Day on Torts
I have had several lawyers ask me to post our most recent work in the area of filing motions to strike insufficient affirmative defenses in comparative fault cases.
I have been filing these motions since 1992. A defendant has an obligation to follow Rule 8.03 of the Tennessee Rules of Civil Procedure and set forth the facts upon which a affirmative defense, including the defense of comparative fault, is based. The failure to do so should result in the defense being stricken from the answer.
A defendant has a right to have a reasonable amount of time to investigate the case and amend their answer to assert a comparative default defense of a party or non-party. This is discussed in my article called "Party Planning for Tort Lawyers" in the November 2009 edition of the Tennessee Bar Journal.
So, here is a copy of a recent motion we filed. Here is our most recent brief. This motion was granted; the order has not been entered as of the date of this writing.
Please know that the Allgood case referenced in the memorandum is the subject of a Rule 11 motion. I would be shocked if the Tennessee Supreme Court accepted review of the case and predict that if it does the Court will affirm on the Rule 8.03 language.