
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                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the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  Offices            ________________________  _______________________     ____________        Irizarry-Colon on brief for appellees.        ______________                                 ____________________                                    July 30, 1993                                 ____________________                      Per  Curiam.  Plaintiffs Vilma E. Rivera and Victor                      ___________            Otero  challenge  the  district  court's  decision  to  grant            defendant Corporacion Insular  de Seguros's ("CIS's")  motion            for judgment as a  matter of law, see Fed. R. Civ.  P. 50, on                                              ___            plaintiffs'  negligence claim.    Finding  no  error  in  the            decision below, we affirm.                      We  summarize only the  relevant facts.   This is a            medical malpractice  case which plaintiffs brought  on behalf            of their daughter  Vivian, who was injured  during childbirth            as  a result  of a  doctor's  alleged negligence.   In  their            original complaint, plaintiffs sued the doctor involved, CIS,            the  hospital's  insurance   carrier,  and  several   unnamed            insurance  companies.    Before  trial,  however,  plaintiffs            settled with  the doctor.   Subsequently,  plaintiffs amended            their  complaint to  state a  direct action  against  CIS for            negligence, and the case then proceeded to trial against CIS.            At the  close of the  evidence, CIS moved  for judgment  as a            matter of law,  arguing that plaintiffs'  claim had not  been            filed within the time specified in the policy.  Finding merit            in  that argument,  the district  court  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  to grant the Rule 50 motion.            We do not agree.   In its answer, CIS included the  following                                         -2-                                          2            statement  under  the   heading  of  "Affirmative  Defenses":            "[W]hatever  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  policy in their possession well            before the  trial  date, can  hardly claim  surprise at  CIS'            reliance upon  its express terms  as support for its  Rule 50            motion.  Cf.  Mitchell v. Jefferson County Bd.  of Educ., 936                     ___  ________    ______________________________            F.2d  539,  544  (11th Cir.  1991)  ("Liberal  pleading rules            require a court  to determine whether a  plaintiff has notice            that a defendant is relying on an unpled affirmative  defense            and whether the plaintiff can legitimately claim surprise and            prejudice   from    a   failure   to   plead    the   defense            affirmatively.").    See   also  Valle  v.  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  avoid surprises."); 5  Charles Alan Wright  &            Arthur  R.  Miller,  Federal Practice  and  Procedure    1274                                 ________________________________            (1990) ("An  affirmative defense  may be  pleaded in  general            terms  and will  be  held  to  be sufficient,  and  therefore            invulnerable  to a  motion to  strike,  as long  as it  gives            plaintiff  fair  notice  of the  nature  of  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                                         -3-                                          3            Accordingly, we  agree with  the district  court's conclusion            that CIS did  not waive  the defense upon  which its Rule  50            motion was based.                        Moreover,  having  carefully  reviewed  plaintiffs'            remaining  arguments, we  find  each of  them  to be  without            merit.    We   further  find  that  the  appeal  presents  no            substantial  question,  and  we  therefore  deny  plaintiffs'            motion for  oral argument  and summarily  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  trial.  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.                                         -4-                                          4
