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James v. State Farm Fire & Casualty Co.11/8/2005
he personal injury accident that occurred on August 31, 2002, the doctrine of collateral estoppel applied. The trial court, therefore, granted Safeco's and Gasowski's motions for summary disposition.
On appeal, State Farm first argues that the trial court erred in granting summary disposition because the parties, including Safeco and Gasowski, entered a release and settlement agreement in connection with the first tort action, and it was a condition of that agreement that there would be a determination in this declaratory action of the identity of the jet ski driver.
Under MCR 2.111(F), an affirmative defense must be raised in a responsive pleading or by motion as provided by the court rules or it is deemed waived. James first filed this declaratory action on September 29, 2003, requesting a declaratory judgment that he was the driver. State Farm filed affirmative defenses in response to the complaint but failed to raise the affirmative defense of a prior release. Safeco then filed its complaint on August 20, 2004. State Farm filed affirmative defenses in response to that complaint on September 8, 2004, but again failed to raise the affirmative defense of a prior release.
We recognize that that the release was not executed until after State Farm filed its second affirmative defense pleading. However, in each of its pleadings State Farm expressly reserved the right to amend its affirmative defenses after further discovery. Yet, State Farm failed to do so, and its failure to raise the release issue until the summary disposition hearing was in contravention of MCR 2.118(A). That court rule provides that a party may move to amend its affirmative defenses, but that amendment must be filed in writing. MCR 2.118(A)(2) and (A)(4). Here, State Farm's attempt to raise the defense was not presented in writing.
And while failure to properly plead an affirmative defense may be excused on the basis that support for the defense was only later discovered, the defense must nevertheless be asserted within a reasonable time after discovering it and the delay in assertion of the defense must not unfairly prejudice the opposing party. Meridian Mut Ins Co v Mason-Dixon Lines, Inc, 242 Mich App 645, 648; 620 NW2d 310 (2000). Here, the defense was not asserted within a reasonable time after discovering it. A representative of State Farm signed the release on September 30, 2004, but State Farm failed to bring it to the attention of the court until the April 11, 2005 hearing on summary disposition. Notably, State Farm filed a written motion in opposition to summary disposition on March 14, 2005, but failed to raise the issue of the release. Therefore, we decline to address this issue.
State Farm also argues that the trial court erred in granting summary disposition because it was not a party to the underlying action. According to State Farm, while it controlled whether a defense was provided to James by providing the funds to pay for the representation, it did not control the litigation or the defenses asserted because no attorney-client relationship existed between State Farm and the attorney representing James. We conclude that the elements of collateral estoppel were satisfied.
Generally, application of collateral estoppel requires (1) that a question of fact essential to the judgment was actually litigated and determined by a valid and final judgment, (2) that the same parties had a full and fair opportunity to litigate the issue, and (3) mutuality of estoppel. Monat v State Farm Ins Co, 469 Mich 679, 682-684; 667 NW2d 843 (2004); see Restatement Judgments, 2d, ยง 27, p 250. Here, a question of fact essential to the judgment-the identity of the jet ski driver-was a
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