notice, enabling them to consider unpleaded
facts in deciding motions to
66) Still, a trial court is not required to permit a proffer about an issue that is wholly irrelevant or not before the court, such as an unpleaded
137) While Rule 26(b) allows a court to "order discovery of any matter relevant to the subject matter involved in the action," (138) at least one district court has found that "an unpleaded
affirmative defense is not 'involved in the action'--instead, it is 'exclu[ded] from the case.
We note in passing that even if defendant had failed to interpose the defense in its answer, a court may nevertheless grant a motion for summary judgment based on an unpleaded
defense (Rogoff v San Juan Racing Assn.
If insurers wish to rely on unpleaded
information that indisputably bars coverage, courts should impose an incontrovertible evidence standard on carriers, so that a defense can be denied only if there is incontrovertible evidence placing the claim outside the policy's coverage.