Fill and Sign the Accident Involved Form

IN THE ______________ COURT OF ______________ COUNTY STATE OF ________________       ) )       ) Petitioner/Plaintiff, ) ) ) NO.       Vs. ) )       ) Respondent/Defendant ) ) ANSWER COMES NOW the defendant, ___________________, in the above-styled case, by and through counsel, and answers plaintiff’s complaint as follows: 1. Defendant denies paragraphs ____________ of the Complaint and demands strict proof thereof. 2. Defendant admits paragraphs ___________ of the Complaint. FIRST AFFIRMATIVE DEFENSE (Contributory Negligence) The Plaintiff’s injuries and damages, if any, were proximately caused by the Plaintiff’s own negligence. SECOND AFFIRMATIVE DEFENSE (Assumption of Risk) The Plaintiff is barred from recovering for his/her injuries and damages, if any, because the Plaintiff assumed the risk of the activity in which Plaintiff was engaged when Plaintiff was injured . - 1 - THIRD AFFIRMATIVE DEFENSE (Unavoidable Accident) The Plaintiff’s injuries and damages, if any, were proximately caused by an unavoidable accident, which was due to the fault of neither the Plaintiff nor the Defendant. FOURTH AFFIRMATIVE DEFENSE (Last Clear Chance) The Plaintiff failed to take advantage of the last clear chance to avoid the collision of which the Plaintiff complains, and Plaintiff is therefore barred from recovering anything from Defendant. FIFTH AFFIRMATIVE DEFENSE (Collateral Estoppel) The issue of liability [or other specified use] was previously decided adversely to the Plaintiff [or to ________________, a person in privity with Plaintiff], by the _____________ [Circuit, U.S. District, etc.] Court [of ________ County, State of ______________, or for the _____________ District of _____________, etc.], in a case styled ________________ v. _______________, Case number ______________. A certified copy of the opinion and judgment [or verdict and judgment, or pleadings and judgment, etc.] is/are marked Exhibit “A” and is/are attached hereto and is/are incorporated herein by reference. SEVENTH AFFIRMATIVE DEFENSE (Res Judicata) The Plaintiff’s cause of action as stated in the Complaint [or in Count(s) ____________ of the Complaint] is/are barred by the judgment of the _____________ [Circuit, U.S. District, etc.] Court [of ________ County, State of ______________, or for the _____________ District of _____________, etc.], in a case styled ________________ v. _______________, Case - 2 - number ______________. A certified copy of the opinion and judgment [or verdict and judgment, or pleadings and judgment, etc.] is/are marked Exhibit “A” and appended hereto and incorporated herein by reference. EIGHTH AFFIRMATIVE DEFENSE (Arbitration and Award) Plaintiff’s cause of action is barred by an arbitration and award which Plaintiff agreed to participate in and be bound by in the document appended hereto as Exhibit A, which is incorporated herein by reference, and pursuant to which an arbitration hearing was held on the ______ day of _______________, ______, by the Honorable _______________, as arbitrator, who on the ______ day of __________, ________, made an arbitration award in favor of Defendant. A copy of said arbitration award is appended hereto as Exhibit B and which is incorporated herein by reference. NINTH AFFIRMATIVE DEFENSE (Statute of Limitations) The Plaintiff’s cause of action is barred by the Statute of Limitations set out in § _________ of the Code of ___________, _____ [or _______ U.S.C. § ___________]. TENTH AFFIRMATIVE DEFENSE (Statute of Frauds) The Plaintiff's cause of action as set out in the Complaint [or Count(s) ______ of the Complaint] is/are barred by the Statute of Frauds set out in § _________ of the Code of ___________, _____, in that [specify how the Plaintiff’s cause is barred under the applicable subsection of the Statute of Frauds]. ELEVENTH AFFIRMATIVE DEFENSE (Foreign Corporation’s Failure to Qualify to do Business in _____________) - 3 - The Plaintiff is a corporation which is not qualified to do business in the Sate of ____________ as shown by the attached certificate from the Secretary of the State of ______________. The Plaintiff is therefore barred from bringing this action by virtue of § _________ of the Code of ___________, _____. TWELFTH AFFIRMATIVE DEFENSE (Illegality) The contract [or other instrument] upon which the Plaintiff sues is illegal and unenforceable in that [state why it is illegal]. THIRTEENTH AFFIRMATIVE DEFENSE (Violation of ______________ or federal consumer credit statute) The Plaintiff cause is barred in that the contract sued upon violates § _________ of the Code of ___________, _____ [and/or 15 U.S.C. § ______ et seq.], in that [explain why the contract violates the statute]. [ Note: See § 1-16 supra, for a sample Complaint asserting a cause of action under these statutes, which by switching the terms “Plaintiff” and “Defendant” can be used to plead a counterclaim. The ______________ statute is commonly called the “Mini- Code” and the federal statute is commonly called the “Truth in Lending Act.”] FOURTEENTH AFFIRMATIVE DEFENSE (Failure to give notice required by U.C.C.) The