What constitutes an affirmative defense? In Stanke v State Farm Mut. Auto. Ins.Co., 200 Mich App 307, 503 NW2d 758 (1993), the Michigan Court of Appeals held that “[a]n affirmative defense is a defense that does not controvert the plaintiff’s establishing a prima facie case, but that otherwise denies relief to the plaintiff.” Stanke at 312, (citation omitted). The Court of Appeals went on to explain that an affirmative defense “is a matter that accepts the plaintiff’s allegation as true and even admits the establishment of the plaintiff’s prima facie case, but that denies that the plaintiff is entitled to recover on the claim for some reason not disclosed in the plaintiff’s pleadings.” Stanke at 312. In essence, an affirmative defense is based on legal reasons. The Court pointed to the statute of frauds as an example of an affirmative defense.
MCR 2.111(F)(3) requires that a party must state her affirmative defenses under a separate and distinct heading within her responsive pleadings, such as an answer to a complaint. Failing to state an affirmative defense in a responsive pleading constitutes a waiver of that defense. Walters v Nadell, 481 Mich 377, 389; 751 NW2d 431 (2008). MCR 2.111(F)(3)(a) contains a non-exhaustive list of numerous affirmative defenses, including, but not limited to: contributory negligence, assumption of risk, fraud, duress, statute of frauds, and immunity granted by law.
Additionally, a party must also disclose in her responsive pleadings, “a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part.” MCR 2.111(F)(3)(b). Such a defense “directly controverts plaintiff’s entitlement to prevail”, and is not an affirmative defense because it “denies that plaintiff can establish a prima facie case…”. Stanke at 313. In essence, these defenses are based on factual reasons as opposed to legal reasons.
Furthermore, MCR 2.111(F)(3)(c) requires a party to disclose any defense, that if not raised in a responsive pleading “would be likely to take the opposing party by surprise.” For example, plaintiff sues defendant for trespass. Defendant’s answer contains only a general denial, but at trial, she attempts to show adverse possession. Under MCR 2.111(F)(3)(c), this type of surprise would not be permitted.
Lastly, be careful when answering an amended complaint. MCR 2.111(F)(3) requires that affirmative defenses be raised in a party’s responsive pleading, “either as originally filed or as amended in accordance with MCR 2.118.” Under MCR 2.118(A)(4), “unless otherwise indicated, an amended pleading supersedes the former pleading.” Failing to include an affirmative defense in a party’s amended answer constitutes waiver of that defense despite the party having pled it in the original answer. Grzesick v Cepela, 237 Mich App 554, 561-562; 603 NW2d 809 (1999).