SARAH EVANS BARKER, District Judge.
This cause is before the Court on two motions for summary judgment: Plaintiff William Mills's Motion for Partial Summary
These motions for summary judgment arise out of a legal malpractice action, which in turn arises out of a personal injury claim. Plaintiff William Mills, the personal injury claimant, sued his former counsel, Defendant Hausmann-McNally S.C. ("Hausmann-McNally") for legal malpractice. Hausmann-McNally, in turn, has asserted as an affirmative defense to the malpractice claim that a non-party—namely Plaintiff's present counsel, Price Waicukauski & Riley, LLC ("PWR")—is responsible in whole or in part for any legal malpractice that Hausmann-McNally may have committed. See Docket No. 9 at 6.
Larry Mills was injured in a traffic accident on October 10, 2008 when his motorcycle was struck by another vehicle at an intersection on State Road 37 in rural Lawrence County, Indiana. Compl. ¶¶ 5-6.
Shortly after agreeing to represent Plaintiff, Hausmann-McNally contacted Farm Bureau Insurance, Ms. Nelson's personal automobile insurer. On November 6, 2008, Farm Bureau sent Hausmann-McNally copies of Ms. Nelson's insurance policy and a declarations page. The declarations page stated that Nelson's vehicle "is driven to and from work 150 miles or
Because his damages exceeded the settlement amount, Mr. Mills expressed interest in the possibility of recovering from other entities, such as the manufacturer of his motorcycle helmet and the state agencies responsible for designing the intersection where the accident occurred. To facilitate this expansion of the scope of the case, Mr. Mills retained PWR on October 19, 2009. Docket No. 63 at 3, ¶ 12; Docket No. 45 at 8-9. The parties differ in their recounting of the scope of PWR's representation. According to Hausmann-McNally, PWR took on the role of lead counsel for all of Mr. Mills's potential claims. Docket No. 30 at 4 ("PWR served as lead counsel in the litigation"). PWR, in contrast, asserts that it was retained only to pursue the new causes of action, and that it had no role in the original claim against Ms. Nelson. Docket No. 45 at 8-10.
The parties also differ in how they explain what happened next. It is undisputed that Hausmann-McNally, at least nominally, remained on as co-counsel after Plaintiff hired PWR. It is also undisputed that PWR filed complaints against Hannah Nelson and others on Plaintiff's behalf. PWR attorneys William Riley and Joseph Williams filed a complaint in Marion County Superior Court on April 21, 2010, alleging negligence against Hannah Nelson and products liability against the helmet manufacturer. Docket No. 31, Ex. C. Two days later, the same PWR attorneys filed an amended complaint on Plaintiff's behalf, adding an additional count against the helmet manufacturers. Docket No. 31, Ex. D. Finally, on July 14, 2010, PWR filed a second amended complaint on Plaintiff's behalf, adding a fourth count against Lawrence County and INDOT for negligence in designing and constructing the intersection where the crash occurred. Docket No. 31, Ex. E. As in the two previous iterations of the Marion County Superior Court complaint, the count against Hannah Nelson alleges negligence only in her personal capacity; it does not mention her employer at all, let alone the fact that her employer was a state agency. Id. at 3.
What is disputed is why Plaintiff, by counsel, filed these personal injury complaints in state court. In PWR's telling, PWR discovered—in the course of preparing for its products liability suit against the helmet manufacturer—that the March 2009 $50,000 settlement check from Ms. Nelson's insurer was not actually in Hausmann-McNally's possession; it also learned around the same time that photographs of the scene crucial to the products liability claim were in Farm Bureau's possession. Docket No. 45 at 12. PWR explains that it named Ms. Nelson as a Defendant in order to enforce the earlier settlement agreement and to obtain an agreement from Farm Bureau to produce
Hausmann-McNally remembers differently. According to its account, "there was significant confusion about the status of the Hannah Nelson claim well after PWR entered the case, and ample evidence to support the inference that the claim had not yet been settled. . . ." Docket No. 47 at 5. In sum, Hausmann-McNally asserts that PWR, as the new lead counsel for Plaintiff, filed suit against Ms. Nelson not as an afterthought, but so that it could, for the first time, secure payment up to the policy limit from Ms. Nelson's insurer. Id. at 4-6.
