“An affirmative defense is a defense which admits the cause of action [asserted in the plaintiff’s complaint], but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability.” State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1079 (Fla. 2014) (quoting St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002)). If a valid affirmative defense is timely plead and proven, it could totally defeat or partial reduce, the claims raised by the plaintiff in the complaint.
“Affirmative defenses do not simply deny the facts of the opposing party’s claim. They raise some new matter which defeats an otherwise apparently valid claim.” Wiggins v. Portmay Corp., 430 So. 2d 541, 542 (Fla. 1st DCA 1983) (citation omitted). See also, Wooten v. Collins, 327 So. 2d 795, 797 (Fla. 3d DCA 1976) (citation omitted) (“[A]ffirmative defenses are pleas of confession and avoidance. They admit the facts of the opposing party’s complaint but raise some new matters which defeat the opposing party’s valid claim.”); Tropical Exterminators, Inc. v. Murray, 171 So. 2d 432, 433 (Fla. 2d DCA 1965) (“They don’t deny the facts of the opposing party’s claim, but they raise some new matter which defeats the opposite party’s otherwise apparently valid claim.”).
Consequently, a mere denial of the allegations in a complaint cannot form the basis of an affirmative defense. Gatt v. Keyes Corp., 446 So. 2d 211, 212 (Fla. 3d DCA 1984). See also, Zito v. Wash. Fed. Sav. & Loan Assoc., 318 So. 2d 175, 176 (Fla. 3d DCA 1975) (“[T]hat portion of the affirmative defense alleging that the note was not in default does not constitute an affirmative defense, but is merely a denial.”). Under clearly established law, such arguments, while defensive in nature, do not constitute “affirmative defenses,” which are limited to matters in the nature of a “confession and avoidance.” Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So. 2d 311, 313 (Fla. 5th DCA 1985).
Recognized Affirmative Defenses
There are a myriad of legally recognized affirmative defenses under Florida law. A discussion of each is beyond the scope of this article. However, the affirmative defense known as laches was the topic of a prior article. Nevertheless, the most common affirmative defenses are listed in Florida Rule of Civil Procedure 1.110.
Rule 1.110 states: “In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.” Fla. R. Civ. P. 1.110(d).
The pleading requirements for an affirmative defense under Florida law are similar to those required for a pleading seeking affirmative relief. Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 137–38 (Fla. 4th DCA 1988). Therefore, like a complaint, an affirmative defense is required to allege ultimate facts establishing the defendant’s entitlement to relief under the legal principle involved, and an affirmative defense which alleges only legal conclusions is insufficient.
In other words, “certainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.” Thompson v. Bank of N.Y., 862 So. 2d 768, 771 (Fla. 4th DCA 2003) (quotation omitted). See also, Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982) (internal citations omitted) (“Certainty is required when pleading defenses and claims alike, … and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.”); Walker v. Walker, 254 So. 2d 832, 833–34 (Fla. 1st DCA 1971) (“Just as in the statement of a claim, the requirement of certainty will be insisted upon in the pleading of a defense.”).
Purported affirmative defenses that do not satisfy this test are properly stricken. See, e.g., Cady 528 So. 2d at 137–38 (striking affirmative defenses where “[a] careful analysis of each of the affirmative defenses reflects that they are, on the whole, conclusory in their content, and lacking in any real allegations of ultimate fact demonstrating a good defense to the complaint.”); Gatt, 446 So. 2d at 212 (“The matters raised by Gatt’s affirmative defense simply denied the facts contained in the broker’s complaint and did not raise any new matters to defeat the complaint. As such, the trial court acted properly in striking the second affirmative defense.”); Chris Craft Indust., Inc. v. Van Walkenberg, 267 So. 2d 642, 645 (Fla. 1972) (trial court properly struck affirmative defense which alleged only conclusions of law without supporting ultimate facts).
Burden of Proof and Waiver
The burden of proof on an affirmative defense rests with the defendant who raises the defense. In other words, “[t]he plaintiff is not bound to prove that the affirmative defense does not exist.” State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1079 (Fla. 2014) (quotation omitted). Moreover, affirmative defenses must be asserted in the answer otherwise they are waived. See, e.g., JoJos Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003) (affirmative defenses are waived if not pled); Goldberger v. Regency Highland Condo. Ass’n, Inc., 452 So. 2d 583, 585 (Fla. 4th DCA 1984) (noting that failure to plead an affirmative defense waives that defense); Wooten, 327 So. 2d at 797–98 (“It is well established that if an affirmative defense is not pleaded, it is waived.”).