Plaintiff’s cause of action, if any, and remedy, if any, are based upon the § _________ of the Code of ___________, _____. The Plaintiff has failed to give notice of the alleged breach of warranty [or contract] alleged in the Complaint [or in Count _______ of the Complaint]. Plaintiff’s said cause of action is therefore barred by § _________ of the Code of ___________, _____. - 4 - FIFTEENTH AFFIRMATIVE DEFENSE (Release) The Plaintiff’s cause of action alleged in the Complaint [or in Count _____ of the Complaint] is barred by a release executed by Plaintiff on the ____ day of ____________, __________, a copy of which is marked Exhibit A and which is appended hereto and made a part hereof by reference. SIXTEENTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) 1. The Defendant avers that the Plaintiff’s claim was compromised, settled, and adjusted by verbal [or written] agreement of the parties on or about the _____ day of ____________, _____, and that Defendant paid to the Plaintiff the amount agreed upon. 2. The Defendant affirmatively [pleads an accord and satisfaction of the Plaintiff’s claim against the Defendant. SEVENTEENTH AFFIRMATIVE DEFENSE (Payment) The Defendant avers that Defendant paid the Plaintiff __________________ Dollars ($______________) as payment in full of Plaintiff’s claim on or about the _____ day of ______________, 20____. EIGHTEENTH AFFIRMATIVE DEFENSE (Discharge in Bankruptcy) 1. The Plaintiff’s claim against Defendant was listed as a scheduled debt of Defendant or claim against the Defendant in Defendant’s petition filed in the United States Bankruptcy Court for the _____________ District of ____________, in Case No. ___________. - 5 - 2. Defendant was granted a discharge as to Plaintiff’s claim in said Bankruptcy case by an Order dated ___________________ [a copy of which is attached hereto as Exhibit A.] NINETEENTH AFFIRMATIVE DEFENSE (Fraud) The contract [deed or other instrument] upon which the Plaintiff sues was procured by fraud on the part of the Plaintiff in that [here describe the fraud]. [ Note: Rule ___ of the _____________ Rules of Civil Procedure, states in part: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Thus, the practitioner should allege all facts upon which the contention of fraud is based.] TWENTIETH AFFIRMATIVE DEFENSE (Laches) The Plaintiff’s cause of action as set forth in the Complaint [or in Count(s) __________ of the Complaint] is barred by doctrine of laches in that [here set out with particularity the reasons why the doctrine should be invoked by the Court, especially how the Defendant has been prejudiced]. TWENTY-FIRST AFFIRMATIVE DEFENSE (Undue Influence) The contract [deed or other instrument] upon which the Plaintiff sues was procured by the Plaintiff by undue influence in that Plaintiff took unfair advantage of the Defendant [or _____________, a person in privity with the Defendant], and unduly influenced the Defendant [or _____________, a person in privity with the Defendant] in procuring the contract [deed or other instrument] sued upon in that [here describe the relationship and/or conduct constituting undue influence]. - 6 - TWENTY-SECOND AFFIRMATIVE DEFENSE (Duress or Coercion) The contract [deed or other instrument] upon which the Plaintiff sues was procured by the Plaintiff through duress [and/or coercion], in that [here describe with particularity the conduct which constitutes duress or coercion]. TWENTY-THIRD AFFIRMATIVE DEFENSE (Failure or lack of Consideration) The contract [deed or other instrument] upon which the Plaintiff sues is unenforceable [because the consideration failed in that (state reason - e.g., “the check given by Plaintiff was dishonored by the bank upon which it was drawn”); or because the Plaintiff gave no consideration as contemplated by the said contract (deed or other instrument)] and there was therefore no mutuality of consideration. TWENTY-FOURTH AFFIRMATIVE DEFENSE (License) The Defendant’s use of the Plaintiff’s ____________ [state item used - e.g., “patent,” “process,” etc.] was lawful and authorized by virtue of a license [or permit, etc.], a copy of which is appended hereto as Exhibit A and which is incorporated herein by reference. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Unconscionability) The contract upon which the Plaintiff sues is subject to the provisions of the ___________ Uniform Commercial Code. Said contract was unconscionable at the time it was made in that [describe why the contract is unconscionable]. Said contract is therefore unenforceable under § _________ of the Code of ___________, _____. Respectfully submitted, - 7 - Dated: Name:       Title:       Address: Address: City, State, Zip: Phone: Fax: E-Mail: Attorney No.: CERTIFICATE OF SERVICE I, ______________________________, do hereby certify that I have this day mailed, U.S. Mail, postage prepaid, a true and correct copy of the above and foregoing to __________________________________, at the following address; ___________________________________________________________________ THIS the ____ day of _____________, 20____. _________________________________ - 8 -