I’ll be the first to tell you that I seldom file a reply to affirmative defenses unless I am truly looking to avoid an affirmative defense – I have a defense to the defense. When I do file a reply, it is typically specific and catered to a specific defense (again, a specific defense to a specific affirmative defense). This is an important consideration and not filing a reply and specifically avoiding a defense (when you have a defense to the defense) can be problematic as an insured recently found out in an insurance coverage dispute. Thus, if you have an avoidance to a specific affirmative defense, raise it in a reply!
The insured filed an insurance coverage dispute and the insurer relied on an exclusion in the policy. The insured, however, never filed a reply to the affirmative defense. When the insurer moved for summary judgment on the exclusion, the insured tried to argue waiver, that the insurer’s conduct waived its right to this affirmative defense. Well, this is an avoidance of the defense (a defense to a defense) and should have been raised in a reply. But, it was not. The trial court granted the summary judgment in favor of the insurer and on an appeal the appellate court agreed – the insured failed to preserve its waiver argument because it never raised its waiver defense to the insurer’s affirmative defense through a reply:
We reject Gamero’s [insured’s] argument that Foremost [insurer] waived its right to rely upon the marring exclusion [in the insurance policy] by its pre-suit conduct in initially acknowledging coverage and paying a portion of the claim. Moreover, even if such actions by Foremost amounted to a waiver, Gamero failed to preserve the issue below. After Gamero filed suit for breach of the insurance contract, Foremost answered and asserted, as an affirmative defense, that Gamero’s claim was excluded from coverage because the loss constituted marring. Gamero, however, failed to reply to, or avoid, this affirmative defense by alleging, as he does in this appeal, that the affirmative defense was waived by Foremost’s conduct in initially acknowledging coverage and paying a portion of the claim. Instead, Gamero raised this issue, for the first time, in opposition to Foremost’s motion for summary judgment. The trial court was correct in not considering this issue, raised for the first time in opposition to Foremost’s motion for summary judgment.
Gamero v. Foremost Ins. Co., 42 Fla. L. Weekly D158b (Fla. 3d DCA 2017).
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