affirmative defense in West Virginia

2025Va. 654, 667 , 783 S.E.2d 75, 88 (2015) (Qualified immunity is an affirmative defense …); Grim v. Eastern Electric, LLC, 234 W.

2025Va. 557, 567 , 767 S.E.2d 267, 277 (2014) (Burden of persuasion shifts to the defendant when the defendant alleges an affirmative defense); First Nat.

2024Va. 450, 456 , 446 S.E.2d 672, 678 (1994) (“the defense of mitigation of damages is an affirmative defense, the burden of which lies entirely upon the party asserting it”); see also Smithson v. U.S. Fid. & Guar.

2013As to the basis for giving the instruction, we have held that “the defense of mitigation of damages is an affirmative defense, the burden of which lies entirely upon the party asserting it.” Voorhees v. Guyan Mach., 191 W.Va 450, 456, 446 S.E.2d 672, 678 (1994). “[A] person whose property is endangered or injured [must] use reasonable care to mitigate damages; but such person is only required to protect himself from the injurious consequence of the wrongful act by the exercise of ordinary effort and care and moderate expense.” Hardman Trucking, Inc. v. 3 Poling Trucking Co., 176 W.Va. 575, 579

2015As one court noted, “qualified immunity is a question of law that may be generally asserted (1) on a pretrial motion to dismiss under Rule .12(b)(6) for failure to state a claim; (2) as an affirmative defense fix the request for judgment on the pleadings pursuant to Rule 12(c); (3) on a summary judgment motion pursuant to Rule 56(e); or (4) at trial.” Skrtich v. Thornton, 280 F.3d 1295 , 1306 (11th Cir.2002). 14 See also, State v. Chase Sec., Inc., 188 W.Va. 356 , 362 n. 19, 424 S.E.2d 591 , 597 n. 19 (1992) (“Qualified or ‘good faith’ immunity is an affirmative defense that must be pleaded by

2015As one court noted, “qualified immunity is a question of law that may be generally asserted (1) on a pretrial motion to dismiss under Rule .12(b)(6) for failure to state a claim; (2) as an affirmative defense fix the request for judgment on the pleadings pursuant to Rule 12(c); (3) on a summary judgment motion pursuant to Rule 56(e); or (4) at trial.” Skrtich v. Thornton, 280 F.3d 1295 , 1306 (11th Cir.2002). 14 See also, State v. Chase Sec., Inc., 188 W.Va. 356 , 362 n. 19, 424 S.E.2d 591 , 597 n. 19 (1992) (“Qualified or ‘good faith’ immunity is an affirmative defense that must be pleaded by

1999See, e.g., Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51 , 479 S.E.2d 561 (1996) (undue hardship is an affirmative defense, upon which the defendant bears the burden of persuasion); Voorhees v. Guyan Machinery Co., 191 W.Va. 450 , 446 S.E.2d 672 (1994) (the defense of mitigation of damages is an affirmative defense in which the burden of persuasion lies upon the defendant); State v. Daniel, 182 W.Va. 643 , 391 S.E.2d 90 (1990) (burden of persuasion may be imposed on a defendant asserting the affirmative defense of self-defense or accidental killing); Addair v. Bryant, 168 W.Va. 306 , 284 S.E.

1999See, e.g., Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51 , 479 S.E.2d 561 (1996) (undue hardship is an affirmative defense, upon which the defendant bears the burden of persuasion); Voorhees v. Guyan Machinery Co., 191 W.Va. 450 , 446 S.E.2d 672 (1994) (the defense of mitigation of damages is an affirmative defense in which the burden of persuasion lies upon the defendant); State v. Daniel, 182 W.Va. 643 , 391 S.E.2d 90 (1990) (burden of persuasion may be imposed on a defendant asserting the affirmative defense of self-defense or accidental killing); Addair v. Bryant, 168 W.Va. 306 , 284 S.E.

2019See also Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 391-92 (4th Cir. 2013) (recognizing that a plaintiff bears the burden of demonstrating what is reasonably necessary for the extraction of the mineral estate insofar as “no West Virginia case has treated a mineral estate owner’s claim to ‘reasonably necessary’ use of the surface to extract minerals as an affirmative defense.”).

2019See also Whiteman v. Chesapeake Appalachia, L.L.C. , 729 F.3d 381 , 391-92 (4th Cir. 2013) (recognizing that a plaintiff bears the burden of demonstrating what is reasonably necessary for the extraction of the mineral estate insofar as "no West Virginia case has treated a mineral estate owner's claim to 'reasonably necessary' use of the surface to extract minerals as an affirmative defense.").

