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Tucker v. State Farm Mutual Automobile Insurance Company6/11/2002
tion 31A-21-313 bars the Tuckers' complaint. We review the trial court's summary judgment rulings for correctness. E.g., Surety Underwriters v. E & C Trucking, Inc., 2000 UT 71, 14, 10 P.3d 338.
ANALYSIS
I. RAISING AFFIRMATIVE DEFENSES IN MOTIONS TO DISMISS
In response to the Tuckers' amended complaint, State Farm filed a motion to dismiss under rule 12(b)(6) of the Utah Rules of Civil Procedure, alleging, in part, that the complaint was time barred by section 31A-21-313 of the Utah Code. The Tuckers addressed this statute of limitations issue by filing a motion to strike, asserting, in part, that affirmative defenses may not be raised in motions to dismiss. In support of this position the Tuckers cite, inter alia, Gill v. Timm, which notes that " ffirmative defenses must be set forth in responsive pleadings and are usually waived if not so pleaded." (citations omitted). 720 P.2d 1352, 1353-54 (Utah 1986).
Gill recites the general rule that affirmative defenses should be set forth in responsive pleadings. Id.; see also Utah R. Civ. P. 8(c). Because dismissal under rule 12(b)(6) is "justified only when the allegations of the complaint itself clearly demonstrate that the plaintiff does not have a claim," 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ยง 1357 at 345 (2d ed. 1990) (emphasis added), this general rule recognizes that affirmative defenses, which often raise issues outside of the complaint, are not generally appropriately raised in a motion to dismiss under rule 12(b)(6).
In some instances, however, the existence of the affirmative defense may appear within the complaint itself. For example,
complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading. . . . he inclusion of dates in the complaint indicating that the action is untimely renders it subject to dismissal for failure to state a claim. Id. at 352-54.
We agree that in such a case a motion to dismiss under rule 12(b)(6) may raise affirmative defenses. Although we have not previously expressly articulated the rule that affirmative defenses may be brought by motion under rule 12(b)(6) when they appear within the complaint, we have previously recognized that a statute of limitations defense can be raised in a motion to dismiss. See Keller v. Southwood N. Med. Pavilion, Inc., 959 P.2d 102, 106 (Utah 1998) ("A party waives a statute of limitations defense by failing to raise it in a responsive pleading or by motion . . . ." (emphasis added)). We note also that other jurisdictions have similarly held that in certain circumstances affirmative defenses may be raised in a motion to dismiss. See, e.g., Chamberlain v. Mathis, 729 P.2d 905, 908 (Ariz. 1986) ("[An affirmative defense] may be properly raised in a motion to dismiss, if the facts establishing the occasion for the [defense] appear in the pleadings."); Murrey v. Specialty Underwriters, Inc., 213 S.E.2d 668, 671 (Ga. 1975) (" ome affirmative defenses may properly be raised by a motion to dismiss if the facts are admitted or are not controverted or are completely disclosed on the face of the pleadings and nothing further can be developed by a trial of the issue."); Harden v. State of Iowa, 434 N.W.2d 881, 883 (Iowa 1989) ("The bar of the statute of limitations is properly raised by a motion to dismiss when the necessary facts appear on the face of the pleadings . . . ."); Cavanagh v. Cavanagh, 489 N.E.2d 671, 673 (Mass. 1986) (" f the complaint shows on its face the existence of an affirmative defense, the complaint does not state a claim upon which relief can be
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