In either event, Ms. Nelson's counsel quickly reached a settlement agreement with Plaintiff, but the products liability suit proceeded. In the course of discovery on that claim, PWR, acting on Plaintiff's behalf, deposed Hannah Nelson as a witness on September 18, 2012. Docket No. 45 at 13-14. During this deposition, Ms. Nelson revealed that she was acting within the course and scope of her employment with the Hoosier Uplands Development Corporation ("Hoosier Uplands") at the time of the accident. Docket No. 31, Ex. F. Hoosier Uplands is a "Community Action Agency," and is therefore considered a "political subdivision" of the State of Indiana for the purposes of the Indiana Tort Claims Act. Ind.Code § 34-13-3-8. Under Indiana law, a prospective plaintiff intending to sue a political subdivision of the state for damages must provide written notice to the defendant agency outlining the nature of the claim and damages within 180 days of the injury. See Ind. Code § 34-13-3-8(a). If a prospective plaintiff fails to provide this notice, he is permanently barred from bringing the claim. Id. As of September 18, 2012, when Ms. Nelson was deposed and PWR discovered that the procedural bar applied, the 180-day notice period for any claim by Plaintiff against the state agency had long since run. For the accident occurring in October 2008, notice would have been required by April 2009—some six months before PWR was retained in October 2009.
After deposing Ms. Nelson, an attorney with PWR contacted Mr. Tucker—Plaintiff's primary counsel with Hausmann-McNally—and informed him that since the car accident had been caused by a state agency employee acting within the scope of employment, the 180-day notice period applied. Id. at ¶ 21. According to PWR, Mr. Tucker responded: "Your case just got easier. You have a client to call, and you need to sue us for malpractice." Id. at ¶ 22. Shortly after this deposition, Hausmann-McNally withdrew as Plaintiff's co-counsel; on October 16, 2012, the Marion County Superior Court granted Hausmann-McNally's motion to withdraw in the pending personal injury suit before that court. Docket No. 38 at 14.
Plaintiff subsequently made demand on Hausmann-McNally for its alleged malpractice in allowing the 180-day notice deadline to lapse, thus denying Plaintiff any prospect of recovery from the Hoosier
The Court dismissed Defendant's third-party complaint against PWR for indemnification and contribution in an order dated January 14, 2014. Docket No. 69, 2014 WL 129276. The Court also dismissed Defendant's motion to disqualify counsel the same day. Docket No. 70, 992 F.Supp.2d 885 (S.D.Ind.2014). Plaintiff moved for partial summary judgment on Defendant's first affirmative defense on September 19, 2013, see Docket No. 44, and Defendant filed its cross motion for partial summary judgment on the same issue on December 9, 2013, see Docket No. 62.
The Federal Rules of Civil Procedure provides that summary judgment should be granted when the record evidence shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. See id. at 255, 106 S.Ct. 2505. However, neither the "mere existence of some alleged factual dispute between the parties," id., 477 U.S. at 247, 106 S.Ct. 2505, nor the existence of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir.2000).
The cross motions for summary judgment that are before us concern Defendant's first affirmative defense to Plaintiff's legal malpractice claim, which asserts that "a nonparty, PWR, is at fault, in whole, or in part, for the damages as claimed by the Plaintiff." Docket No. 9 at 6, ¶ 1. In support of this defense, Defendant makes four interrelated arguments: (1) that the six-month ITCA notice deadline did not lapse in April 2009 because Hoosier Uplands would have been estopped from asserting it as a bar to suit, (2) PWR did not represent Plaintiff in a limited capacity when it joined the case in
Unless Defendant can show that the ITCA's notice requirement did not bar any suit against Hoosier Uplands initiated more than six months after the injury took place, it cannot prevail on its affirmative defense, and its other arguments are immaterial and unavailing. The collision in which Larry Mills was injured occurred on October 10, 2008; Plaintiff did not retain PWR until approximately a year later, in October 2009. See Docket No. 63 at 2-3. If compliance with the ITCA's notice provision was not excused, then the six month deadline expired while Hausmann-McNally—and only Hausmann-McNally—served as Plaintiff's counsel and owed Plaintiff a duty of care. Because we conclude that the notice deadline would have time-barred any suit against Hoosier Uplands filed after April 2009, Defendant's first affirmative defense fails as a matter of law.
