Justices rule on legal malpractice procedural issue

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.”