Affirmative Defenses in Virginia: Statute of Limitations, Illegal Contract, Payment, and Other Defenses You Must Prove

As always, prior to reading this post please review my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Many people at risk of being sued seem to think that if a certain thing happens, they are safe.  "If I pay, I can't be sued," or "the statute of limitations has passed, I can't be sued."  In reality, however, this is incorrect.  You can essentially be sued at any time for anything.  If you are sued improperly, however, there are two ways you can defend yourself.  First, you can deny the allegations of the lawsuit.  Second, you can present an "affirmative defense," something that, even if the allegations of the lawsuit are true, means you are immune from suit.  Of course, you can also do a combination of the two.

Affirmative defenses are important to understand for three reasons.  First, they can protect you even if the allegations of the lawsuit against you are true.  Second, they are fully waivable - meaning if you have an affirmative defense available to you but you don't use it, you lose it.  Third, unlike the core of the lawsuit, where the burden is on the plaintiff to prove the truth of his or her allegations, with an affirmative defense the burden is on you, the defendant, to prove its truth.

In today's blog post, I will talk about how to assert affirmative defenses, provide an incomplete list of those defenses, and get into the details of a few of them.

How to Assert an Affirmative Defense

So the first question you might have is, if you have an affirmative defense available, and you know that it's a "use it or lose it" situation, how do you actually "use it"?  Well, if you're a regular reader of my blog, you won't be surprised to learn that this answer varies somewhat depending on what court your case is in.

In the Circuit Court, you must assert your affirmative defenses in your Answer when you file your Answer.  If you file an Answer (as opposed to another responsive pleading, something I won't get into today) but leave out any affirmative defense, you lose that defense.  This fact causes many attorneys in Virginia to answer lawsuits with just a list of many possible defenses, even if they have no reason to think that any one of the given defenses applies to the case, since they can drop that defense if they are actually challenged on it.  To me, this practice borders on unethical, since lawyers are not supposed to sign pleadings we know to contain frivolous positions, and as such is something I do not do, but I can understand why an attorney looking to make sure he is providing all possible protection to his client would do it.

In the General District Court and the General District Court's Small Claims Division, you don't need to do anything prior to trial.  At trial, you can assert your defense then.  The exception would be if "pleadings" are ordered in the General District Court.  If so, then you must include all such defenses in your "Answer and Grounds of Defense" (the affirmative defenses are the "grounds of defense"), or else they are waived.

It is unusual to have affirmative defenses apply in the Juvenile & Domestic Relations District Court, but not unheard of (in fact, I've used a couple myself just recently).  In those situations, how you assert them really varies on a case by case basis.  Sometimes you can wait until trial, sometimes you need to include them in a responsive pleading.  Really, it's best to ask an attorney what to do in any given situation.

What Are The Affirmative Defenses?

So, what are the affirmative defenses available in Virginia?  Unfortunately, there is no comprehensive list, and new ones appear in cases every now and then.  The basic way to think of it, though, is that if you have a defense available to you that would allow you to win even if the allegations of the lawsuit were true, then that's going to be an affirmative defense.  Another way to think about it is if the lawsuit says something didn't happen, and you say it did, then you probably have an affirmative defense (since proving something happening is easier than proving something not happening).

Unfortunately, neither of these general rules are anywhere near perfect, and you're best off asking an attorney.  However, I do have a partial (emphasis on partial) list of 16 common affirmative defenses in Virginia:

1. Statute of Limitations
2. Payment of the Debt or Obligation
3. Accord and Satisfaction
4. Assumption of the Risk
5. Duress or Undue Influence in a Contract Case
6. Fraud
7. Contract in Violation of Public Policy
8. Lack of Consideration in Contract
9. Failure to Mitigate Damages
10. Contributory Negligence
11. Waiver of the Claim
12. Res Judicata
13. Performed as Required Under Contract
14. Privilege in a Defamation Case (note that "truth" is no longer an affirmative defense, but rather "falsity" is now a component of the core case in defamation)
15. Contract Requires Illegal Conduct (subset of public policy violation)
16. Debt Discharged in Bankruptcy

When I was in law school, I had a professor (Kent Sinclair - a very influential man in Virginia legal policy) who had compiled an even longer list of affirmative defenses, but many of those are a little too case specific to warrant getting into here.

So, What Are These Defenses?

Some of the above defenses are pretty self-explanatory.  Others, their name really does not tell you anything about them.  So here's a brief description of each:

Statute of Limitations - A period of time set by law after which a certain type of lawsuit cannot be brought.  Note, however, that since this is an affirmative defense, failure to raise it in your Answer in Circuit Court, for example, waives it.  So, you could be sued for breach of contract (5 year statute of limitations if contract is written) 20 years later, and if you don't raise the defense the court won't do it for you and the lawsuit will proceed.

Payment of the Debt or Obligation - This is fairly self-explanatory - the lawsuit accuses you of not paying money you owed, but you know you actually did pay.  As I explained back in January, this is why it is very important to keep good records.  Since payment is an affirmative defense, it is on you to prove you paid, not on the other side to prove you didn't.

Accord and Satisfaction - This is a bit of a subset of the above - basically you are saying you settled this dispute and have not violated that settlement.  Accord and satisfaction is a two-part defense.  First you must prove that there was an agreement regarding settlement of this issue - the "accord."  Then you must prove that you are in compliance with your responsibilities under that agreement - the "satisfaction."

Assumption of the Risk - This is a fairly complicated defense that has fallen out of favor with the courts over the past couple of decades, but is still in use.  This is a defense to a negligence claim that basically says the plaintiff knew what he or she was getting into.  The classic "assumption of the risk" case is a slip and fall in a grocery store where liquid has been negligently left on the floor.  If the defendant can prove that the plaintiff knew the liquid was there but chose to walk there anyways, there's a good assumption of the risk defense.  This, by the way, is a very good reason for stores to always put out a "wet floor" warning sign.

Duress or Undue Influence - These are defenses in a contract case that basically say you didn't actually consent to the contract, but rather you signed it because you had to in order to avoid unrelated bad consequences.  The classic duress case is someone holding a gun to your head and telling you to sign, but it's really almost any situation in which you signed because you were reasonably fearful of the consequences of failure to sign.  Undue influence occurs when someone has so much influence over you they are able to overwhelm your independent thought and get you to sign.  As you can probably guess, this is hard to prove, but is most commonly found in contracts signed by elderly parents at the suggestion of their children.

Fraud - This is a contract defense whereby you cannot be said to have actually consented to the contract because part of your reason for consent was based on a lie told to you by the plaintiff.  Proving fraud is hard, but you essentially must show that the other side knowingly lied to you or knowingly prevented you from learning the truth, and that if you had known the truth you would not have signed.

Contract in Violation of Public Policy - This is a vague concept that encapsulates many ideas.  Basically, it's where you tell a court "sure, this is an otherwise valid contract, but enforcing it would violate the 'public policy' of the state."  As you can probably guess, this is hard to prove because defining "public policy" is hard - it comes from a combination of legislation and court rulings.  There are some obvious ones, however.  For example, contracts that waive a custodial parent's right to collect child support from the non-custodial parent are always a violation of public policy.

Lack of Consideration - This is another contract defense.  Unilateral promises and gifts are generally not enforceable in court (there are exceptions to this, but this is the general rule), and "consideration" is what differentiates a contract from a unilateral promise or gift.  Consideration is the rule that in a contract, each party must receive a benefit from the contract (for example, in a purchase contract, the purchaser receives the item purchased and the seller receives money).  So, if you believe that there was no consideration, you can raise that as an affirmative defense.  Note, however, that the defense is only available if it was you who did not receive consideration.  You cannot claim the plaintiff did not receive consideration from the contract as your defense.

Failure to Mitigate Damages - As I have briefly alluded to before, typically when a contract is breached it is on the non-breaching party to take action to minimize the damage they suffer.  If the plaintiff has failed to do that, it is on you to prove what the plaintiff could have done to mitigate his or her damages, and how much that would have mitigated the damages.

Contributory Negligence - This is a defense to a negligence claim where you state that the plaintiff was also negligent, and that negligence contributed, even if only a small bit, to the injury the plaintiff suffered.  If you can prove this, contributory negligence is a complete defense.

Waiver of the Claim - This is a defense that states that an act or omission of the plaintiff legally (or contractually) waived the right of the plaintiff to bring suit.  You must prove that this act or omission actually occurred, and show the court why such act or omission is a waiver.

Res Judicata - This is a defense that claims that you have already been sued by this same plaintiff for this same thing, and there was a final ruling on the matter.  You must prove that the previous lawsuit occurred, that it was for the exact same thing, and that the order resolving that lawsuit was a final order (for example, if it was dismissed "without prejudice" then res judicata does not apply).

Performed as Required - If a breach of contract suit claims you were supposed to do something (for example, build a house) and that you did not, but you claim you actually did do what you were supposed to do, it is on you to prove that you did it.

Privilege in a Defamation Case - Privilege is a type of defense in defamation that says a certain type of statement or communication cannot be the basis of a defamation claim even if the statement or communication is false and defamatory.  Examples of privileged communications are statements made by an insurance company explaining why they chose not to renew a policy, any relevant statement made in court, or statements made on public airwaves by or on behalf of candidates for public office (this immunity applies only to the radio and tv broadcasters, not the actual producers of the ad).

Illegal Contract - This is a subset of the public policy violation discussed above.  Basically a contract will not be enforced if you can prove that it requires conduct that is illegal.  The classic example of this is a gambling contract (for example, "If the Washington Capitals win the Stanley Cup, I will pay you $500, but if they do not, you will pay me $50") in a state where gambling is illegal, or at least not legally recognized (such as Virginia).

Debt Discharged in Bankruptcy - This is easy to understand but very important.  If you filed a bankruptcy and that bankruptcy discharged a debt, then you are sued for that debt, it is on you to prove both that you filed the bankruptcy and that this debt was actually discharged.  If you waive this defense, the lawsuit can go forward even though the debt was supposed to be discharged.

Conclusion

Affirmative defenses are a confusing and often difficult part of law for non-lawyers to understand.  This is yet another reason why it's safest when you are sued to hire an attorney - there may be an affirmative defense available to you that you did not even know about!  If you have been sued and want to know if you have an affirmative defense available to you, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!