2015MOORE ET AL., MOORE’S FEDERAL PRACTICE § 8.08[3], at 8-79 (3d. ed. 2015), “Where an affirmative defense such as qualified immunity “is raised in the trial court in a manner that does not result in unfair surprise . . . technical failure to comply precisely . . . [with the Rules of Civil Procedure] is not fatal.” Holland v. Cardiff Coal Co., 991 F.Supp. 508, 515 (S.D.W.Va. 1997) (quoting Allied Chem.

2015Moore Et Al„ Moore’s Federal Practice § 8.08[3], at 8-79 (3d. ed.2015), “Where an affirmative defense such as qualified immunity” “is raised in the trial court in a manner that does not result in unfair surprise ... technical failure to eom-ply precisely -... [with the Rules of Civil Procedure] is not fatal.” Holland v. Cardiff Coal Co., 991 F.Supp. 508, 515 (S.D.W.Va.1997) (quoting Allied Chem.

2000P. 8(c). [6] See American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 96 (4th Cir.1996) (affirmative *112 defense of arbitration must be pled in answer); McDonnell v. Dean Witter Reynolds, Inc., 620 F.Supp. 152, 155-56 (D.Conn.1985) ("the affirmative defense of arbitration must appear in the answer, and `a party's failure to plead an affirmative defense bars its invocation at later stages of the litigation.'") (citation omitted).

2000P. 8(c). 6 See American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88 , 96 (4th Cir.1996) (affirma tive defense of arbitration must be pled in answer); McDonnell v. Dean Witter Reynolds, Inc., 620 F.Supp. 152, 155-56 (D.Conn. 1985) (“the affirmative defense of arbitration must appear in the answer, and ‘a party’s failure to plead an affirmative defense bars its invocation at later stages of the litigation.’”) (citation omitted).

2021On appeal, this Court concluded in Nellas that although the circuit court had the discretion under Rule 15 of the Rules of Civil Procedure to permit the defendant to amend his pleadings post-verdict and assert the affirmative defense of the statute of limitations, it was nonetheless an abuse of discretion to not allow the opposing party adequate opportunity to respond. 156 W.

2021Nellas further provides: According to Rule 15(b), W.Va.R.C.P. an amendment to a pleading to assert an affirmative defense offered during or after trial over the objection of the opposing party should not be accepted unless (1) it permits the presentation of the merits of the action; (2) the adverse party will not be prejudiced by the sudden assertion of the defense; and (3) the adverse party is given ample opportunity to meet the issue. 156 W.

1997In Patterson , the Supreme Court reviewed a New York criminal law which created an affirmative defense to murder upon a showing of an “extreme emotional disturbance." Id. at 198 , 97 S.Ct. at 2320 , 53 L.Ed.2d at 284 .

1997In Patterson , the Supreme Court reviewed a New York criminal law which created an affirmative defense to murder upon a showing of an “extreme emotional disturbance." Id. at 198 , 97 S.Ct. at 2320 , 53 L.Ed.2d at 284 .

2020“And where, as here, ‘the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.’” Id. (quoting Hill, 474 U.S. at 59 ).

2018And where, as here, “the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” Id. at 59 .

2025Va. 654, 667 , 783 S.E.2d 75, 88 (2015) (Qualified immunity is an affirmative defense …); Grim v. Eastern Electric, LLC, 234 W.

2019Va. of Educ. v. Marple, 236 W.

2019See, e.g., Coleman v. Painter, 215 W.Va. 592, 596 , 600 S.E.2d 304, 308 , (2004) (finding that, contrary to defendant’s request that counsel pursue a theory that a sexual abuse victim had a history of making false allegations, the “decision not to develop a trial theory of false allegations by the victim was a reasonable tactical decision”); State v. Miller, 194 W.Va. 3, 16 , 459 S.E.2d 114, 127 (1995) (“[A] reasonable lawyer certainly could have made a tactical choice not to pursue the affirmative defense of self-defense.”).

2019See, e.g., Coleman v. Painter, 215 W.Va. 592, 596 , 600 S.E.2d 304, 308 , (2004) (finding that, contrary to defendant’s request that counsel pursue a theory that a sexual abuse victim had a history of making false allegations, the “decision not to develop a trial theory of false allegations by the victim was a reasonable tactical decision”); State v. Miller, 194 W.Va. 3, 16 , 459 S.E.2d 114, 127 (1995) (“[A] reasonable lawyer certainly could have made a tactical choice not to pursue the affirmative defense of self-defense.”).

