Michael P. Quirk v. Delaware County, Indiana and The Board of Commissioners of Delaware County, Indiana , 91 N.E.3d 1008 ( 2018 )

FILED
Jan 08 2018, 8:51 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Jason R. Delk John M. Stevens
Delk McNally LLP John H. Brooke
Muncie, Indiana Brooke Stevens, P.C.
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael P. Quirk, January 8, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A02-1706-PL-1208
v. Appeal from the Delaware Circuit
Court
Delaware County, Indiana and The Honorable Peter Haviza,
The Board of Commissioners of Special Judge
Delaware County, Indiana, Trial Court Cause No.
Appellee-Defendants 18C01-1210-PL-28
May, Judge.
[1] Michael P. Quirk (“Quirk”) appeals the trial court’s grant of summary
judgment in favor of Delaware County, Indiana, and the Board of
Commissioners of Delaware County, Indiana (collectively, “Delaware”). He
asserts that because Delaware did not respond to his motion for summary
judgment within the thirty days allowed in Indiana Trial Rule 56(C), the trial
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court erred when it allowed Delaware to submit a brief after the summary
judgment hearing that raised new arguments regarding affirmative defenses and
when it thereafter relied on Delaware’s affirmative defenses to grant summary
judgment to Delaware. 1 Because Delaware’s motion for summary judgment,
which was filed before Quirk’s motion for summary judgment, had asserted the
argument and designated the evidence on which Delaware was entitled to
summary judgment, we affirm.
Facts and Procedural History 2
[2] Quirk was a public defender in Delaware County. Starting in 2005, he was
enrolled in their health benefits plan. On July 1, 2011, Quirk was in a single-
vehicle accident. According to the vehicle’s Event Data Recorder, 3 Quirk was
speeding, was not using his seatbelt, and did not apply the brakes until he
crashed. Quirk’s blood alcohol level was .363%. Quirk was charged with and
1
We held oral argument in this case on December 5, 2017, in the Indiana Court of Appeals Courtroom. We
thank counsel for their able advocacy.
2
Neither party provided a Statement of Facts in a narrative form as required by Appellate Rule 46(A)(6)(c);
rather, they provided numbered lists of facts. Quirk appears to have adopted his numbered list of facts from
his “Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment and Motion and
Memorandum of Law in Support of Plaintiff’s Motion for Summary Judgment” filed with the trial court on
August 12, 2016. (Appellant’s App. Vol. II at 141.) Delaware appears to have adopted its numbered list of
facts from “Defendant’s Statement of Undisputed Facts in Support of Motion for Summary Judgment” filed
with the trial court on April 18, 2016. (Appellee’s App. Vol. II at 9.) For future reference, we remind
counsel that the Statement of Facts should be in narrative form.
3
The record does not provide any additional details about the Event Data Recorder.
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convicted of Class A misdemeanor operating while intoxicated and Class A
misdemeanor criminal recklessness. 4
[3] When Quirk submitted his medical bills from the accident to the administrator
of the Delaware County health insurance plan, they were denied due to the
“Illegal Acts Exclusion” found in the policy’s description of the coverage
provided. (See, e.g., Appellee’s App. Vol. II at 128.) 5 This Illegal Acts
Exclusion provides, in pertinent part:
The Plan does not cover charges for any of the following services:
*****
(7) To the extent permitted by applicable law, services and
supplies rendered for any condition, Disability or expense
resulting from or sustained as a result of being engaged in an
illegal occupation, commission of or attempted commission of an
assault or an illegal act unless resulting from an act of domestic
violence or a physical or mental medical condition as would be
prohibited under the Health Insurance Portability and
Accountability Act of 1996.
(Appellant’s App. Vol. II at 83.)
4
Ind. Code § 9-30-5-1(b) (2001), and Indiana Code § 35-42-2-2 (2006), respectively.
