                    [NOT FOR PUBLICATION]

                United States Court of Appeals
                    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

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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 &amp; 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  &amp;

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

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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.

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