Rehearing finds defendant can raise additional defenses

July 30, 2015

In tweaking an earlier reversal, the Indiana Supreme Court has given the defendant the avenue to raise additional unasserted defenses.

Continental Casualty Co. and Twin City Fire Insurance Co. petitioned the Indiana Supreme Court for rehearing on Wellpoint, Inc. v. Nat’l Union Fire Ins. Co., 29 N.E.3d 716 (Ind. 2015). The appellees argued a portion of the court’s opinion exceeds the power granted by Trial Rule 56(B).

The issue is whether the Supreme Court should have granted summary judgment for Anthem on issues not raised by Continental’s own motion for summary judgment.

In its motion, Continental asked the trial court to deny all the claims alleged in Anthem’s second amended complaint. However, Continental also told the lower court it had additional defenses which would require further discovery and so were not included in the summary judgment motion.

Continental asserted that by moving for summary judgment on only some of its defenses, it was not waiving its right to pursue other defenses.

Anthem countered that Continental waived any additional affirmative defenses. The health insurance giant argued Continental did not request summary judgment on only certain specified affirmative defenses. Moreover, Continental had a duty to assert its affirmative defenses in response to Anthem’s request for judgment.

The Supreme Court disagreed, noting Continental, not Anthem, filed for summary judgment and raised only some of its affirmative defenses. When the defendant moves for judgment and the plaintiff is the non-moving party, the Supreme Court stated, the defendant has no duty to raise all its affirmative defenses.

“We decline to find waiver of unasserted defenses by (Continental) in this case,” Justice Brent Dickson wrote for the court. “As the moving party, (Continental) controls the definition of the issues raised by its summary judgment motion for purposes of Trial Rule 56(B).”

The Supreme Court modified its original decision to direct the entry of summary judgment in favor of Anthem on the issues raised in Continental’s motion for summary judgment.  

The case is Wellpoint, Inc. (F/K/A Anthem, Inc.) and Anthem Insurance Companies, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, AIG Eurpoe (U.K.) Limited, et. al., 49S05-1404-PL-244.



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