The Indiana Tort Claims Act (ITCA) provides that "a claim against a political subdivision is barred unless notice is filed . . . within one hundred eighty (180) days after the loss occurs." Ind. Code § 34-13-3-8(a). A "loss" is deemed to occur from the moment when the plaintiff knew, or should have known, "that an injury had been sustained as a result of the tortious act of another." Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind.Ct.App. 2012) (quoting Reed v. City of Evansville, 956 N.E.2d 684, 691 (Ind.Ct.App.2011)). The purpose of the Act's notice provision is to afford municipal authorities the opportunity to investigate the facts surrounding an accident while the facts are still fresh and available. See Johnson v. Consol. Rail Corp., 565 F.Supp. 1025, 1027 (N.D.Ind.1983). It is indisputable here that Plaintiff's loss occurred on October 10, 2008. Docket No. 45 at 5; Docket No. 63 at 2, ¶ 1. Defendant concedes that it did not file notice of a claim against Hoosier Uplands within 180 days of the accident's occurrence.
In its decision last year in Schoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013), the Indiana Supreme Court recognized that equitable estoppel may prevent a state entity from relying on the ITCA's notice requirement as a defense to a tort claim. For a plaintiff to claim equitable estoppel, however, he must show his: "(1) lack of knowledge and of the means of knowledge as to the facts in question, (2) reliance upon the conduct of the party estopped, and (3) action based thereon of such a character as to change his position prejudicially." Schoettmer, 992 N.E.2d at 709 (quoting Story Bed & Breakfast LLP
The facts of Schoettmer help illustrate when equitable estoppel may apply to an ITCA notice defense. The plaintiff, John Schoettmer, was injured in an auto accident by the defendant, who was an employee of South Central Community Action Program ("South Central"), a governmental entity subject to the ITCA. 992 N.E.2d at 704-705. Both parties conceded that the defendant was acting in the scope of her employment, and the plaintiff was aware from the earliest stages of the litigation that the defendant worked for the South Central Community Action Program
We conclude that Defendant has failed to demonstrate that equitable estoppel would have barred an ITCA defense to a suit filed after April 2009. It has demonstrated neither that it lacked "knowledge or the means of knowledge" that Hannah
Defendant argues that it was excusably unaware of Nelson's status as a state agency employee "because there was nothing to suggest that she had such employment." Docket No. 58 at 17. According to Defendant, Nelson never told Plaintiff or the investigating police officer at the scene that she was driving in the scope of her employment or that her employment was with a state agency. Docket No. 63 at 2, ¶ 4. The police officer's crash report, filled out the day of the accident, showed that Nelson was the owner of the vehicle and listed her personal insurer. Docket No. 31, Ex. A. Plaintiff retained Hausmann-McNally 10 days after the accident, and the firm sent a letter to Nelson's insurer on October 22, 2008—two days after being retained—seeking information on her insurance policy. Pl.'s Ex. 12. Nelson's insurer responded on November 6, 2008; the response included a "declaration" stating that "[t]his vehicle is driven to and from work 150 miles or less each week." Pl.'s Ex. 7 at 5. Hausmann-McNally made a settlement demand of Nelson's insurer on February 2, 2009, seeking repayment in the amount of Nelson's policy limit of $50,000. Pl.'s Ex. 9. The firm's case notes show that this initial contact with Nelson's insurer was the only time in the six months after the accident that Hausmann-McNally attempted to get in touch with Nelson, her insurer, or employer; Defendant has designated no evidence indicating that anyone with Hausmann-McNally ever inquired about Nelson's employment status. See Pl.'s Ex. 8.