5
Quirk’s appendix failed to include Delaware’s response to his complaint, its Motion for Summary
Judgment, or the exhibits it submitted with its Motion for Summary Judgment, including the documentation
pertinent to Quirk’s appeal through the insurance company’s internal appeal procedure. Delaware submitted
these in its own appendix.
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[4] On October 12, 2011, Quirk appealed the denial of his claim through the
insurance plan’s internal appeal procedure. Again, this claim was denied due to
the Illegal Acts Exclusion. In the appeal denial, Quirk was notified that the
plan administrator has not been provided any information that
would suggest that your illegal act . . . is the result of a physical
or mental condition, such that the plan’s exclusion for expenses
resulting from or sustained as a result of the commission of your
illegal act would be prohibited under the Health Insurance
Portability and Accountability Act of 1996.
(Appellee’s App. Vol. II at 129.)
[5] Quirk had further medical procedures resulting from the injuries acquired
during the car accident, the claims for which were also denied under the Illegal
Acts Exclusion. He again appealed, but his appeal was denied. He was again
informed the medical bills would not be paid by the insurance company unless
the illegal act was the result of a mental or physical medical condition. The
record contains no evidence or argument that Quirk asserted, at any time
during those insurance company proceedings, that he had a mental or physical
medical condition that made the Illegal Acts Exclusion inapplicable.
[6] In October 2012, Quirk filed suit against Delaware for the unpaid medical bills,
stating Delaware had breached the insurance contract and acted in bad faith. In
Delaware’s answer to the complaint, it asserted the affirmative defenses of
estoppel, laches, accord and satisfaction, doctrine of unclean hands, and Statute
of Frauds.
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[7] On April 18, 2016, Delaware filed a motion for summary judgment based on
the Illegal Acts Exclusion and designated in support thereof all “pleadings,
answers to Discovery, policy of insurance, and attached affidavits and
exhibits.” 6 (Id. at 7.) Delaware offered exhibits in support of its motion,
including: (1) proof of the car accident; (2) proof of Quirk’s blood alcohol level
of .363%; (3) proof Quirk was convicted of operating while intoxicated and
criminal recklessness; (4) the insurance plan; (5) Quirk’s enrollment in the
insurance plan; (6) Quirk’s appeal letters regarding the denial of benefits; and
(7) the insurance plan’s denial of claims wherein the reason for denial was
explained.
[8] Quirk responded to Delaware’s motion within his own motion for summary
judgment. Therein, Quirk argued, for the first time, the mental medical
condition exception (“Mental Medical Condition Exception”) to the Illegal
Acts Exclusion required Delaware to pay his claims. In the alternative, he also
argued Delaware did not designate any evidence he was involved in an illegal
act when the car accident occurred. Delaware did not file a response to Quirk’s
response or motion.
[9] The trial court held a hearing on the motions for summary judgment. On
January 19, 2017, the trial court issued a “Ruling on Summary Judgment
6
Delaware contended, in its motion for summary judgment, Quirk failed to respond to its Request for
Admissions resulting in admission of those facts. (Appellee’s App. Vol. II at 18-19.) When answering
Delaware’s motion, Quirk claimed he did respond. (Appellant’s App. Vol. II at 169-183.) The trial court
stated it would not “consider either the Request or the Answer.” (Id. at 20.) We also do not consider them.
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Motions” (“First Summary Judgment Order”), wherein it first denied Quirk’s
request for punitive damages for breach of duty to act in good faith finding
Delaware to be a political subdivision and “not liable for punitive damages.”
(Appellant’s App. Vol. II at 27.) Further, it found that because Quirk failed to
assert the Mental Medical Condition Exception to the Illegal Acts Exclusion,
Delaware did not breach its duty to act in good faith. However, the trial court
delayed ruling on Quirk’s breach of contract claim and requested the parties
submit supplemental authority, ordering:
G. ISSUE OF UNTIMELINESS
52. Delaware County has raised one additional concern which
strikes true in this case.
