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Meridian Mutual Insurance Co.9/26/2000
FOR PUBLICATION
9:05 a.m.
ON REMAND
As amended November 27, 2000
In February 1999, this Court issued an opinion regarding an appeal by defendant Mason-Dixon Lines, Inc., from a circuit court order that affirmed a district court final judgment in favor of plaintiffs. The plaintiffs had alleged that defendant damaged a printing press purchased by Estate Design & Forms, Inc., during defendant's transportation of the press from Texas to Michigan. The jury found for plaintiffs, and the district court entered for them an $85,835.88 judgment, which the circuit court affirmed. This Court's February 1999 opinion reversed the judgment and remanded for a new trial on the basis that the district court failed to apply preemptive federal law regarding interstate common carrier liability.
Plaintiffs applied to the Supreme Court for leave to appeal our decision concerning preemption, and defendant applied for leave to cross appeal our finding that a release obtained by Meridian Mutual Insurance Company, Estate Design's insurer and subrogee, from Estate Design did not preclude plaintiffs' instant claims against defendant. The Supreme Court denied plaintiffs' application for leave to appeal and, "in lieu of granting [defendant] leave to appeal," remanded to this Court for reconsideration of the release issue in light of Romska v Opper, 234 Mich App 512; 594 NW2d 853 (1999), leave denied 461 Mich 922; 606 NW2d 23 (1999), which was issued approximately 1 1/2 months after our initial opinion in the instant case. 462 Mich 902 (2000). In light of our further analysis with respect to the release, the holding in Romska, and the order of the Supreme Court, we reverse the district court's denial of defendant's motion for summary disposition premised on the release.
We first address plaintiffs' contention that defendant waived its right to assert that a release barred plaintiffs' instant claims because defendant failed to raise this affirmative defense either before or within its answer to plaintiffs' complaint. A party generally must raise the affirmative defense of release in his first responsive pleading or be deemed to have waived the defense. MCR 2.111(F)(3) and 2.116(D)(2). While defendant failed to assert the existence of a release within its first responsive pleading and did not thereafter specifically move to amend its responsive pleading to include the affirmative defense of release, the available record indicates that defendant discovered the existence of the release during the course of discovery and thereafter moved for summary disposition based on the release. Plaintiffs never disputed defendant's assertion that it moved for summary disposition based on the release shortly after discovering the existence of the release, and plaintiffs did not before the district court challenge the timeliness of defendant's claim of release. Plaintiffs neither now nor before the district court set forth any allegation that defendant's delayed assertion of the release defense unfairly surprised them or otherwise prejudiced them. Because (1) it appears that defendant moved for summary disposition based on the release within a reasonable time of discovering the release and (2) no indication exists that plaintiffs suffered any unfair prejudice, Romska, supra at 522, we conclude that defendant's failure to assert the release in its first responsive pleading did not prevent it from subsequently raising the issue. See Moorhouse v Ambassador Ins Co, Inc, 147 Mich App 412, 419; 383 NW2d 219 (1985) ("Just as affirmative defenses may be added by amendment without waiving them, . . . it makes sense to allow them to be raised when they become legally available.").
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