UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-23705-BLOOM/Otazo-Reyes

AMERICAN NATIONAL INSURANCE COMPANY, 

Plaintiff, 

v. 

ERICA FORTUN, 

Defendant. 

_______________________________________________/ 

ORDER ON MOTION TO STRIKE

THIS CAUSE is before the Court upon Plaintiff American National Insurance Company’s

(“ANICO”) Motion to Strike Defendant Erica Fortun’s (“Fortun”) Affirmative Defenses, ECF No. 

[40] (“Motion”), filed on May 16, 2023. Fortun filed a Response, ECF No. [41], to which ANICO

filed a Reply, ECF No. [42]. The Court has carefully considered the parties’ submissions, the 

record in this case, the applicable law, and is otherwise fully advised. For the reasons that follow, 

the Motion is granted in part and denied in part. 

I. BACKGROUND

On November 11, 2022, ANICO initiated this action against Fortun, asserting a single claim 

under the Declaratory Judgment Act, 28 U.S.C. § 2201. ECF No. [1]. ANICO seeks a declaration 

that ANICO is entitled to rescind the life insurance policy of Jose Herrera (“Herrera”) pursuant to 

Florida Statute 627.409(1). See id. ¶ 26. 

In the Complaint, ANICO alleges that, in June 2021, Herrera applied for and was issued an 

ANICO life insurance policy (“Policy”) in the amount of $999,999.00. Id. ¶ 7. Defendant Fortun 

was Herrera’s spouse and designated as the Policy’s beneficiary. Id. ¶ 7. Following Herrera’s death 

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on February 19, 2022, Fortun made a claim for the Policy’s benefits. Id. ¶ 10. ANICO asserts that 

the Policy is subject to rescission because Herrera’s Application for Individual Life Insurance

(“Application”) contained two material misrepresentations about his personal and health history. 

See id. at 3-5. Specifically, Herrera answered “no” to a question on the Application asking whether 

he had ever used tobacco, and “no” to a question asking whether he had ever been diagnosed with 

liver disease. Id. at 3-4. ANICO alleges that Herrera’s answers to those questions were material 

misrepresentations and entitle ANICO to rescission of the Policy. 

On April 25, 2023, Fortun filed an Amended Answer and Affirmative Defenses. ECF No. [37]. 

Therein, she raises 15 affirmative defenses. Id. On May 16, 2023, ANICO filed the instant Motion 

to Strike Affirmative Defenses 1-9. ECF No. [40].

II. LEGAL STANDARD

A. Affirmative Defenses

“An affirmative defense is one that admits to the complaint, but avoids liability, wholly or 

partly, by new allegations of excuse, justification, or other negating matters.” Adams v. Jumpstart 

Wireless Corp., 294 F.R.D. 668, 671 (S.D. Fla. 2013). “A defense that simply points out a defect 

or lack of evidence in the plaintiff’s case is not an affirmative defense.” Id. (citing Flav-O-Rich, 

Inc. v. Rawson Food Serv., Inc. (In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 

1988)). “[A]ffirmative defenses are not subject to the heightened pleading standard elucidated in 

Twombly and Iqbal.” Northrop & Johnson Holding Co., Inc. v. Leahy, No. 16-cv-63008-BLOOM, 

2017 WL 5632041, at *3 (S.D. Fla. Nov. 22, 2017) (quotation marks omitted).

B. Motions to Strike

Rule 12(f) of the Federal Rules of Civil Procedure permits a court to “strike from a pleading 

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. 

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Civ. P. 12(f). District Courts have “broad discretion in considering a motion to strike under Fed. 

R. Civ. P. 12(f).” Morrison v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1317-18 

(S.D. Fla. 2005). Despite this discretion, “[a] motion to strike is a drastic remedy[,] which is 

disfavored by the courts and will usually be denied unless the allegations have no possible relation 

to the controversy and may cause prejudice to one of the parties.” Thompson v. Kindred Nursing 

Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002) (internal quotation marks omitted); 

see also Gen. Defense Corp. v. Restorick, No. 08-60537-CIV-JORDAN, 2008 WL 11417688, at 

*2 (S.D. Fla. Nov. 3, 2008) (“[T]he standard for striking a defense is extremely high.” (quotation 

marks omitted)). Under this standard, “‘an affirmative defense must be stricken when the defense 

is comprised of no more than ‘bare-bones, conclusory allegations’ or is ‘insufficient as a matter of 

law.’” Northrop & Johnson Holding Co., 2017 WL 5632041, at *3 (quoting Adams, 294 F.R.D. at 

671 and Home Mgmt. Sols., Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *2 

(S.D. Fla. Aug. 21, 2007)). “A defense is insufficient as a matter of law only if: (1) on the face of 

the pleadings, it is patently frivolous, or (2) it is clearly invalid as a matter of law.” Microsoft Corp. 

v. Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002); see also Reyher v. 

Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995) (Where “a defense puts into 

issue relevant and substantial legal and factual questions, it is ‘sufficient’ and may survive a motion 

to strike, particularly when there is no showing of prejudice to the movant.”). 

III. DISCUSSION

A. Defense No. 1 – Application Not Attached to Policy 

In Defense No. 1, Fortun argues that ANICO is precluded from using any statement in the 

life insurance application to contest the policy, because that application was not attached to the 

policy when it was issued or re-issued. ECF No. [37] at 5. ANICO correctly argues that this 

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Defense seeks to point out insufficient evidence in Plaintiff’s prima facie case and is accordingly 

not a valid affirmative defense. See Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 682 (S.D. Fla. 2015)

(“a defense that simply points out a defect or lack of evidence in a plaintiff’s case is not an 

affirmative defense.”).

Defense No. 1 is stricken.

B. Defense No. 2 – Knowledge and Belief; Materiality

In Defense No. 2, Fortun argues that ANICO lacks evidence that Herrera intentionally 

misrepresented his medical history. ECF No. [37] at 5. ANICO correctly points out that this 

purported Defense is either a denial of ANICO’s prima facie case or an evidentiary argument. 

Either way, it is not a valid affirmative defense. See Tsavaris, 310 F.R.D. at 682.

Defense No. 2 is stricken.

C. Defense No. 3 – No Materiality

In Defense No. 3, Fortun argues that the alleged misrepresentations given by Herrera were 

not material to ANICO’s acceptance of risk and, as a result, ANICO has no basis to rescind the 

policy. ECF No. [37] at 9. ANICO correctly argues that this purported Defense is in fact a denial 

of a necessary element of ANICO’s prima facie case—that Herrera made material misstatements. 

Defense No. 3 is stricken.

D. Defense No. 4 – No Tobacco Use

In Defense No. 4, Fortun argues that, because Herrera did not use tobacco within 24 months 

of the application date, he could not have been charged rates for a tobacco user. ECF No. [37] at 

9. ANICO correctly points out that this is a denial of the Complaint’s allegation that Herrera 

committed a material misrepresentation when he answered “no” in response to a question related 

to tobacco use. ECF No. [1] ¶ 15. Mere denials are not appropriate affirmative defenses. See 

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Adams, 294 F.R.D. at 671. 

Defense No. 4 is stricken.

E. Defense No. 5 – Plaintiff Bound by Agent’s Knowledge

In Defense No. 5, Fortun argues that ANICO is bound by the knowledge and mistakes o 

ANICO’s agent at the time that Herrera signed the application. ECF No. [37] at 9. ANICO copypastes its argument that this defense is a denial rather than an affirmative defense, ECF No. [40] 

at 6, but the Court is not convinced. The substance of this Defense is that ANICO is precluded 

from rescinding the policy due to acts or knowledge of ANICO’s agent. This Defense sufficiently 

“puts into issue relevant and substantial legal and factual questions” such that it should not be 

stricken. Reyher, 881 F. Supp. at 576.

F. Defense No. 6 – Plaintiff Did Not Rely on Application

In Defense No. 6, Fortun asserts that ANICO performed its own investigations and did not 

rely on the application submitted by Herrera. ECF No. [37] at 10-11. ANICO again copy-pastes 

its argument that this defense is a denial rather than an affirmative defense. ECF No. [40] at 6. 

This defense is similar to Defense No. 5. Given ANICO’s failure to convince the Court that this 

Defense does not “put[ ] into issue relevant and substantial legal and factual questions,” Reyher, 

881 F. Supp. at 576, the request to strike is denied.

G. Defense No. 7 – Vague Answers Construed Favorably

In Defense No. 7, Fortun argues that any answers provided by Herrera in response to vague 

and ambiguous questions must be construed in favor of coverage. ECF No. [37] at 11. ANICO 

correctly points out that this purported Defense is essentially an argument that Herrera did not 

make material misrepresentations on the application. As such, this purported Defense is a denial 

of Plaintiff’s prima facie case, as opposed to a valid affirmative defense.

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Defense No. 7 is stricken.

H. Defense No. 8 – Health Condition Not Material

In Defense No. 8, Fortun argues that suspected liver enzyme elevations without diagnosis 

is not material to ANICO’s acceptance of risk because ANICO would not have required Herrera 

to undergo a physical exam prior to issuing the policy. ECF No. [37] at 12. ANICO correctly points 

out that this purported Defense is another attempt to deny that Herrera made a “material 

misrepresentation,” so it is a denial rather than a valid affirmative defense.

Defense No. 8 is stricken.

I. Defense No. 9 – No Requirement to Disclose

In Defense No. 9, Fortun argues that Herrera was not required to disclose the order for an 

ultrasound on the application and, as a result, did not intentionally misrepresent anything about his 

medical history. ECF No. [37] at 13-14. ANICO correctly points out that this purported Defense 

is another attempt to deny that Herrera made a “material misrepresentation” on his Application, so 

it is a denial rather than a valid affirmative defense.

Defense No. 9 is stricken.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. ANICO’s Motion to Strike Fortun’s Affirmative Defenses, ECF No. [40], is 

GRANTED IN PART AND DENIED IN PART.

2. The following affirmative defenses asserted by Fortun in her Affirmative Defenses, 

ECF No. [37], are STRICKEN: 1-4, 7-9.

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DONE AND ORDERED in Chambers at Miami, Florida, on June 27, 2023.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

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