“If Mr. Quirk had a claim or exception to this
determination (denial of his claim), he should have raised
those claims with his insurer. Mr. Quirk was provided
more than ample opportunity, over the course of the claim
review and appeal process and chose not to present this
evidence until the eve of Summary Judgment. Mr. Quirk’s
sudden argument that any newly proffered evidence
should be considered must fail as a matter of law and the
Plan Administrator’s decision based on evidence available
at the time should be upheld.”
53. In its Answer, Delaware County raised the following
affirmative defenses:
1. Plaintiff’s claims are barred by waiver.
2. Plaintiff’s claims are barred by estoppel.
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3. Plaintiff’s claims are barred by laches.
4. Plaintiff’s complaint is barred by the doctrine of unclean
hands.
54. This issue was not really at the forefront of the Summary
Judgment arguments and was not briefed by both parties. The
Court would like to have this issue briefed in this case which
involves a claim for over $500,000.00 [sic]
(Id. at 25-26.)
[10] In responding to the trial court’s request for briefing as to timeliness, Quirk
asserted he was not required to disclose the mental medical condition at any
time during the underlying insurance claim and internal appeal proceedings.
Accordingly, Quirk claimed he was entitled to judgment in his favor because
the trial court acknowledged in its First Summary Judgment Order that the plan
provided a Mental Medical Condition Exception to the Illegal Acts Exclusion
and that Quirk “was suffering from mental medical conditions[,]” (id. at 25), at
the time of the accident.
[11] In its brief in response to the trial court’s request as to timeliness, Delaware
asserted Quirk failed to provide evidence of his mental medical condition
during the insurance claims process; thus, Delaware claims, it properly denied
his insurance claim under the Illegal Acts Exclusion. Additionally, Delaware
argued the Plan Administrator had full discretion and authority to interpret the
plan and decide whether to grant or deny an insurance claim. (See id. at 207.)
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[12] On May 2, 2017, in its second ruling on summary judgment, (“Second
Summary Judgment Order”), the trial court granted Delaware’s motion for
summary judgment and denied Quirk’s motion for summary judgment. In
support thereof, the court found the Plan Administrator had “full discretionary
power to take all actions necessary or proper to . . . construe and interpret this
Plan [and t]o decide all questions of eligibility.” (Id. at 31.) Moreover, it found
that the Plan provides that ‘Failure to submit written proof of loss
with respect to a claim for Covered Charges before the deadline
for submission of claims shall invalidate that claim, unless the
affected Covered Person demonstrates to the satisfaction of the
Plan Administrator that it was not reasonably possible to furnish
such proof within the required time and that proof was furnished
as soon as was reasonably possible.’
(Id.)
[13] The trial court found the affirmative defenses of waiver, laches, and equitable
estoppel applied because: (1) “[Quirk] intentionally chose not to submit
additional evidence of his ‘mental condition’ within the designated time,” (id. at
32); (2) “Delaware County [was] prejudiced by Quirk’s delay,” (id.); and (3)
“Quirk’s own actions prevent[ed] Delaware County from having the
opportunity to examine his ‘mental condition’ at a pertinent time.” (Id.)
Applying those defenses, the trial court concluded “[b]y his own actions, Quirk
is precluded from submittig [sic] new evidence at this late time[.]” (Id.) The
trial court granted Delaware’s motion for summary judgment and denied
Quirk’s because Quirk’s late disclosure of facts that meet the Mental Medical
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Condition Exception to the Illegal Acts Exclusion precluded his breach of
contract claim.
Discussion and Decision 7
[14] We review summary judgment using the same standard as the trial court:
summary judgment is appropriate only where the designated evidence shows
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. 8 Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).
All facts and reasonable inferences are construed in favor of the non-moving
party. City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). Where the
challenge to summary judgment raises questions of law, we review them de
novo. Rogers, 63 N.E.3d at 320. That the parties have filed cross-motions for
summary judgment does not alter our standard of review. Floyd Cty. v. City of
New Albany, 1 N.E.3d 207, 213 (Ind. Ct. App. 2014), trans. denied.
