                                                                                       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

      Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018                       Page 1 of 14
      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.


      Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018                       Page 2 of 14
      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.

      Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018                   Page 3 of 14
[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.


      Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018      Page 4 of 14
[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.

      Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018                       Page 5 of 14
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.
Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018   Page 6 of 14
                        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.)


       Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018   Page 7 of 14
[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


       Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018   Page 8 of 14
       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).

       Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018                          Page 9 of 14
       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

       Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018   Page 10 of 14
       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


       Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018   Page 11 of 14
       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.




       Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018   Page 12 of 14
[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


       Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018   Page 13 of 14
       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.).

       Court of Appeals of Indiana | Opinion 18A02-1706-PL-1208 | January 8, 2018                         Page 14 of 14
