We have all seen it. We have all, probably, done it.
We are answering a complaint on behalf of our client, and we need to plead affirmative defenses. We are all keenly aware of the requirement in MCR 2.111(F) that a “defense not asserted in the responsive pleading or by motion as provided in these rules is waived”. So, we cut and paste the list of affirmative defenses listed in MCR 2.111(F)(3) and we file these defenses with the court.
But simply listing affirmative defenses is not enough. Indeed, the plain language of the court rule requires a party asserting affirmative defenses to “state the facts constituting” the affirmative defenses listed.
Recently, the Michigan Court of Appeals, in a published opinion has put some teeth into this rule and provided guidance to parties as to what constitutes a properly pled affirmative defense. Glasker-Davis v Auvenshine, ____ Mich App ___; ___ NW2d ___ (Docket No. 345238) (Aug. 13, 2020). In Glasker-Davis, the plaintiff filed an action for benefits under her auto insurance policy following an auto accident. The insurer-defendant “filed a forty-six-paragraph list of affirmative defenses, most of which are also boilerplate. One of those affirmative defenses stated in full, ‘The Plaintiff has given false and/or conflicting information to Defendant, thus, are [sic] fraudulent in nature.’” Id. at p. 2. In discovery, the plaintiff testified that not all the services she sought payment for were actually performed. The defendant moved for summary disposition based on the fraud provision in its policy, which voided the policy if the insured misrepresented any material fact in her application for benefits. The plaintiff argued that the defendant could not defend the claim based on fraud because it had not pled fraud as an affirmative defense. The trial court did not directly address that argument, but instead found that the Plaintiff had affirmatively misrepresented the number of days for which services were provided and the fraud provision in the contract voided the policy. The trial court dismissed the action.
On appeal, the Court of Appeals reversed the trial court’s dismissal order. The Court of Appeals held that the defendant had failed to plead fraud as an affirmative defense as required by the court rules, and, thus, the trial court could not dismiss the action on the defendant’s summary disposition motion.
Specifically, regarding the failure to plead the affirmative defense of fraud, the Court of Appeals held that:
under ordinary notice-pleading requirements, merely enumerating [a] laundry list of affirmative defenses gives the plaintiff no more notice, in the context of an affirmative defense, than a statement that ‘I deny I’m liable’, gives in the context of an ordinary defense.
a tome of disconnected boilerplate affirmative defenses, many of questionable relevance, does not provide the opposing party with any meaningful way to respond. Furthermore, it is difficult to understand how doing so could possibly be considered the result of a reasonable inquiry, or well grounded in fact or warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. . . . In any event, the affirmative defense of fraud, . . . is a notable exception to the general notice-pleading requirements and requires significantly more detailed and stringent allegations.
Thus, it is insufficient simply to state that a plaintiff’s conduct had been fraudulent. Meemic accurately points out that it went beyond merely stating that plaintiff committed fraud. However, Meemic still only vaguely stated that plaintiff had provided Meemic with some unidentified information, at an unidentified time, that was incorrect or inconsistent in an unidentified way. [Id. at pp. 5-6 (internal quotations and citations omitted)].
In addition to clarifying that a bare bones recitation of the names of affirmative defenses will not suffice to state an affirmative defense, the Court of Appeals also offered guidance on how to properly plead affirmative defenses. The court recognized that, at the outset of an action, the defendant may not know all the facts that will support its affirmative defenses, or that other affirmative defenses may only become known after discovery commences. So, what is a defendant to do?
The Court of Appeals answer: amend the affirmative defenses. As the court explained:
Michigan’s procedural rules recognize and account for the fact that it may not be possible to plead fraud, or indeed anything else, with particularity at the commencement of a case. A party may move to amend its affirmative defenses at any time, and leave should be granted freely unless doing so would prejudice the other party. [Id. at p. 5].
The lesson in Glasker-Davis is clear: simply cutting and pasting a list of affirmative defenses from the court rule is insufficient. Defendants must plead facts that, if true, support the affirmative defenses. If the facts are unknown at the time the affirmative defenses are due, or other affirmative defenses become known through discovery, then the defendant should amend its affirmative defenses. The court also made the consequences clear: left unamended, affirmative defenses that are not properly pled cannot support a motion for summary disposition.