The Washington State Supreme Court has developed two relevant tests to determine whether a waiver of affirmative defenses has occurred: (1) waiver based on civil rules; and (2) common law waiver. Compare, Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976) (explaining waiver pursuant to civil rules), with Oltman v. Holland America Line USA, Inc., 163 Wn.2d 236, 178 P.3d 981 (2008) (explaining common law doctrine of waiver). Typically, litigants will inadvertently waive the defense of res judicata under the civil rules.
Under CR 8(c), res judicata is listed as an affirmative defense and must be specifically pled. See, e.g., Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div. 1 1981) (holding “failure of consideration” is an affirmative defense under CR 8(c) and must be specificallypled) (emphasis added). Particularly, in order for res judicata to have a preclusive effect the second court must be advised of the prior proceeding and the burden of pleading “res judicata” is listed among the affirmative defenses. See, Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 812 (1985) (quotations omitted) (emphasis added). Moreover, although CR 8(c) specifically delineates 20 affirmative defenses, parties must also affirmatively plead “any other matter constituting an avoidance or affirmative defense. Beaupre v. Pierce County, 161 Wn.2d 568, 575, 166 P.3d 712 (Wash. 2007). Thus, “claim splitting” and “priority of action” must also be specifically pled as affirmative defenses.
BLACK LETTER LAW
But what about the actual language in the statute? The Washington State Superior Court rule for waiver of affirmative defenses under the civil rules is as follows: if specific defenses are not (1) affirmatively pled, (2) asserted with a motion under CR 12(b), or (3) tried by the express or implied consent of the parties, they will be deemed to have been waived and may not thereafter be considered as triable issues in the case. Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div 1 1981) (citing Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976)) (emphasis added). This affirmative defense requirement will not be abrogated where it affects the substantial rights of the parties. Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div 1 1981) (citing cases) (emphasis added).
Furthermore, pursuant to the civil rules, every defense shall be asserted in the responsive pleading which is one of the following: a complaint, an answer, a reply to a counterclaim, an answer to a cross claim, a third party complaint, and a third party answer. Lybbert v. Grant County, State of Wash., 141 Wn2d 29, 43, 1 P.3d 1124 (2000) (citing CR 12(b); CR 7(a)). So, if you find yourself at summary judgment, and the defendant has not properly asserted the defense of res judicata, priority of action, or claim splitting in their responsive pleading, then there is an argument for waiver based on the civil rules.
For example, in Rainier Nat. Bank v. Lewis the plaintiff-bank brought an action to recover funds from a default loan guaranteed by defendants, and defendants specifically plead the affirmative defense of “failure of consideration” for the first time at summary judgment; the court held that defendants failed to specifically plead the affirmative defense “failure of consideration” in their answer and it was therefore waived. Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 635 P.2d 153 (Wash.App. Div 1 1981) (emphasis added).
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