Rule 94.Affirmative Defenses

Rule 94 makes certain defenses “use it or lose it.” In responding to a pleading, a party must set forth affirmatively any defense of avoidance or affirmative defense — the rule names a long list, including accord and satisfaction, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. A defense not pleaded is generally waived.

The rule adds a special provision for insurance. When a suit is on a policy that insures against general hazards but limits that liability by exceptions, the insured need not plead that the loss falls outside an exception; the insurer must specifically allege that the loss came within a particular exception to raise the issue. The burden of proof is left as it stands.