§ 16.6 Affirmative Defenses

• Library: Oregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 16.6 AFFIRMATIVE DEFENSES

§ 16.6-1 Purpose of Affirmative Defenses

An affirmative defense does not directly controvert the allegations of the claim to which it responds; instead, it alleges new facts that, if true, defeat the claim. Buchtel v. Evans, 21 Or 309, 312, 28 P 67 (1891). Accord Hubbard v. Olsen-Roe Transfer Co., 110 Or 618, 626-27, 224 P 636 (1924). See Pacificorp v. Union Pac. R.R., 118 Or App 712, 717, 848 P2d 1249 (1993). For example, the statute of limitations does not deny the merits of the claim; it asserts, instead, that the claim is untimely, and thus barred even if meritorious.

In Buchtel, 21 Or at 312-13, real estate brokers brought an action for commissions. The defendant denied various allegations in the complaint but did not plead any affirmative defenses. Nevertheless, the trial court received evidence that the contract for commissions was illegal and instructed the jury on the effects of the alleged illegality. The trial court entered judgment for the defendant, and the supreme court reversed. Illegality is an affirmative defense that admits the contract but prevents its enforcement. Accordingly, the defense should have been pleaded affirmatively. See § 16.6-2 (pleading affirmative defenses).

§ 16.6-2 Pleading Affirmative Defenses

An affirmative defense must be "set forth affirmatively." ORCP 19 B. Otherwise, it cannot be raised at trial or on appeal. Pacificorp v. Union Pac. R.R., 118 Or App 712, 717, 848 P2d 1249 (1993) (trial); Simpson v. Simpson, 83 Or App 86, 89, 730 P2d 592 (1986), rev den, 303 Or 454 (1987) (same); Davis v. Vesely, 75 Or App 591, 596-97, 707 P2d 627 (1985) (same); Hawkins v. City of La Grande, 315 Or 57, 62-64, 843 P2d 400 (1992) (appeal).

PRACTICE TIP: By the "doctrine of aider," a defective pleading may be aided or corrected by allegations in an opponent's pleading or by expressed or implied consent. See Catlin v. Jones, 48 Or 158, 163, 85 P 515 (1906). If the defendant fails to read the complaint carefully and, in the process of alleging affirmative defenses, supplies the allegations missing in the complaint, the error in the complaint is thereby corrected.

The normal rules of variance apply. If a defendant fails to plead an affirmative defense but the parties try the defense anyway, the court may treat the defense as if it had been pleaded. ORCP 23 B; see Whinston v. Kaiser Found. Hosp., 309 Or 350, 355, 788 P2d 428 (1990), overruled on other grounds by Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 61 P3d 928 (2003) ("a pleading for all practical and legal purposes is automatically amended whenever an issue not raised by the pleading is tried by consent"); Sloan v. Providence Health Sys.-Or., 282 Or App 301, 316, 386 P3d 203 (2016), aff'd sub nom Sloan ex rel. Estate of Sloan v. Providence Health Sys.-Or., 364 Or 635, 437 P3d 1097 (2019); Hammond v. Hammond, 296 Or App 321, 326-27 & n 3, 438 P3d 408 (2019).

Certain affirmative defenses are waived if not included in an ORCP 21 A motion or a responsive pleading. ORCP 21 F; ORCP 21 G(1). See chapter 19 for discussion of consolidation, waiver, and preservation of defenses.

An affirmative defense need not be asserted in response to a claim that anticipates the defense and alleges facts to avoid it. In that situation, a simple denial is sufficient to raise the defense. Taylor v. Barbecue Time, Inc., 100 Or App 497, 500, 786 P2d 1303 (1990).

In Charles v. All Nation Ins. Co., 96 Or App 480, 482, 773 P2d 13 (1989), the plaintiff brought an action for a judicial declaration that he had an insurance policy with the defendant insurer covering damage...