Re-asserting Affirmative Defenses

Image of a string tied around a finger as a reminderWhen, as a responding party, you assert an affirmative defense and request a deferment, remember to re-assert the affirmative defense before the deferment period expires and/or the case proceeds to hearing. Not re-asserting the affirmative defense will cause the case to be heard without it.

For example, let’s examine a case in which a Respondent asserts the affirmative defense of policy limits and requests a deferment due to the potential of other claims against its policy limits. If, when the case is heard for the arbitrator to rule on the affirmative defense, the arbitrator agrees the deferment is warranted, he/she will need to deny the affirmative defense (accepting the affirmative defense would close the filing). Since the affirmative defense has been ruled on, it no longer exists in the case.

This is why it is so important for responding parties to revisit the case and re-assert the affirmative defense when warranted.

Article published in: February 2018 E-Bulletin