged regardless of whether he committed the underlying act. Circumstances that can support a determination that the defendant cannot or should not be held criminally liable include, but are not limited to, those that justify or excuse the prohibited act alleged. A defendant may assert alternative affirmative defenses and may assert one or more affirmative defenses while also arguing that the State failed to carry its burden of proving every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. In asserting an affirmative defense, a criminal defendant may accept for the sake of argument that the evidence authorizes a finding that he committed the act alleged in the charge at issue.

Driver v. PRO AG Management, Inc., 320 F. Supp. 3d 954 (M.D. Tn. 2018):

Under Rule 13(g) of the Federal Rules of Civil Procedure, “[a] pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim [and] may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.” An affirmative defense, however, is not a “claim” for relief.  Instead, it is a defense to a claim for relief, and, therefore, it does not provide an avenue for an award of damages.

Philadelphia Indem. Ins. Co. v. Chicago Title Ins. Co., 771 F.3d 391 (7th Cir. 2014):

A counterclaim differs from an answer or affirmative defense.  A counterclaim is used when seeking affirmative relief, while an answer or affirmative defense seeks to defeat a plaintiff’s claim.

Soicher v. State Farm Mutual Auto. Ins. Co., 351 P.3d 559 (Co. App. 2015):

An affirmative defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true.  Thus, an affirmative defense is not merely a denial of an element of a plaintiff’s claim, but rather it is a legal argument that a defendant may assert to require the dismissal of a claim, notwithstanding the plaintiff’s ability to prove the elements of that claim.

When an insurer asserts a non-cooperation defense, the insured will likely be held to have forfeited his or her right to recover under an insurance policy when, in violation of a policy provision, the insured fails to cooperate with the insurer in some material and substantial respect and this failure to cooperate materially and substantially disadvantaged the insurer.

Because an insured’s noncooperation and resulting prejudice to the insurer will thus generally defeat an insured’s claim for coverage regardless of the insured’s ability to prove his or her claims, many courts have recognized, either expressly or implicitly, that noncooperation is an affirmative defense.

An affirmative defense must be specifically asserted in a party’s responsive pleading or it is waived. Thus, courts have refused to construe an asserted affirmative defense as raising a different, unasserted defense, even when the evidence supporting the two defenses was overlapping.

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