1995As we held in syllabus point four of Nellas v. Loucas, 156 W.Va. 77 , 191 S.E.2d 160 (1972): According to Rule 15(b), W.Va.R.C.P.[,] an amendment to a pleading to assert an affirmative defense offered during or after trial over the objection of the opposing party should not be accepted unless (1) it permits the presentation of the merits of the action; (2) the adverse party will not be prejudiced by the sudden assertion of the defense; and (3) the adverse party is given ample opportunity to meet the issue. 156 W.Va. at 77 , 191 S.E.2d at 161 ; accord Syl.Pt. 2, Hanshaw v. City of Huntington, 1

1995As we held in syllabus point four of Nellas v. Loucas, 156 W.Va. 77 , 191 S.E.2d 160 (1972): According to Rule 15(b), W.Va.R.C.P.[,] an amendment to a pleading to assert an affirmative defense offered during or after trial over the objection of the opposing party should not be accepted unless (1) it permits the presentation of the merits of the action; (2) the adverse party will not be prejudiced by the sudden assertion of the defense; and (3) the adverse party is given ample opportunity to meet the issue. 156 W.Va. at 77 , 191 S.E.2d at 161 ; accord Syl.Pt. 2, Hanshaw v. City of Huntington, 1

2020“Mitigation of damages is an affirmative defense, and its burden is entirely on the contract breaker.” Martin v. Bd. of Educ. of Lincoln Cty., 120 W.

1994The cases cited and relied upon by Guyan Machinery on appeal stand for two propositions: first, that an employee who seeks damages for loss of income in a wrongful discharge case has a duty to exercise reasonable diligence to minimize his damages; see Davis v. Laurel River Lumber Co., 85 W.Va. 191 , 101 S.E. 447 (1919); Martin v. Bd. of Ed. of Lincoln County, 120 W.Va. 621 , 199 S.E. 887 (1939); Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673 , 289 S.E.2d 692 (1982); [3] and secondly, that the defense of mitigation of damages is an affirmative defense, the burden of which lies entirely

2017Sattler v. Bailey, 184 W.Va. 212 , 222 n.14, 400 S.E.2d 220 , 230 n.14 (1990) (quoting Richards v. Mileski, 662 F.2d 65, 73 (D.C.

1990Id. at 73 .

2003The BCSE next contends that Mr. Stanley did not timely raise the affirmative defense of the statute of limitations, and cites Dept. of Health v. Robert Morris N., 195 W.Va. 759 , 466 S.E.2d 827 (1995), and Rule 8 of the West Virginia Rules of Civil Procedure for the proposition that the statute of limitations defense should have been included in a written pleading filed by Mr. Stanley.

2003The BCSE next contends that Mr. Stanley did not timely raise the affirmative defense of the statute of limitations, and cites Dept. of Health v. Robert Morris N., 195 W.Va. 759 , 466 S.E.2d 827 (1995), and Rule 8 of the West Virginia Rules of Civil Procedure for the proposition that the statute of limitations defense should have been included in a written pleading filed by Mr. Stanley.

2001State v. Hughes, 197 W.Va. 518, 524 , 476 S.E.2d 189, 195 (1996) (quoting State v. W.J.B., 166 W.Va. 602, 606 , 276 S.E.2d 550, 553 (1981) (citations omitted)). [6] In the course of rendering these rulings, we have also clarified the essential elements of this offense. [7] *720 Similarly, we have refined the circumstances under which a defendant may avail him/herself of a self-defense argument [8] *721 and crafted various procedural rules to govern the assertion of this affirmative defense. [9] *722 In fact, the right to self-defense is so entrenched in the common law of this State that, some

2001State v. Hughes, 197 W.Va. 518, 524 , 476 S.E.2d 189, 195 (1996) (quoting State v. W.J.B., 166 W.Va. 602, 606 , 276 S.E.2d 550, 553 (1981) (citations omitted)). 6 In the course of rendering these rulings, we have also clarified the essential elements of this offense. 7 Similarly, we have refined the eir-cumstances under which a defendant may avail him/herself of a self-defense argument 8 and crafted various procedural rules to govern the assertion of this affirmative defense. 9 In fact, the right to self-defense is so entrenched in the common law of this State that, some eighty years ago, this

2000P. 8(c). [6] See American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 96 (4th Cir.1996) (affirmative *112 defense of arbitration must be pled in answer); McDonnell v. Dean Witter Reynolds, Inc., 620 F.Supp. 152, 155-56 (D.Conn.1985) ("the affirmative defense of arbitration must appear in the answer, and `a party's failure to plead an affirmative defense bars its invocation at later stages of the litigation.'") (citation omitted).

2000P. 8(c). 6 See American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88 , 96 (4th Cir.1996) (affirma tive defense of arbitration must be pled in answer); McDonnell v. Dean Witter Reynolds, Inc., 620 F.Supp. 152, 155-56 (D.Conn. 1985) (“the affirmative defense of arbitration must appear in the answer, and ‘a party’s failure to plead an affirmative defense bars its invocation at later stages of the litigation.’”) (citation omitted).