24 July

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Unclean Hands Affirmative Defense

In Florida, and many jurisdictions, there is an equitable affirmative defense known as unclean hands. Most of the time, it is pled as an affirmative defense incorrectly. It is asserted, but not really a defense a party can ever prove. It is a hard defense to prevail on because it is akin to fraud: Unclean hands is an equitable defense much like fraud. The defense applies to bar an equitable claim no matter the claim's merits when “the plaintiff has engaged in some manner of unscrupulous conduct, overreaching, or trickery that would be ‘condemned by honest and reasonable men.' ” U.S. Bank...

10 November

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Refuting Affirmative Defenses in Motion for Summary Judgment

Posted by David Adelstein

in Appeal, Burden of Proof

When a plaintiff moves for summary judgment, the plaintiff has the burden to negate affirmative defenses. Failing to address applicable affirmative defenses provides no value because the plaintiff has not done anything to refute the defense or establish its legal insufficiency. Summary judgment should not be granted if a plaintiff fails to address applicable affirmative defenses. “‘Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met.’” Hurchalla v. Homeowners...

30 June

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Striking an Affirmative Defense

Posted by David Adelstein

in Appeal, Standard of Review

I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy. Yet, in a different context, this case deals with a trial court striking a defendant's (insurer) affirmative defense and precluding the defendant (insurer) from amending its affirmative defense prior to trial. “The standard of review of an order striking an affirmative defense is abuse of discretion. An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of...

22 July

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Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent

Posted by David Adelstein

in Trial Perspectives

The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides: Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with particularity. It is common for a plaintiff to generally plead in its complaint, “All conditions precedent have been performed or have occurred.” A defendant may want to assert an affirmative defense attacking or denying this allegation relating to the plaintiff’s failure to satisfy certain conditions precedent. In...

13 January

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Do I or Do I Not File a Reply to Affirmative Defenses?

Posted by David Adelstein

in Trial Perspectives

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...

16 July

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Illegality of Contract as Affirmative Defense

Posted by David Adelstein

in Trial Perspectives

There is an affirmative defense known as “illegality of contract.” Under this defense, the defendant is claiming that performance under its contract became illegal to perform; thus, the defendant should be excused from further performance. Just like any affirmative defense, the burden is on the defendant to prove the illegality of contract. See Novak v. Gray, 469 Fed. Appx. 811, 813-14 (11th Cir. 2012) (defendant has burden of proving defense of illegality of contract). An example of the application of this defense can be found in the dispute between a commercial landlord and its tenant in Lucas Games, Inc. v. Morris...

01 April

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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

Posted by David Adelstein

in Burden of Proof, Jury Instructions

When a defendant is sued, the defendant will typically assert affirmative defenses (or defenses to the claims asserted by the plaintiff). Just like a plaintiff has the burden of proof to prove its claims against a defendant, the defendant has the burden of proof to prove its affirmative defenses. The recent opinion in Bongiorno v. Americorp., 40 Fla L. Weekly D760c (Fla. 5th DCA 2015) exemplifies that a defendant that asserts an affirmative defense has the burden of proving that defense. This case was a personal injury negligence case. The defendant argued that the plaintiff’s negligence contributed to her negligence, i.e.,...

24 January

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Proving Defense of Unilateral Mistake

Posted by David Adelstein

in Trial Perspectives

One affirmative defense to a breach of contract claim is the defense known as “unilateral mistake.” This is not an easy defense to prove and the party asserting this as a defense has the burden to prove it. Under this defense, the argument is that the contract cannot be enforced because there was a unilateral mistake that induced the party into entering into the contract. To prove the affirmative defense of unilateral mistake, the party asserting this defense must prove the following four elements: “(1) [T]he mistake was induced by the party seeking to benefit from the mistake, (2) there is no...

25 December

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How the Defense of Set-Off Applies

Posted by David Adelstein

in Evidence

Set-off is a popular topic or defense raised in civil disputes. In contract actions, set-off must be raised as an affirmative defense and proven at trial (and determined by the trier of fact) or else the defendant waives the right to assert set-off. See Felgenhauer v. Bonds, 891 So.2d 1043, 1045 (Fla. 2d DCA 2004). What about tort actions such as negligence actions in disputes involving personal injury or property damage? For instance, say a plaintiff sues three defendants in negligence for the same damage. Prior to trial, the plaintiff settled with two of the defendants for a total of $100,000 and...

03 March

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Take Time Crafting Your Verdict Form

Posted by David Adelstein

in Trial Perspectives

Take time to properly craft YOUR special interrogatory verdict form. This is the verdict form that goes back with the jury to answer in rendering its verdict. The questions, instructions, and the order of the questions in the verdict form need to flow and make sense. In a recent property insurance coverage dispute, a jury rendered a verdict on a special interrogatory verdict form. The special interrogatory verdict form was, perhaps, not a model of perfection in asking the jury questions to answer. In answering the verdict form, the jury answered the 5th question “yes” that the insurer established that the damage...