We can assume that Hausmann-McNally lacked actual knowledge that Nelson worked for a state agency; Defendant falls short, however, of establishing that the firm lacked "means of knowledge." See Story Bed & Breakfast, 819 N.E.2d at 67. The plaintiff in Schoettmer acted without the assistance of counsel; though he knew who the defendant worked for, he did not know that that employer was a governmental agency subject to the ITCA. Schoettmer, 992 N.E.2d at 705. Here, by contrast, Plaintiff was represented by a law firm for nearly the entire period before the 180-day notice period lapsed. See Pl.'s Ex. 8. Hausmann-McNally knew that Nelson used her car to drive to and from work; perhaps more significantly, it knew that its client's injuries far exceeded Nelson's personal policy limits. Under these circumstances, no reasonable fact-finder could determine that the firm lacked the means even to discover the name of Nelson's employer. Cf. Terra Nova Dairy, LLC v. Wabash Cnty. Bd. of Zoning Appeals, 890 N.E.2d 98, 105 (Ind.Ct.App.
Indiana's courts have "been hesitant to allow an estoppel in those cases where the party claiming to have been ignorant of the facts had access to the correct information." Story Bed & Breakfast, 819 N.E.2d at 67 (emphasis added); Cablevision of Chi. v. Colby Cable Corp., 417 N.E.2d 348, 355 (Ind.Ct.App.1981). "Where each party has equal knowledge, or means of knowledge, of all the facts, there is no estoppel." Terra Nova Dairy, 890 N.E.2d at 105 (quoting N. Ind. Pub. Serv. Co. v. Stokes, 595 N.E.2d 275, 279 (Ind.Ct.App.1992)). See also City of Crown Point, 510 N.E.2d at 687 ("Estoppel cannot be applied if the facts are equally known by or accessible to both parties"). Defendant has not demonstrated that this is a case triggering the equitable doctrine's protective concern for those who have been misled and cannot reasonably be expected to discover the facts for themselves.
Equitable estoppel is a bulwark for fundamental fairness against intentional deception; it applies if "one party, through its representations or course of conduct, knowingly misleads or induces another party to believe and act upon his or her conduct in good faith and without knowledge of the facts." See Purdue Univ. v. Wartell, 5 N.E.3d 797, 807 (Ind.Ct.App. 2014); American Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224, 234 (Ind.Ct.App. 2004) (further citations omitted).
Defendant contends that it can show justifiable reliance because "[Nelson], who was acting as a representative of Hoosier Uplands, provided no information to suggest that she was a government employee. Undoubtedly, H-M relied upon the nature of Brooking's representations to the investigating officer in making the conscious decision to file notices of tort claim against a variety of governmental entities but not against Hoosier Uplands." Docket No. 58 at 18. But Defendant has pointed to no evidence that Nelson, or Hoosier Uplands or its other agents, made any intentional misrepresentations upon which Mills and his counsel Hausmann-McNally relied to their detriment. The only representation of any kind made by Nelson of which we have a record is the police crash report that presumably reflects statements to a police officer; Defendant
There are two representations within the report on which Defendant asserts it relied. First, Nelson supplied her personal insurance information. Docket No. 31, Ex. A at 3. Second, in the blank marked "Vehicle Use," the officer typed: "PERSONAL (FARM, COMPANY)."
Defendant has presented no affirmative evidence that it relied to its detriment on Nelson's representations—such as they were. Rather, it points to the fact that it did file timely notices of tort claims against other state entities and asks us to assume that it would have done likewise for a claim against Hoosier Uplands had it
[Tucker]: I think that's one of the things they should have known, yes. Tucker Dep. 160-164. As the tenor of his testimony might indicate, Tucker denied that he was the "file handler" responsible for the failure to look into Nelson's employment status in a timely manner. Instead, he asserted that Christopher Moeller, a more junior attorney with Hausmann-McNally, had had day-to-day responsibility for Mills's personal injury case. Id. at 132-133. For his part, Moeller points the finger back at Tucker, declaring that "Mr. Tucker [held] primary responsibility for the handling of Mr. Mills's injury case. I assisted Mr. Tucker in some limited capacity with client contact." Moeller Decl. ¶ 5. Neither attorney stated that the firm failed to discover Nelson's employment status because it had been misled by her or her insurer.
Regardless of whether Hausmann-McNally failed to submit timely notice under the ITCA because it believed in good faith that Nelson was not an employee or a state agency, or because its attorneys simply failed to inquire into the question diligently, Defendant has offered no evidence consistent with the notion that it failed to act in reliance on misrepresentations offered by the state entity or its agents.
