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Rule 94. Affirmative Defenses (Mar1941)

TEXT

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. Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be con­strued to change the burden of proof on such issue as it now exists.

Amended by order of March 31, 1941, eff. Sept. 1, 1941: The second sentence is new.

ADVISORY OPINIONS

(No. 99) Question: The second sentence of Rule 94 reads: "Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall spe­cifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists." As I interpret this, there can no longer be a question but that the plaintiff will not have to negative the exceptions to liability in his pleading. However, the last clause says "provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists." Does this mean that the plaintiff, while he no longer has to negative the exceptions to liability in his pleadings, and the insurer must allege the loss was due to a risk coming within a particular exception, still have to prove, that the loss is not within a particular exception to liability?

Answer: It is the opinion of this sub­committee that the rule relates only to the pleading necessary to raise certain issues in a case and does not change the burden of proof as to these issues if and when they are raised by proper pleading.

Rule 94 supersedes the line of decisions holding that the plaintiff suing on an in­surance policy is required to negative in his pleading the existence of any excep­tions to general liability contained in the policy. Under Rule 94 the defendant must now plead the presence of such exceptions if the defendant wishes to rely upon such exceptions as issues in the case to defeat liability. If the defendant fails to place such issues in the case by proper plead­ing, they are entirely out of the case, and the plaintiff need present no evidence upon such matters in order to recover on the policy. If, however, the defendant does specifically plead such exceptions and thus raise them as issues in the case, the plaintiff has the same burden of proof upon such properly raised issues as he had prior to the adoption of Rule 94.

6 Tex. B.J. 308 (1943) reprinted in 8 Tex. B.J. 36 (1945).