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Justices rule on legal malpractice procedural issue

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An Indiana Supreme Court decision allows an Indianapolis attorney and a local law firm to raise a statute of limitations on legal malpractice claims against them.

In a nine-page ruling late Thursday in Joseph J. Reiswerg and Cohen Garelick & Glazier v. Pam Statom, 49S02-0906-CV-280, the court tackled a procedural issue that hadn’t specifically come up in Indiana before and found in favor of both the contract attorney and Indianapolis law firm.

The case stems from a medical malpractice action that Pam Statom raised following a 1998 sinus surgery at the Veterans Affairs hospital in Indianapolis. Several problems surfaced because of that procedure and Statom retained Joseph Reiswerg, who shared office space with Cohen Garelick & Glazier and worked as a contract attorney with the law firm. He filed a tort claim notice about her intent to sue for medical malpractice, but the VA determined it wasn’t received within the two-year statute of limitations period and denied the claim as untimely. Reiswerg withdrew as the woman’s attorney after filing a notice of appeal in federal court about the administrative rejection of her claim, and Statom proceeded pro se but eventually lost in April 2004 on grounds that the suit was time-barred.

In November 2005, Statom filed this legal malpractice claim in Marion Superior Court on grounds that Reiswerg failed to timely file a federal tort claims notice, as well as fraud and constructive fraud claims against both defendants. The attorney and the firm relied on the statute of limitations as affirmative defenses in the legal malpractice case.

After a year of discovery, Statom moved for partial summary judgment and sought a ruling that both Reiswerg and CG&G were “negligent as a matter of law.” Neither defendant raised the statute of limitations in response to her partial summary judgment, arguing later that it wasn’t required because of her partial motion that didn’t address their legal malpractice liability. Both the firm and attorney later moved for summary judgment because of the statute of limitations expiration, and Statom moved to strike them. Marion Superior Judge David Shaheed granted Statom’s motion to strike for both, but certified his judgment for appeal.

In a December 2008 ruling, the Court of Appeals affirmed the trial court’s striking of Reiswerg’s motion for summary judgment but reversed the order striking a summary judgment order from CG&G. The appellate panel in March 2009 reviewed its decision on rehearing but affirmed what it had previously ruled, and the Supreme Court later granted transfer on the novel issue.

Justices reversed the trial court and held that a party doesn’t waive an affirmative defense by failing to raise it in response to a partial summary judgment motion that wouldn’t dispose of the main liability issue of the case. That means both Reiswerg and CG&G can raise that defense on remand.

“No Indiana case has heretofore addressed this issue in the context of a motion for partial summary judgment on less than liability,” Justice Theodore Boehm wrote. “However, decisions from other jurisdictions are consistent with our view. Where, as here, the plaintiff moves only for partial summary judgment on an issue or an element but not as to liability, the defendant is under no obligation to present all of its affirmative defenses at the summary judgment stage.”

The court found Statom didn’t move for full or partial summary judgment on liability, and so the full liability issue wasn’t included in the judgment in her favor.

“She cannot now claim a victory greater than she sought and greater than she placed in issue,” Justice Boehm wrote.

Justice Robert D. Rucker, joined by Justice Frank Sullivan, issued a separate opinion that concurred and dissented in part, saying the trial court correctly struck Reiswerg’s motion for summary judgment. They dissented in regard to Reiswerg’s motion, but concurred in relation to the law firm motion.

Justice Rucker wrote that the majority found Reiswerg didn’t waive his affirmative defense because he wasn’t obligated to raise it at that point.

“This is so, according to the majority, because Statom’s motion sought resolution only on ‘some but not all elements of liability…’ This assertion is not an easy lift for the majority. Indeed the majority labors mightily to support its position. But this case is not complicated,” he wrote.

“Under this State’s long-standing and settled law, Reiswerg could not resurrect his statute of limitations defense in his own motion for summary judgment,” Justice Rucker continued. “The defense had been waived. Easy case. The trial court properly struck Reiswerg’s summary judgment motion, and its decision should be affirmed.”
 

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  1. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  2. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  3. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  4. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

  5. No, Ron Drake is not running against incumbent Larry Bucshon. That’s totally wrong; and destructively misleading to say anything like that. All political candidates, including me in the 8th district, are facing voters, not incumbents. You should not firewall away any of voters’ options. We need them all now more than ever. Right? Y’all have for decades given the Ds and Rs free 24/7/365 coverage of taxpayer-supported promotion at the expense of all alternatives. That’s plenty of head-start, money-in-the-pocket advantage for parties and people that don’t need any more free immunities, powers, privileges and money denied all others. Now it’s time to play fair and let voters know that there are, in fact, options. Much, much better, and not-corrupt options. Liberty or Bust! Andy Horning Libertarian for IN08 USA House of Representatives Freedom, Indiana

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