While Defendant does not expressly challenge the applicability of the equitable estoppel framework we have applied above, its principal counterargument is that the Court should look to the results of two decisions—Gregor v. Szarmach, 706 N.E.2d 240 (Ind.Ct.App.1999), and Baker v. Schafer, 922 F.Supp. 171 (S.D.Ind. 1996)—as decisive here. In Gregor, the Indiana Court of Appeals ruled that an individual defendant in an auto-accident personal injury suit could not assert the plaintiff's failure to comply with the ITCA as an affirmative defense where neither the defendant's clothing nor his vehicle indicated he was a government employee, he provided his personal insurance information, and he made no representations at the scene disclosing his status. 706 N.E.2d at 243. In reaching this result, Gregor relied heavily on the Southern District of Indiana's decision in Baker, which had held that "a government employee in the course of his duties who acts in a way disguising his status as such may not enjoy the benefits of that status under the ITCA if the plaintiff actually and reasonably lacks knowledge of the status." Baker, 922 F.Supp. at 174.
Gregor and Baker undoubtedly bear a distinct factual resemblance to the case before us. We nonetheless conclude that their holdings are not as persuasive here as the circumstantial similarities would suggest, for two reasons. First, both were teed up in a way that rendered their equitable balance different from this case. In both Baker and Gregor, the plaintiff had sued the individual responsible for an auto accident, who then claimed that the ITCA notice provision protected him from personal liability. The Baker court noted that such a result would be "unjust," and it declined to "provide [the defendant] any relief" by virtue of the ITCA.
Second, neither Gregor nor Baker applied the three-pronged Indiana standard for equitable estoppel—one that was reaffirmed most recently by Schoettmer and has a lengthy pedigree in the courts of the state. See Story Bed & Breakfast, 819 N.E.2d at 67; City of Crown Point, 510 N.E.2d at 687; Damler v. Baine, 114 Ind.App. 534, 51 N.E.2d 885, 889 (1943). Both decisions mentioned the term "estoppel," but neither set forth a definition by which they understood the term. Gregor approached the closer of the two to announcing a standard—that estoppel may apply if a state employee "acts in a manner which disguises or fails to reveal his status" and "the plaintiff actually and reasonably lacks knowledge." 706 N.E.2d at 243. This is not, however, equivalent to the more rigorous three-part standard that Schoettmer declared necessary for satisfying the elements of equitable estoppel, and both Baker and Gregor make clear that their results were dictated by a more holistic approach to the equitable question. The late Judge Dillin of this Court, who authored the language of Baker upon which Gregor later relied so heavily, forthrightly disclosed the inchoate grounds of his reasoning: "[W]e think that such ignorance in this case can prevent the use of the ITCA as a bar to this suit. Whether we characterize this as some kind of waiver or estoppel conclusion or as a special exception to the ITCA is not overly important." 922 F.Supp. at 173 (emphasis added).
Here, the keystone of Defendant's first affirmative defense is its assertion that the ITCA's 180-day notice deadline did not apply because estoppel would have barred Hoosier Uplands from relying on the statutory provision. See Docket No. 63 at 9. The Indiana Supreme Court has stated, in a decision issued last year, that "the party claiming equitable estoppel must" satisfy the three-part standard we have applied above, Schoettmer, 992 N.E.2d at 709 (emphasis added); in doing so, it never mentioned either Gregor or Baker, despite those decisions' strongly analogous facts. Where faced with two strands of precedent that differ in both posture and governing standard, we feel compelled to confine our treatment of the issue to the bounds established by the Indiana Supreme Court, which has spoken more specifically and recently on the issue and whose interpretations of state law we treat as authoritative.
