Friday, May 7, 2010
The Indiana Supreme Court has held that a law firm defendant did not waive the statute of limitations defense in a legal malpractice case by failing to raise the issue in response to the plaintiff's motion for partial summary judgment. The underlying case was a medical malpractice action against a VA hospital. The court majority concluded:
...[plaintiff] moved for partial summary judgment, seeking only a decision that the defendants were negligent as a matter of law. If [plaintiff] wanted to move for partial summary judgment on the issue of liability, her motion should have so stated .She did not. She cannot now claim a victory greater than she sought and greater than she placed in issue.
Justice Rucker dissented and would find the defense waived: