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ATTORNEYS FOR APPELLANT JOSEPH J. REISWERG David T. Kasper Julia Blackwell Gelinas Maggie L. Smith Lucy R. Dollens Darren A. Craig Indianapolis, Indiana ATTORNEYS FOR APPELLANT COHEN GARELICK & GLAZIER Michael E. Brown Eric D. Johnson Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Todd J. Kaiser John K. Henning Indianapolis, Indiana

FILED
May 06 2010, 3:07 pm

______________________________________________________________________________ CLERK

In the

of the supreme court, court of appeals and tax court

Indiana Supreme Court
_________________________________ No. 49S02-0906-CV-280 JOSEPH J. REISWERG AND COHEN GARELICK & GLAZIER, Appellants (Defendants below), v. PAM STATOM, Appellee (Plaintiff below). _________________________________ Appeal from the Marion Superior Court, No. 49D01-0511-PL-043816 The Honorable David A. Shaheed, Judge _________________________________ On Petition t o Transfer from the Indiana Court of Appeals, No. 49A02-0801-CV-49 _________________________________ May 6, 2010 Boehm, Justice. In this interlocutory appeal, Joseph Reiswerg and the law firm of Cohen Garelick and Grazier filed motions for summary judgment asserting an affirmative defense of statute of limitations to Pam Statom's attorney malpractice lawsuit against them. The trial court granted St a-

tom's motion to strike both motions, stating that Reiswerg and the law firm had waived the statute of limitations defense by failing to raise it in response to Statom's motion for partial su mmary judgment against them. We reverse the trial court and hold that a party does not waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that would not be dispositive as to the issue of liability. Facts and Procedural History In December 1998, Pam Statom underwent sinus surgery at the Veterans Affairs hospital in Indianapolis. According to Statom, this surgery resulted in several problems, and she retained attorney Joseph Reiswerg to pursue a malpractice action against the Department of Veterans Affairs (VA). Reiswerg shared office space with Cohen Garelick and Grazier (CGG) and worked as a contract attorney with the law firm. Reiswerg filed a Tort Claims Notice for Statom notifying the VA of her intent to sue for malpractice. According to Reiswerg, he filed the notice in November 2000, within the two-year period for filing claims against the VA.1 He did not send the notice by certified mail and did not verify that the VA had received it before the period expired. The VA determined that its stamp showed the notice was received in February 2001, and denied the claim as untimely. Reiswerg withdrew as Statom's attorney after filing a notice of Statom's appeal to federal district court pursuant to 28 U.S.C.

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