[15] A party who moves for summary judgment bears the risk that the court will
enter summary judgment in favor of the non-moving party, even when the non-
7
Although Quirk, in his Notice of Appeal, attached the trial court’s First Summary Judgment Order, which
is the final order as to Quirk’s claim of bad faith, his brief does not provide any argument for why this ruling
was in error, nor does he clearly indicate how the trial court erred in this ruling. As such this argument is
waived. See Carter v. Indianapolis Power & Light Co., 837 N.E.2d 509, 514 (Ind. Ct. App. 2005) (“A party
generally waives any issue for which it fails to develop a cogent argument or support with adequate citation
and portions of the record.”), reh’g denied, trans. denied.
8
Delaware advanced a different theory regarding the appropriate standard of review under which the trial
court should have considered the motions for summary judgment. As we conduct this review, we are not
concerned with the standard by which the underlying claim must be proven at trial, nor are we bound by the
federal standard of review for Employee Retirement Income Security Programs (ERISA).
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moving party has not filed a cross-motion for summary judgment or otherwise
responded to the summary judgment motion. Murphy v. Curtis, 930 N.E.2d
1228, 1233 (Ind. Ct. App. 2010), trans. denied. A trial court is not required to
grant an unopposed motion for summary judgment; summary judgment is
awarded on the merits of the motion, not on technicalities. Id. See also Ind.
Trial Rule 56(C) (“[s]ummary judgment shall not be granted as of course
because the opposing party fails to offer opposing affidavits of evidence, but the
court shall make its determination from the evidentiary matter designated to the
court”).
[16] An “adverse party shall have thirty (30) days after service of the motion to serve
a response and any opposing affidavits.” T.R. 56(C). If opposing the motion,
the adverse party is to “designate to the court all parts of pleadings, depositions,
answers to interrogatories, admissions, matters of judicial notice, and any other
matters on which it relies for the purposes of the motion.” Id. When a non-
moving party does not respond to a summary judgment motion within thirty
days, the trial court cannot consider summary judgment filings that party
subsequently makes. Miller v. Yedlowski, 916 N.E.2d 246, 251 (Ind. Ct. App.
2009), trans. denied. While a party who does not respond to a motion for
summary judgment may be limited to the facts established by the movant’s
submissions, such failure to respond does not preclude argument of the relevant
law on appeal. Murphy, 930 N.E.2d at 1234.
[17] Quirk appeals the trial court’s entry of summary judgment in favor of Delaware
because, he asserts, the trial court relied on arguments Delaware did not raise in
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a timely fashion. Quirk argues the trial court had no discretion to permit
Delaware, who failed to respond to his motion for summary judgment, to later
file anything regarding those defenses. Quirk cites Reiswerg v. Statom, 926
N.E.2d 26 (Ind. 2010), to support his argument.
[18] In Reiswerg, our Indiana Supreme Court held a responding party is “under no
obligation to raise their affirmative defenses in response to the motion for
partial summary judgment” if that motion for partial summary judgment “did
not mention, much less negate [the] affirmative defense.” Id. at 30. However,
if the motion for summary judgment would dispose of all liability, “a party is
required to assert affirmative defenses in response[.]” Id. at 31. Indeed, the
non-movant “must bring forth specific facts . . . to show a genuine issue for
trial. Abbott v. Bates, 670 N.E.2d 916, 923 (Ind. Ct. App. 1996), reh’g denied.
[19] However, unlike Reiswerg, wherein the non-moving party was silent, Delaware
had already filed its own motion for summary judgment and designated
evidence in support of its claim that Quirk had failed, at any point, to assert he
had a mental medical condition that rendered the Illegal Acts Exclusion
inapplicable. Delaware included in its designated evidence: “the pleadings,
answers to Discover, policy of insurance, and attached Affidavits and
Exhibits.” (Appellee’s App. Vol. II at 7.)
