Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018 Page 1 of 18

ATTORNEYS FOR APPELLANT

Robert G. Zeigler

Erin E. Meyers

Zeigler, Cohen & Koch

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Robert W. York

Robert W. York & Associates

Indianapolis, Indiana

Christopher C. White

Addie L. Jones

Lewis Brisbois Bisgaard & Smith, 

LLP

Dallas, Texas

IN THE

COURT OF APPEALS OF INDIANA

Community Hospitals of 

Indiana, Inc.,

Appellant-Defendant,

v.

Aspen Insurance UK Limited

and Hiscox, LTD,

Appellees-Plaintiffs

October 19, 2018

Court of Appeals Case No.

18A-PL-69

Appeal from the Marion Superior 

Court

The Honorable James B. Osborn, 

Judge

Trial Court Cause No.

49D14-1204-PL-16336

May, Judge.

[1] Community Hospitals of Indiana, Inc. (“Community”) appeals the grant of 

partial summary judgment in favor of Aspen Insurance UK Limited (“Aspen”) 

and Hiscox, Ltd (“Hiscox”) (collectively, “Insurance Companies”) in which the 
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trial court determined the Insurance Companies’ claims fell outside the 

procedural and substantive provisions of the Indiana Medical Malpractice Act 

(“IMMA”). Because it determined the IMMA did not apply, the trial court 

concluded Community could not claim certain affirmative defenses available 

only under the IMMA. 

[2] Community presents three issues for our review, one of which we find 

dispositive: whether Insurance Companies are estopped from denying the 

IMMA applies to their claims. We reverse and remand.

Facts and Procedural History1

[3] On May 7, 2010, David Downey,2 a truck driver for Celadon Trucking 

Services, Inc. (“Celadon”), was involved in a multi-vehicle accident in Texas 

that resulted in the death of one driver and serious injury to that driver’s wife, 

who was in the passenger seat of the car. The deceased’s children, as well as his 

wife and estate, sued Celadon, and the parties settled out of court in Texas. 

Celadon, which is located in Indiana, is insured by Insurance Companies, and 

Insurance Companies paid the victims’ damages on behalf of Celadon.

[4] Prior to the accident, Celadon and Community, which is also located in 

Indiana, contracted for qualified Community employees to complete physical 

 

1 We held oral argument on this matter on July 31, 2018, in the Indiana Court of Appeals courtroom. We 

thank counsel for their able advocacy.

2 Downey passed away from unrelated causes in 2012.
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examinations of Celadon truck drivers based on Department of Transportation 

(“DOT”) requirements. Under the agreement, a qualified Community 

employee would determine whether a driver was medically able to drive, and 

then Community would communicate general information about that decision 

and any medical concerns observed to Celadon. The Community employee 

assigned to examine Downey was a nurse practitioner (“the NP”).

[5] On February 17, 2010, the NP conducted Downey’s annual DOT examination. 

She noted Downey suffered from various medical conditions, and she suspected 

he also had sleep apnea. The NP certified Downey to operate a commercial 

motor vehicle for six months but instructed Downey to undergo a sleep study 

and send the results to the NP. On February 22, Downey completed the sleep 

study and was diagnosed with severe obstructive sleep apnea (“OSA”) and 

prescribed a continuous positive airway pressure (“CPAP”) machine. The NP 

attempted to call Downey the same day, but she could not hear him when she 

reached him via telephone. The NP did not attempt to call Downey again, and 

Downey did not report his diagnosis to the NP. On April 16, 2010, Downey’s 

cardiologist sent Community a fax with the sleep study results and Downey’s 

prescription for the CPAP machine. On April 19, the NP declared Downey 

was safe to drive a commercial motor vehicle.3

 

 

3 It is unclear from the record why the NP was recertifying Downey in April, as she had just certified him to 

operate a commercial motor vehicle in February.
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[6] The accident in this case occurred May 17, 2010, when Downey drove his truck 

into a line of stopped cars. At the scene of the accident, Downey prepared a 

written statement admitting he was distracted by a wrecked truck on the side of 

the road and did not see the line of stopped cars until it was too late. (See

Appellant’s App. Vol. II at 151) (Downey’s account of the accident as part of 

his December 16, 2010, deposition). The victims of the accident sued Celadon 

and received a judgment of approximately $3 million. Aspen and Hiscox are 

Celadon’s insurance companies.

[7] On April 16, 2012, Aspen filed a proposed complaint with the Indiana 

Department of Insurance (“IDOI”) against Community, alleging 

[11.] . . . Community was negligent in failing to notify Celadon 

on April 16, 2010, or shortly thereafter, that Downey was 

suffering from a medical condition which precluded his ability to 

drive under FMCSA regulations. Had such results been 

conveyed, Celadon would have removed Downey from the 

operation of his vehicle and placed him on a safety hold pending 

successful treatment of his sleep apnea.

12. The failure to [sic] Community to exercise ordinary care 

proximately caused, in whole or in part, the injuries sustained [by 

the accident victims], as well as the other minor bodily injury 

claimants, which caused, in whole or in part, Celadon to incur 

over $3 million to resolve their claims.

(Id. at 41.) Aspen indicated in its proposed complaint to the IDOI that 

Community’s “physicians, nurse practitioners, nurses, wellness specialists, and 

administrative support/medical assistants . . . qualif[ied] as health care 
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providers under the Indiana Medical Malpractice Act.” (Id. at 23-4.) