With the advent of comparative fault, contributory negligence became an affirmative defense for defendant to plead and prove. Failure to plead the defense waives it, regardless of the evidence. 187 Ill. App. With this background I believe that the decision in Elkins must be evaluated to determine whether that decision controls the instant case. The Elkins court was concerned with interspousal immunity.
Immunity is based chiefly upon a person's status.
This was the situation in Elkins, and as a result the defense of interspousal immunity, being personal, was not available to the insurer. In contrast, the defense of contributory negligence is not personal. No special status or position is involved. Rather, the plaintiff's conduct is simply evaluated to determine whether ordinary care was exercised. If the plaintiff was contributorily negligent, then damages are reduced accordingly.