[20] In his motion for summary judgment, Quirk asserted for the first time since the
accident that he had a mental medical condition, and he designated affidavits of
a doctor to that effect. He claims, in that motion, that because of the Mental
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Medical Condition Exception, Delaware’s reliance on the Illegal Acts
Exclusion is misplaced. In his motion, he claims Delaware “never inquired as
to whether any of the bills from the July 1, 2011 accident w[ere] the result of a
‘mental medical condition’ that would render the ‘illegal act’ exclusion
inapplicable.” (Appellant’s App. Vol. II at 149.) However, the evidence
designated by Delaware with its previously filed motion for summary judgment
tells a different story.
[21] One of the exhibits designated by Delaware with its own motion for summary
judgment is a letter from the Plan Administrator to Quirk dated October 28,
2011, which stated:
The plan administrator has not been provided any information
that would suggest that your illegal act (i.e., your commission of
a Class A misdemeanor) is the result of a physical or mental
condition, such that the plan’s exclusion for expenses resulting
from or sustained as a result of the commission of your illegal act
would be prohibited under the Health Insurance Portability and
Accountability Act of 1996.
(Appellee’s App. Vol. II at 129.) Also in Delaware’s designated evidence is a
denial of benefits letter from March 23, 2012, in which Quirk was told the same
information, verbatim. (Id. at 138.) Thus, although Quirk argues Delaware
never requested information regarding a mental or physical medical condition,
he was informed that he needed to do so for coverage to be available, and
Delaware designated this evidence with its own motion for summary judgment.
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[22] Quirk’s assertion that Delaware needed to respond to his summary judgment
motion to re-designate the same evidence and to advance the same arguments
that were provided in Delaware’s original motion for summary judgment is not
supported by Reiswerg or any other law we found. See, e.g., Filip v. Block, 879
N.E.2d 1076, 1078 (Ind. 2008) (designation of evidence may happen in any of
several ways and once designated by one party, the opposing party need not
designate it again), reh’g denied; see also Flynn v. Klineman, 403 N.E.2d 1117,
1126 (Ind. Ct. App. 1980) (affirmative defense raised in pleadings was waived
when “not addressed by any material either supporting defendants’ motion for
summary judgment or in opposition to [plaintiff’s] cross-motion”).
[23] The documentation from the insurance company’s internal appeal procedure,
designated by Delaware with its motion for summary judgment, demonstrated
there was no genuine issue of material fact to support a claim of breach of
contract because Quirk never notified Delaware of his mental medical
condition. This failure during those proceedings is why his insurance claim was
denied. Delaware asserted its affirmative defenses in its answer and in its
motion for summary judgment, it designated evidence in its own motion for
summary judgment that Quirk had not provided information of his mental
medical condition during the claim and internal appeal process, and Quirk’s
own motion for summary judgment did not present evidence creating a genuine
issue of material fact that he had notified Delaware of his mental medical
condition during the claim and internal appeal process. Thus, Delaware was
entitled to summary judgment because there was no genuine issue of material
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fact it had not breached the contract when it denied Quirk’s claim. 9 See, e.g.,
Nikou v. INB Nat. Bank, 638 N.E.2d 448, 455 (Ind. Ct. App. 1994) (affirming
grant of summary judgment to defendant who had not filed response to
plaintiff’s cross-motion for summary judgment because defendant’s motion for
summary judgment “did designate sufficiently specific evidence to support its
argument that there were no genuine issues of material fact . . . and that it was
therefore entitled to judgment as a matter of law”).
Conclusion
[24] Although Delaware did not file a response to Quirk’s motion for summary
judgment, the trial court did not err in considering Delaware’s previously
designated evidence, and Delaware’s arguments based thereon, when it granted
summary judgment in favor of Delaware. Accordingly, we affirm.
[25] Affirmed.
Barnes, J., and Bradford, J., concur.
9
As Delaware had already demonstrated, via its motion for summary judgment, it was entitled to summary
judgment, the trial court’s request for and acceptance of subsequent briefing, if error, was harmless. See Ind.
Appellate Rule 66(A) (No error is ground for relief when it did not impact the substantial rights of a party.).
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