United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's Motion to
Strike Specified Affirmative Defenses (Doc. #99) filed on
October 31, 2019. Plaintiff moves to strike Defendant MAC
Contractors of Florida, LLC's (MAC) First, Second, and
Fourth Affirmative Defenses. MAC has withdrawn its First
Affirmative Defense (Doc. #101); therefore, only the Second
and Fourth Affirmative Defenses are at issue here. MAC filed
a Response in Opposition (Doc. #102) on November 14, 2019.
For the reasons set forth below, the Motion is granted in
part and denied in part.
insurance coverage dispute, plaintiff-insurer Southern-Owners
Insurance Company (Southern-Owners) is currently proceeding
on a Second Amended Complaint, seeking a declaratory judgment
that it has no duty to defend or indemnify defendant-insured
MAC Contractors of Florida, LLC (d/b/a KJIMS Construction)
for claims asserted in a state-court lawsuit brought by Paul
and Deborah Doppelt, styled Doppelt et al. v. MAC
Contractors of Florida, LLC d/b/a KJIMS Construction,
No. 2016-CA-1530. (Doc. #84.) MAC (d/b/a KJIMS Construction)
filed an Amended Answer, Affirmative Defenses, and
Counterclaim seeking a declaration that Southern-Owners was
obligated to defend and indemnify MAC. (Doc. #97.) Plaintiff
moves to strike the Second and Fourth Affirmative Defenses.
Federal Rules of Civil Procedure require a defendant to
“affirmatively state any avoidance or affirmative
defense.” Fed.R.Civ.P. 8(c). “An affirmative
defense is generally a defense that, if established, requires
judgment for the defendant even if the plaintiff can prove
his case by a preponderance of the evidence.”
Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th
Cir. 1999). Pursuant to Rule 12(f), courts may strike
“insufficient defense[s]” from a pleading upon a
motion so requesting, or sua sponte. Fed.R.Civ.P.
Court has recently discussed on several occasions, compliance
with Rule 8(c) requires a defendant to set forth “some
facts establishing a nexus between the elements of an
affirmative defense and the allegations in the complaint,
” so as to provide the plaintiff fair notice of the
grounds upon which the defense rests. PK Studios, Inc. v.
R.L.R. Invs., LLC, No. 2:15-cv-389-FTM-99CM, 2016 WL
4529323, at *2 (M.D. Fla. Aug. 30, 2016) (quoting Daley
v. Scott, No: 2:15-cv-269-FtM-29DNF, 2016 WL 3517697, at
*3 (M.D. Fla. June 28, 2016)). Boilerplate pleading - that
is, merely listing the name of the affirmative defense
without providing any supporting facts - is insufficient to
satisfy Rule 8(c), because it does not provide a plaintiff
adequate grounds to rebut or properly litigate the defense.
Grant v. Preferred Research, Inc., 885 F.2d 795, 797
(11th Cir. 1989); Hassan v. U.S. Postal Serv., 842
F.2d 260, 263 (11th Cir. 1988)).
argues that the Second and Fourth Affirmative Defenses only
offer bare bones conclusory allegations, are patently
frivolous, and invalid as a matter of law. MAC responds that
the affirmative defenses have provided fair notice to
Southern-Owners of its intent to rely upon ambiguity and
Second Affirmative Defense states:
As for its Second Affirmative Defense, SOUTHERN-OWNERS is
barred from the relief sought by certain ambiguities in the
policy drafted by SOUTHERN-OWNERS. Such ambiguities must be
interpreted under governing law in favor of coverage.
(Doc. #97, p. 4.)
affirmative defense, the Second Affirmative Defense is
deficient for failing to allege anything beyond a vague
reference to “certain ambiguities.” But whether
the insurance policy is ambiguous is an issue of contract
interpretation. This defense is, in effect, a denial because
it alleges defects in plaintiff's prima facie case.
See In re Rawson Food Serv., Inc., 846 F.2d 1343,
1349 (11th Cir. 1988) (“A defense which points out a
defect in the plaintiff's prima facie case is not an
affirmative defense.”). However, when a party
incorrectly labels a “negative averment as an
affirmative defense rather than as a specific denial[, ] ...
the proper remedy is not [to] strike the claim, but rather to
treat [it] as a specific denial.” Gonzalez v.
Spears Holdings, Inc., 2009 WL 2391233 (S.D. Fla. July
31, 2009) (citing Home Mgmt. Solutions, 2007 WL
2412834 at *3)). Therefore, the Court will treat
defendant's Second Affirmative Defense as a denial and
will not strike it.