                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit Rule 206
                                           File Name: 05a0327a.06

                     UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT
                                        _________________


                                                      X
                                Plaintiff-Appellee, -
 OLD LINE LIFE INSURANCE COMPANY OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 04-1481
           v.
                                                       ,
                                                        >
 DAVID K. GARCIA,                                      -
                              Defendant-Appellant. -
                                                      N
                      Appeal from the United States District Court
                       for the Eastern District of Michigan at Flint.
                     No. 02-40239—Paul V. Gadola, District Judge.
                                         Argued: March 9, 2005
                                 Decided and Filed: August 5, 2005
               Before: MOORE and SUTTON, Circuit Judges; CARMAN, Judge*
                                          _________________
                                                COUNSEL
ARGUED: John P. Nicolucci, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, for
Appellant. K. Scott Hamilton, DICKINSON, WRIGHT, PLLC, Detroit, Michigan, for Appellee.
ON BRIEF: John P. Nicolucci, Stephen O. Schultz, FOSTER, SWIFT, COLLINS & SMITH,
Lansing, Michigan, for Appellant. K. Scott Hamilton, DICKINSON, WRIGHT, PLLC, Detroit,
Michigan, for Appellee.
                                       ______________________
                                        AMENDED OPINION
                                       ______________________
        CARMAN, Judge. This matter is before the Court on Plaintiff/Appellee Old Line Insurance
Company of America’s (“Old Line”) Motion for Clarification or, Alternatively, for Rehearing and/or
Rehearing En Banc. Upon consideration of the relevant briefs and the record before this Court, we
hereby amend our prior opinion, Old Line Life Ins. Co. of Am. v. Garcia, No. 04-1481, 2005 WL
1384091 (6th Cir. June 2, 2005), and remand to the district court for further proceedings consistent
with this opinion.




       *
        The Honorable Gregory W. Carman, United States Court of International Trade, sitting by designation.


                                                      1
No. 04-1481           Old Line Life Ins. Co. of Am. v. Garcia                                 Page 2


                                           BACKGROUND
        Familiarity with the factual and procedural history of this case is presumed. On June 2,
2005, this Court issued its opinion in Old Line Life Ins. Co. of Am. v. Garcia, No. 04-1481, 2005 WL
1384091 (6th Cir. June 2, 2005). In that opinion, this Court reversed the decision of the district
court, which granted summary judgment for Old Line, and remanded the case for entry of judgment
for Defendant-Appellant David K. Garcia (“Garcia”). In so doing, this Court found that the insured
(Garcia’s deceased mother) had not misrepresented that she would replace her existing life insurance
policies with the single policy applied for and received from Old Line. This Court also found that
the insured had not failed to satisfy a condition subsequent of the insurance policy. Accordingly,
the Old Line policy was not subject to rescission. The Court further found that Old Line breached
its contract with Garcia by not paying on the policy upon the insured’s death.
        On June 16, 2005, Old Line filed a timely Motion for Clarification or, Alternatively, for
Rehearing and/or Rehearing En Banc (“Motion for Clarification”). Pursuant to Federal Rule of
Appellate Procedure 40(a)(3), the panel requested that Garcia file an answer to the Motion for
Clarification. On June 23, 2005, Garcia filed Defendant-Appellant’s Response in Opposition to
Plaintiff-Appellee’s Motion for Clarification or, Alternatively, for Rehearing and/or Rehearing En
Banc (“Response”).
        Because the Motion for Clarification relates to pleadings and motions that were filed with
the district court, this Court will review briefly the relevant information therefrom. On June 27,
2002, Old Line filed a Complaint for Declaratory Judgment and Rescission. (J.A. at 7.) In it, Old
Line presented the following allegations:
       1.      Ms. Garcia [the insured] made material misrepresentations of her
               employment status and position, such that she was employed [by] Garcia
               Labs or was acting as President of Garcia Labs at the time of her Policy
               Application and her income was over $100,000, when in fact she was not
               actively working at Garcia Labs or acting as President. (J.A. at 9.)
       2.      Ms. Garcia made material misrepresentations by stating that the Policy was
               a replacement policy for the three existing insurance policies, when in fact
               those policies were never cancelled and the policies had not expired. (J.A.
               at 10.)
       3.      Ms. Garcia made material misrepresentations concerning the existence of
               certain health problems at the time of her Policy Application and did not
               update her health status in the four months between the time of the Policy
               Application and the issuance of the Policy. (J.A. at 10.)
In his Answer, Garcia denied the Old Line allegations concerning misrepresentations. (J.A. at 48-
49.) In addition, Garcia filed a counterclaim for breach of contract for Old Line’s failure to pay his
claim on the insurance policy upon the death of the insured. (J.A. at 52.) In Old Line’s Answer to
Counterclaim, it admitted that it had not paid Garcia the policy proceeds but denied Garcia was
entitled to interest on his claim. (J.A. at 57.) With its Answer to Counterclaim, Old Line included
the affirmative defenses that Garcia failed to state a claim upon which relief may be granted, that
the insured’s material misrepresentations entitled Old Line to rescind the policy and deny Garcia’s
claim, and that the insured’s failure to satisfy a condition subsequent voided and rescinded the
policy. (J.A. at 59.)
No. 04-1481            Old Line Life Ins. Co. of Am. v. Garcia                                    Page 3