In addition to its principal argument for estoppel, Defendant's response to Plaintiff's summary judgment motion presents a cursory argument that the ITCA's 180-day notice deadline "may" not have elapsed in April 2009 because Larry Mills was legally
Defendant's argument is, to understate matters, unconvincing. It presents no factual evidence at all (its incomprehensible parenthetical citation notwithstanding), and the only authority it cites is an Indiana Code provision relating to statutes of limitations, not the ITCA notice period. See Docket No. 19 at 18 (citing Ind.Code § 34-11-6-1). A "nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support." See, e.g., Sink v. Knox Cnty. Hosp., 900 F.Supp. 1065, 1073 (S.D.Ind. 1995) (citing Cliff v. Bd. of Sch. Comm'rs of City of Indianapolis, 42 F.3d 403, 408 (7th Cir.1994)). Defendant has provided us no evidence in support of his claim that Mills was legally incompetent for any period long enough that it could have bolstered its claim that PWR shares responsibility for failing to meet the ITCA notice deadline. Indeed, Hausmann-McNally's own case notes reflect that Mills, after suffering severe injuries as a result of the accident, had regained his faculties and was capable of conversing on the phone with Hausmann-McNally attorneys by January 2009—still well more than six months before PWR became involved in the matter. Pl.'s Ex. 8 at 11-12 ("Spoke w/[client]. Larry said he is feeling much better."). Because it is entirely without legal or factual support, Defendant's argument regarding Mills's "incompetence" or "disability" is unavailing.
Defendant makes another, more subtle, contention in opposition to Plaintiff's motion for summary judgment. It suggests:
Docket No. 58 at 14-15 (emphasis added). We do not necessarily disagree with any of Defendant's assertions. But Defendant is getting ahead of itself. The language we have excerpted above is an argument that Hausmann-McNally should not be held liable for legal malpractice, rather than an objection to the applicability of the ITCA's notice bar. The standards governing equitable estoppel and attorney negligence in this context are not precise mirror images, though they inevitably resonate with one another to some extent. We have concluded that the ITCA would have barred any suit against Hoosier Uplands for which notice was not provided within 180 days of
Plaintiff's burden here is straightforward. He need point only to the statutory command that notice of tort suits against state entities must be brought within 180 days of loss; he has done that, and thus has made out a prima facie case that PWR as a non-party cannot share in any malpractice liability. Defendant's burden is heavier. Hausmann-McNally bears the burden not only of establishing the elements of its affirmative defense as a general matter, see Huber v. Henley, 656 F.Supp. 508, 511 (S.D.Ind.1987) (noting that "the burden of proof of a nonparty defense is on the defendant"), but also of proving that estoppel could override the ITCA's notice provision, and that "clear evidence" warrants an exception to the general rule that equitable estoppel will not be applied against government entities. See Story Bed & Breakfast, 819 N.E.2d at 67 ("The State will not be estopped in the absence of clear evidence that its agents made representations upon which the party asserting estoppel relied."). Defendant has not met this burden; its failure to create a factual issue with respect to its failure to meet the ITCA notice deadline forecloses its first affirmative defense as a matter of law.
This Order does not mark the first time we have touched upon the central issue raised in Defendant's first affirmative defense. In fact, it is the third. In our order dismissing Defendant's third party claims, we observed:
Docket No. 69 at 13. On the same day, we dismissed Defendant's motion to disqualify counsel, discussing in some detail the standard for equitable estoppel enunciated in Schoettmer v. Wright, and we reasoned:
Docket No. 70, 992 F.Supp.2d at 893 (citations omitted).
In both prior rulings, our discussion of Defendant's equitable estoppel claim was intertwined to some degree with our resolution of other issues, and we never addressed the question squarely. We do so now, and we conclude that equitable estoppel would not have overridden the ITCA notice period, which in this case lapsed in April 2009. As we have previously discussed and Defendant concedes, PWR—which became involved only in October 2009—cannot have owed Plaintiff a duty of care with respect to a time-barred claim against a state agency. Our resolution of Defendant's estoppel claim thus renders its other arguments regarding the scope of PWR's representation immaterial, since PWR could have committed the malpractice in question "only if it was possible for PWR to have made a claim against [Nelson]. . . after the passage of 180 days." Docket No. 58 (Def.'s Resp.) at 2.
For the foregoing reasons, we GRANT Plaintiff's motion for partial summary judgment on Defendant's first affirmative defense, and we DENY Defendant's motion for partial summary judgment on the same claim.
IT IS SO ORDERED.
Docket No. 63 at 2. We have ruled against Defendant on the second "issue" it lists above, which thus compels our determination that PWR did not owe Larry Mills and the Plaintiff a duty of reasonable with respect to a possible suit against Hannah Nelson's employer. We have not expressly ruled on the first and third issues Defendant presents above, because they are rendered irrelevant to our disposition of this motion.
