Personal Injury Law

Motions To Strike Insufficient Affirmative Defenses

By John Day

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. 

Full post as published by Day on Torts on March 17, 2010 (boomark / email).