Michigan Court of Appeals Warns Against Boilerplate Affirmative Defenses by Reinforcing the Need to Plead Fraud with Particularity

In a recent opinion released for publication, the Michigan Court of Appeals reversed a trial court’s decision granting an insurer’s motion for summary disposition because the insurer failed to plead fraud as an affirmative defense with adequate particularity.

In Thomasina Glasker-Davis v Daman Steven Auvenshine and Meemic Insurance Company, the plaintiff filed suit to recover no-fault PIP benefits from Meemic for injuries she allegedly sustained in a motor vehicle accident. In particular, the plaintiff claimed entitlement to household replacement service benefits for care allegedly provided to her on a daily basis. At her deposition, the plaintiff testified that she only received household replacement services two to three times per week. As a result, Meemic moved for summary disposition, arguing that plaintiff’s claims were barred due to fraud. The trial court granted Meemic’s motion.

On appeal, the plaintiff argued that Meemic failed to properly raise fraud as an affirmative defense. The Court of Appeals agreed with the plaintiff and reiterated the longstanding requirement that an affirmative defense of fraud must contain sufficient particularity to afford opposing parties the opportunity to respond.

The Court of Appeals went on to warn litigants against pleading “boilerplate” affirmative defenses. The opinion explains that since affirmative defenses serve the same purpose as pleadings and can be amended, litigants should avoid pleading too many affirmative defenses regardless of whether there is factual support for a given defense. Instead, litigants should amend affirmative defenses on an ongoing basis, as information is obtained through the course of discovery. The court opined that raising a “laundry list” of affirmative defenses precludes a meaningful response from the opposing party and defeats the purpose of affirmative defenses.

This decision will likely bolster arguments raised by plaintiffs regarding the nature and content of affirmative defenses asserted by insurers at the outset of litigation. Litigants may be wise to heed the advice of the Court of Appeals and raise only those affirmative defenses which they can actually support through the evidence discovered to date, and consider amending their affirmative defenses as additional facts are uncovered.

Danielle DePriest is dedicated to effectively and efficiently achieving the best possible results in the insurance defense cases she handles.

Danielle’s interest in public policy led her to the practice of law. She earned a Bachelor of Arts from the University of Michigan’s Gerald R. Ford School of Public Policy, and served as Vice Chair of American Movement for Israel and Chair of the Programming Board for Michigan Hillel.