Guillory v. Service Life & Casualty Insurance Co.

I concur only in the vacating of the summary judgment; I would vacate and remand the cause to permit an abatement to afford an opportunity to amend pleadings. I respectfully dissent in all other respects.

First, the lack of legal authority to sue is not an affirmative defense, if by affirmative defense the majority means that defendant has the burden of proof on the issue after a verified denial is filed. True, a verified denial of plaintiffs capacity to sue must be filed by defendant or the issue is waived; but the pleading requirement does not mean defendant has the burden of proof on the…