Legal Memorandum: Use of Specific Terminology in a Defense

Issue: Is the use of specific terminology required to raise a particular defense in Minnesota?

Area of Law: Litigation & Procedure
Keywords: Defenses; Use of specific terminology; Verbal agreement, Waiver
Jurisdiction: Federal, Minnesota
Cited Cases: 427 F.2d 504; 326 F. Supp. 332; 346 F.3d 579; 454 F.2d 693
Cited Statutes: Fed. R. Civ. P. 8(c)
Date: 04/01/2013

The use of specific terminology is not required.  In Barnwell & Hays, Inc. v. Sloan, 564 F.2d 254 (8th Cir. 1977), for instance, the plaintiff argued that the district court erred by allowing the defendant to introduce evidence on the affirmative defense of waiver, because that defense was not raised in the pleadings.  Id. at 255.  In its answer to the amended complaint, the defendant in Barnwell & Hays had referenced the parties’ “verbal agreement,” which, the defendant argued, established waiver.  Id.  The plaintiff countered that the “verbal agreement” language was insufficient pleading of the affirmative defense of waiver under Fed. R. Civ. P. 8(c), but the appellate court disagreed.  Id.

The Eighth Circuit court acknowledged that waiver is an affirmative defense that must be affirmatively pleaded, and that the defendants’ answer did not contain the word “waiver.”  Id.  “The failure to use this specific terminology, however, does not necessarily mean that the answer did not raise the affirmative defense.”  Id.  The Barnwell & Hays court cited, as an example, the case of Mutual Creamery Insurance Co. v. Iowa National Mutual Insurance Co., 427 F.2d 504 (8th Cir. 1970), in which the defendant’s answer referred to a second insurance policy replacing the original policy as a “legal novation.”  Id.  The Eighth Circuit held in that case that the pleading was sufficient to raise the affirmative defense of ratification, even though the term “ratification” was not employed.  Id. (citing Mutual Creamery Ins., […]

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