WellPoint, Inc. (f/k/a Anthem, Inc.) and Anthem Insurance Companies, Inc., Appellants (Plaintiffs),
National Union Fire Insurance Company of Pittsburgh, PA, AIG Europe (U.K.) Limited, New Hampshire Insurance Company, Continental Casualty Company, Arrowood Indemnity Company, Twin City Fire Insurance Company, Liberty Mutual Insurance Company (U.K.) Limited, and Certain Underwriters at Lloyds, Appellees (Defendants).
Appeal from the Marion Superior Court, No. 49D10-0507-PL-26425 The Honorable David J. Dreyer, Judge
Attorneys for Appellants Robert D. MacGill Charles P. Edwards Christian P. Jones Mark D. Crandley Barnes & Thornburg LLP Indianapolis, Indiana Dan J. Hofmeister, Jr. Kevin D. Tessier Reed Smith LLP Chicago, Illinois Attorneys for Amici Curiae see addendum
Attorneys for Appellee Continental Casualty Company Stephen J. Peters David I. Rubin Plunkett Cooney, P.C. Indianapolis, Indiana Michael M. Marick Rebecca R. Haller Meckler Bulger Tilson Marick & Pearson LLP Chicago, Illinois
Attorneys for Appellee Twin City Fire Insurance Company James W. Riley, Jr. Riley Bennett & Egloff, LLP Indianapolis, Indiana John E. Black, Jr. Peter F. Lovato Skarzynski Black LLC Chicago, Illinois Mark E. Haddad Jonathan F. Cohn Sidley Austin LLP Washington, DC
ON PETITION FOR REHEARING
Appellees Continental Casualty Company and Twin City Fire Insurance Co. (collectively "CNA"), have petitioned for rehearing with respect to our opinion in this matter, Wellpoint, Inc. v. Nat'l Union Fire Ins. Co., 29 N.E.3d 716 (Ind. 2015). The petition asserts a single claim-that a portion of our opinion exceeds the power granted by Trial Rule 56(B), which states that "[w]hen any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party." T.R. 56(B) (emphasis added). CNA does not challenge our reversal of the trial court's grant of its motion for summary judgment, but argues that our opinion should not have also granted summary judgment for Anthem as to issues not raised by CNA's summary judgment motion. CNA seeks modification of the fifth paragraph of our opinion to clarify that its summary judgment motion "raised only certain issues of law prior to the close of discovery, " Pet. for Reh'g at 13, and revision of our concluding language that could be read to foreclose defenses not raised in the summary judgment proceedings. Appellants Wellpoint, Inc. and Anthem Insurance Companies, Inc. (collectively "Anthem") respond that summary judgment in Anthem's favor is proper and further that CNA has waived any additional affirmative defenses.
We agree Trial Rule 56(B) limits our authority to grant summary judgment for Anthem to the issues raised in CNA's motion. Before the trial court, CNA requested summary judgment in its favor on certain enumerated counts/claims for the reasons set forth in its supporting memorandum. Relevant text from CNA's motion and supporting memorandum is as follows:
Pursuant to T.R. 56, Defendant [CNA] hereby moves for summary judgment in its favor and against Plaintiffs WellPoint, Inc. . . . and Anthem Insurance Companies ["Anthem"] on Counts II, III, IV, and V (incorrectly designated as Count IV) of Anthem's Second Amended Complaint for Declaratory Judgment and Damages ("Second Amended Complaint").
Motion for Summary Judgment, Appellants' App'x at 610 (emphasis added).
WHEREFORE, for the reasons set forth in [CNA's] supporting Memorandum, [CNA] respectfully requests that this Court enter final judgment in [CNA's] favor on all claims alleged in Anthem's Second Amended Complaint as follows:
(1) denying Anthem's claim for declaratory relief under Count II;
(2) denying Anthem's claim for breach of contract under Count III;
(3) denying Anthem's claim for bad faith under Count IV; and
(4) denying Anthem's claim for punitive damages ...