Rivera v. Corporacion, 1st Cir. (1993)

USCA1 Opinion
[NOT FOR PUBLICATION]

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 92-2089
VILMA E. RIVERA, ET AL.,
Plaintiffs, Appellants,
v.
CORPORACION INSULAR DE SEGUROS,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr, and Stahl,
Circuit Judges.
______________
____________________
David Efron on brief for appellants.

___________
Efren T. Irizarry Colon, Elisa M. Figueroa-Baez and Law Offi
________________________ _______________________
_________
Irizarry-Colon on brief for appellees.
______________
____________________
July 30, 1993
____________________
Per Curiam.
___________
Otero
challenge
the
Plaintiffs Vilma E. Rivera and Victor

district
defendant Corporacion Insular

for judgment as a
plaintiffs'
court's
decision
to
de Seguros's ("CIS's")
matter of law, see Fed. R. Civ.

___
negligence claim.
Finding
no
grant
motion
P. 50, on
error
in
the
decision below, we affirm.

We
summarize only the
medical malpractice
of their daughter
as
a result
of a
relevant facts.
case which plaintiffs brought

Vivian, who was injured
doctor's
This is a
on behalf
during childbirth
alleged negligence.
In
their
original complaint, plaintiffs sued the doctor involved, CIS,

the
hospital's
insurance
companies.
settled with
their
insurance
Before
the doctor.
complaint to
carrier,
state a
and
trial,
several
however,
Subsequently,
unnamed
plaintiffs
plaintiffs amended
direct action
against
CIS for
negligence, and the case then proceeded to trial against CIS.

At the
close of the
matter of law,
evidence, CIS moved
arguing that plaintiffs'
for judgment
as a
claim had not
been
filed within the time specified in the policy.

in
that argument,
the district
court
Finding merit
granted the
motion.
This appeal followed.

Plaintiffs' central contention is
that CIS, by not
specifically pleading it, waived the affirmative defense upon

which the district court relied
We do not agree.
to grant the Rule 50 motion.
In its answer, CIS included the
following
-22
statement
"[W]hatever
under
the
heading
of
"Affirmative
Defenses":
policy may ha[ve] been issued to [the hospital],
if any, would be limited to its terms, clauses and conditions

and by its limit of
coverage."
Plaintiffs were therefore on
notice that CIS would defend on the basis of the terms of the
policy,
and, having had the
before the
trial
reliance upon
motion.
F.2d
hardly claim
its express terms
Cf.
___
539,
date, can
policy in their possession well

surprise at
as support for its
CIS'
Rule 50
Mitchell v. Jefferson County Bd. of Educ., 936

________
______________________________
544
(11th Cir.
require a court
1991)
("Liberal
to determine whether a
pleading rules
plaintiff has notice
that a defendant is relying on an unpled affirmative
defense
and whether the plaintiff can legitimately claim surprise and

prejudice
from
affirmatively.").
failure
See
___
also
____
to
plead
Valle
_____
v.
the
defense
Heirs
of Julio
_________________
Wiscovitch & The Globe Indemnity Co., 88 P.R.R. 84, 88 (1963)

____________________________________
("The purpose
of the rule [that affirmative defenses must be
pleaded] is to
Arthur
R.
Miller,
(1990) ("An
terms
avoid surprises."); 5
invulnerable
plaintiff
Federal Practice and Procedure

________________________________
affirmative defense
and will
be
to a
fair
Charles Alan Wright
held
to
motion to
notice
of the
may be
pleaded in
be sufficient,
strike,
nature
and
as long
of
&
1274
general
therefore
as it
gives
the defense.").1
____________________
1.
Plaintiffs rely upon
Valle, 88 P.R.R. at 88-89, to argue

_____
that CIS waived its defense under Puerto Rico law. In that
case, the court held that an allegation in an answer that the
-33
Accordingly, we
that CIS did
agree with
not waive
the district
court's conclusion
the defense upon
which its Rule
50
motion was based.

Moreover,
remaining
merit.
arguments, we
We
substantial
motion for
having
further
question,
carefully
find
find
and
oral argument
each of
that
we
the
reviewed
them
and summarily
to be
appeal
therefore
plaintiffs'
deny
without
presents
no
plaintiffs'
affirm pursuant
to
Local Rule 27.1.
____________________
insurance
"policy
`was subject
to
the
clauses and
restrictions appearing therein,'" was not sufficient to put
the plaintiff on notice that the insurer would assert the
insured's "lack of
cooperation" as a defense at
Id.
___
at 89. The court reasoned that, based on the aforementioned
clause, the insured would have no way of discerning the
specific defense the insurer intended to use at trial. Id.
___
at 88-89.
The instant case does not, however, raise the same
notice concerns.
CIS stated as an affirmative defense that
its liability was limited by the terms of the policy. At
trial, CIS argued simply that a claim was not filed within
the date specified in the policy.
As plaintiffs had the
policy well before trial, they cannot claim lack of notice of
that defense.
In our view, therefore, plaintiffs' reliance
upon Valle is unavailing. In any event, the requirements for
_____
pleading affirmative defenses are procedural and, therefore,
depend on federal law, not Commonwealth law.
-44
trial.

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USCA1 Opinion

[NOT FOR PUBLICATION]

David Efron on brief for appellants.

Plaintiffs Vilma E. Rivera and Victor

defendant Corporacion Insular

matter of law, see Fed. R. Civ.

decision below, we affirm.

summarize only the

case which plaintiffs brought

original complaint, plaintiffs sued the doctor involved, CIS,

negligence, and the case then proceeded to trial against CIS.

evidence, CIS moved

arguing that plaintiffs'

claim had not

filed within the time specified in the policy.

This appeal followed.

that CIS, by not

specifically pleading it, waived the affirmative defense upon

to grant the Rule 50 motion.

In its answer, CIS included the

policy may ha[ve] been issued to [the hospital],

if any, would be limited to its terms, clauses and conditions

Plaintiffs were therefore on

and, having had the

its express terms

policy in their possession well

as support for its

Mitchell v. Jefferson County Bd. of Educ., 936

plaintiff has notice

that a defendant is relying on an unpled affirmative

and whether the plaintiff can legitimately claim surprise and

Wiscovitch & The Globe Indemnity Co., 88 P.R.R. 84, 88 (1963)

of the rule [that affirmative defenses must be

Federal Practice and Procedure

Charles Alan Wright

Plaintiffs rely upon

Valle, 88 P.R.R. at 88-89, to argue

the defense upon

which its Rule

motion was based.

Local Rule 27.1.

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