Federal Courts are of two minds about many things. One of those things is the standard required for pleading affirmative defenses to complaints in Federal Court.
Two recent decisions in insurance cases illustrate the points of division on this issue. In both recent decisions, and both as noted came in insurance cases, it was held that affirmative defenses are governed by a notice pleading standard, but complaints are reviewed by the facts they allege. E.g., Clarendon America Insurance Co. v. All Brothers Painting, Inc., 2013 WL 5921538 *4-*5 (M.D. Fla. November 4, 2013)(Smith, USMJ); Guarantee Insurance Co. v. Brand Management Service, Inc., 2013 WL 4496510 *2-*4 (S.D. Fla. August 22, 2013)(Rosenbaum, USDJ).
The Guarantee Insurance Company decision sets out a detailed explanation of the differences among the Federal Courts on this issue:
Courts have developed two schools of thought regarding the pleading standard required for affirmative defenses, and the Eleventh Circuit has not yet resolved the split in opinion. Some courts have held that affirmative defenses are subject to the heightened pleading standard of Rule 8(a) set forth in the Supreme Court cases of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). [Further citations omitted.] To meet the requirements of Twombly and Iqbal, an affirmative defense would have to contain factual allegations sufficient to “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555.
Guarantee Insurance Co. v. Brand Management Service, Inc., 2013 WL 4496510 *2 (S.D. Fla. August 22, 2013). On the other hand:
Other courts, however, have held that the heightened pleading standard of Twombly and Iqbal does not apply to affirmative defenses. [Citations omitted.] These courts have pointed to the differences between Rule 8(a), which governs the pleading of claims, and Rules 8(b) and(c), Fed.R.Civ.P., which apply to affirmative defenses.
Guarantee Insurance Co. v. Brand Management Service, Inc., 2013 WL 4496510 *3 (S.D. Fla. August 22, 2013). And so this particular Federal Judge resolved the conflict among the Courts in this way:
Although this Court finds the reasoning behind the cases applying the Twombly standard to the pleading of defenses to be inherently more appealing from a policy standpoint, in the end analysis, this Court is ultimately convinced of the correctness of the cases holding that the clearness in the difference in the language between Rule 8(a) and Rules 8(b) and (c) requires a different pleading standard for claims and defenses.
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Therefore, so long as Defendants' affirmative defenses give Plaintiffs notice of the claims Defendants will litigate, and vice versa, the defenses will be appropriately pled under Rules 8(b) and (c).
Guarantee Insurance Co. v. Brand Management Service, Inc., 2013 WL 4496510 *3 (S.D. Fla. August 22, 2013).
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