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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. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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