Summary Judgment Plaintiff Must Affirmatively Negate One Or More Elements Of All Defendant's Affirmative Defenses In The Initial Summary Judgment Motion, Not In Plaintiff's Reply
01/08/08
An “affirmative defense” is a “procedural tool available to defendants which seeks to defeat or avoid the plaintiff’s cause of action . . . and avers that, even if the allegations of the petition are taken as true, the plaintiff cannot prevail because there are additional facts that permit the defendant to avoid the legal responsibility alleged.” Summary judgment plaintiff must plead undisputed facts that negate one or more elements of the defendant’s affirmative defenses. Plaintiff’s motion did not plead facts and did not refer to the defendant’s Gulf Insurance defense (that a RSMo. 537.065 settlement is valid only if free of fraud and collusion and if the amount awarded to the claimant is reasonable) in plaintiff’s summary judgment motion. They waited until their reply to address defendant’s affirmative defense. A party may not save an otherwise facially deficient motion for summary judgment by bringing up new facts and arguments in reply. Nothing in Rule 74.04 permits a party to file a reply that raises arguments that should have been, but were not, included in the party’s original motion. If a defendant avers the three prong Gulf Insurance affirmative defense the moving plaintiff must affirmatively prove by undisputed facts that the RSMo. 537.065 settlement was not procured by fraud, collusion and that the amount of awarded to the claimant is reasonable. Taggart v. Cline Wood Agency, Inc., Docket No. WD67762 (Mo.App.W.D. 1/08/2008).
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