Pleading: Affirmative Defense

Miller v. State Fund [9/20/00] 2000 MTWCC 63 Claimant's motion in limine to exclude evidence of fraud at trial was not proper where claimant, in essence, sought to strike an affirmative defense but had not moved for partial summary judgment or to strike. The motion to exclude was also denied because no agreement to drop fraud defense arose from communications to Clerk of Court by counsel.
Baumgartner v. Liberty NW [4/14/97] 1997 MTWCC 19 Estoppel is an affirmative defense that must be plead by the insurer. Where the defense was not plead and does not appear in the pretrial order, the insurer cannot raise it at trial to argue claimant cannot recover for an occupational disease where it accepted liability for his condition as an injury. Moreover, the estoppel defense is meritless where claimant did not mislead the insurer into accepting liability for his condition as an injury.