                                       PARTIES’ CONTENTIONS
I.      Old Line’s Position
        In filing its Motion for Clarification, Old Line seeks to draw this Court’s attention to possible
outstanding issues of material fact and an affirmative defense that were left unresolved by Old
Line’s successful motion for summary judgment before the district court. (Mot. for Clarification
at 3-4.) Old Line points to three alleged misrepresentations of the insured that were not addressed
by this Court’s June 2, 2005, opinion or by the district court: 1) employment status, 2) income, and
3) health. (Mot. for Clarification at 2.) Old Line also mentions that this Court did not address its
affirmative defense that the Employee Retirement Income Security Act (“ERISA”) precludes
Garcia’s breach of contract affirmative defense. (Mot. for Clarification at 4.) In addition, Old Line
notes that Garcia’s brief on appeal limited the issues before this Court to those related to the alleged
misrepresentation concerning the insured’s replacing her existing life insurance policies. (Mot. for
Clarification at 9.) According to Old Line, these remaining and unresolved issues preclude this
Court from instructing the district court to enter judgment for Garcia.
II.     Garcia’s Position
        In his Response, Garcia argues that this Court properly determined in its June 2, 2005,
opinion that there were no genuine issues of material fact. (Resp. at 2.) Garcia mentions that the
Court granted “the very relief” he requested. (Resp. at 2.) Further, Garcia points to the record
before this Court to support his position that each of the alleged outstanding misrepresentations (i.e.,
genuine issues of material fact) has already been discussed, briefed, and refuted. (Resp. at 3-7.)
Consequently, according to Garcia, this Court was correct in disposing of this case as it did and in
directing that the district court enter judgment in Garcia’s favor.
                                              DISCUSSION
I.      Genuine Issues of Material Fact
        To the extent that it is not limited by this opinion, our June 2, 2005, opinion stands. The
opinion disposed of one of the misrepresentations alleged by Old Line, specifically that concerning
replacement of the existing life insurance policies. This Court found that there had been no
misrepresentation as to replacement of the existing life insurance policies. The earlier opinion also
disposed of Old Line’s contention that the insured failed to satisfy a condition subsequent of its
insurance policy. While this Court’s decision may have alluded to the remaining alleged
misrepresentations, we agree with Old Line that it did not dispose of them. We also agree with Old
Line that Garcia’s appeal was limited to the district court’s grant of summary judgment to Old Line
on the issue of the misrepresentation concerning replacement.
        Accordingly, we remand this case to the District Court for its consideration of whether the
insured misrepresented: 1) her “employment status and position” (J.A. at 9), 2) her income (J.A. at
9), and 3) the “existence of certain health problems at the time of her Policy Application and did not
update her health status in the four months between the time of the Policy Application and the
issuance of the Policy” (J.A. at 10). We leave it to the district court in the first instance to determine
which, if any, of these issues has been preserved and whether any of them have merit.
II.     Affirmative Defense
        This Court notes that Federal Rule of Civil Procedure 8(c) requires that affirmative defenses
be set forth in a party’s pleading to a preceding pleading. Although Old Line characterizes its claim
that Garcia’s breach of contract counterclaim is barred by ERISA as an affirmative defense, the
Court notes that Old Line failed to plead it as such. The ERISA claim is not one of the affirmative
No. 04-1481           Old Line Life Ins. Co. of Am. v. Garcia                                   Page 4


defenses Old Line pleaded in response to Garcia’s counterclaim for breach of contract. As far as
this Court can discern, Old Line’s ERISA claim first appears in Old Line’s Motion for Summary
Judgment. (J.A. at 62.)
         As a general rule, failure to plead an affirmative defense results in a waiver of that defense.
E.g., Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994). However, failure to plead an
affirmative defense does not always result in waiver. E.g., Smith v. Sushka, 117 F.3d 965, 969 (6th
Cir. 1997); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993). We leave
it to the district court to determine whether it is appropriate in light of applicable jurisprudence and
the facts and circumstances of this case for Old Line’s ERISA affirmative defense to be considered.
III.   Interest
        We acknowledge Garcia’s request for interest on his breach of contract claim but decline to
rule upon it. Because we remand this matter to the district court for further proceedings, Garcia’s
request for interest is premature. We leave it to the district court to determine whether interest is
appropriate and to calculate what interest, if any, Garcia may be entitled to receive upon conclusion
of the proceedings below.
                                            CONCLUSION
        We vacate that portion of this Court’s June 2, 2005, opinion (Old Line Life Ins. Co. of Am.
v. Garcia, No. 04-1481, 2005 WL 1384091 (6th Cir. June 2, 2005)) directing the district court to
enter judgment for Garcia. Otherwise, the June 2, 2005, opinion in this matter stands. This case is
hereby REVERSED and REMANDED to the District Court for further proceedings consistent with
this opinion and this Court’s June 2, 2005, opinion in this matter.
