Virginia: Wrongful Death – a Lawyer’s Defenses

Virginia: Wrongful Death – a Lawyer’s Defenses

On June 6, 2013, the Virginia Supreme Court issued New Dimension, Inc. v. Tarquini, No. 120760, re the pleading of affirmative defenses. Although New Dimensions involved the federal Equal Pay Act, its holding still may affect state wrongful death and personal injury cases.

New Dimensions reiterated Virginia law requires that “a party raise specific defenses (just as a plaintiff must give notice of claims) so that surprise and prejudice at trial from late revelation of unanticipated legal theories is avoided,” which “has generally led to a requirement that affirmative defenses must be pled in order to be relied upon at trial”. Id. at 9. However, the Virginia Supreme Court “has found exceptions to the general requirement that affirmative defenses be pled, including: (1) where the issue addressed by the affirmative defense was not [sic] disclosed in the plaintiff’s pleading; (2) where the affirmative defense is not an absolute bar to recovery; and (3) where the affirmative is ‘addressed by statute’.” Id. at 9-10.

“Where a defendant seeks to rely upon an affirmative defense not apparent from the allegations pled and unrelated to the elements of plaintiff’s cause of action, that affirmative defense not apparent from the allegations pled and unrelated to the elements of a plaintiff’s cause of action, must be pled to avoid unfair surprise or prejudice to plaintiff.” Id. at 10. New Dimensions observes, “Traditional affirmative defenses or special pleas that constitute an absolute bar to recovery [and mostly must be pled specifically due to their ‘collateral nature’] include ‘statute of limitations, absence of proper parties, res judicata, usury, a release, prior award, infancy, bankruptcy, denial of partnership, bona fide purchaser, and denial of an essential jurisdicational fact alleged in the bill’.” Id.

The Virginia Supreme Court in New Dimensions focused on plaintiff having been “put on notice” – and having “little risk of prejudice or surprise” – of affirmative defense assertion by exceptions/defenses being stated in the statute, by defendant’s general denial of liability, and by plaintiff acquiring knowledge of the defenses in discovery. Id. at 11-12. Hence, in state wrongful death and personal injury cases, a defendant may seek to claim that under New Dimensions it is unnecessary to plead defenses of contributory negligence and assumption of risk.