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Tools of the Trade: Responding to the Complaint

By David B. Collins

Last issue, I indicated that I would be writing a series of articles to familiarize those unfamiliar with the litigation process of terms that they might see in letters from the defense attorney to the insurance company. This article addresses terms one might see in the initial letters sent by the defense attorney to the insurance company.

After being served with a complaint, a defendant has either a set number of days or a specific date by which to file a responsive pleading. The venue (state or federal) and type of lawsuit dictate when a responsive pleading must be filed, and the summons that accompanies the complaint will indicate when and where a responsive pleading must be filed.

Defense counsel must carefully analyze the complaint to determine how to proceed. Typically, a defendant will respond to a complaint one of two ways: by filing a motion to dismiss or an answer, sometimes including affirmative defenses, counter-claims, cross-claims and/or third party claims as part of the answer.

A substantive motion to dismiss seeks to have a complaint, or a portion of a complaint, dismissed with prejudice, meaning that it cannot be refiled. A substantive motion to dismiss is appropriate, for example, when a plaintiff waited too long to file a lawsuit. This is a fatal defect that cannot be overcome by a subsequent pleading. In that situation, a defendant may file a motion to dismiss the complaint with prejudice, based on the statute of limitations. If granted, the complaint (or a portion thereof) will be dismissed and may not be refiled. The case (or a portion thereof) is concluded, subject only to being overturned on appeal.

More frequently, a non-substantive motion to dismiss is filed. This type of motion argues that the allegations of the complaint do not properly allege a valid cause of action. An example might be if allegations are vague and/or ambiguous. This type of a motion to dismiss usually does not initially seek to have the complaint dismissed with prejudice, but seeks to have the court require the plaintiff to replead the allegations within a set amount of time.

Why bother with a non-substantive motion to dismiss? Once the defendant answers a complaint, then the defendant must defend against the allegations pled in the complaint. Specific allegations of negligence, for example, are easier to defend against than vague allegations. By forcing a plaintiff to clearly articulate his, her or its allegations, the plaintiff may abandon some or all of the case.

If a plaintiff fails to properly state a valid cause of action after being given repeated opportunities to do so, the complaint, or a portion thereof, may be subject to dismissal with prejudice. Again, in this event, the case (or a portion thereof) is concluded, subject only to being overturned on appeal.

If the complaint states a valid cause of action, an answer must be filed. The defense attorney works with the adjuster or attorney and the client to prepare the answer. Special consideration must be given to whether any potential affirmative defenses, counter-claims, cross-claims and/or third party complaints should be raised as part of the answer, or explored through discovery, to be raised later if warranted.

After the responsive pleading is placed on file, the defense attorney generally reports to the insurance company, copying the client. It is a good idea to include a copy of the motion to dismiss or answer. The client should review the responsive pleading, and contact the defense attorney with any questions or concerns.

Originally published in the Winter 2011 edition of Quinn Quarterly.

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