O'Donnell v. Fletcher

This action was filed on behalf of a personal injury protection (PIP) insurer in the name of the injured party, Rodney K. O'Donnell, to recover payments for medical expenses and lost wages pursuant to K.S.A. 40-3113a(c). The trial court entered a judgment in favor of defendant Daniel J. Fletcher on the grounds that the statute of limitations had run and that plaintiff O'Donnell was not the real party in interest. Plaintiff appeals. Plaintiff contends that the statute of limitations is an affirmative defense which must be pled and that the trial court erroneously denied him a default judgment because the statute of limitations had run. Support for this contention is found in Gideon v. Gates, 5 Kan. App. 2d 23, 611 P.2d 166, rev. denied 228 Kan. 806 (1980). There, this Court held that the statute of limitations is an affirmative defense and the burden of pleading and proving its applicability rests on the defendant. Gideon at page 24. Moreover, K.S.A. 60-208(c) requires that in responding to a preceding pleading a party shall set forth the affirmative defense.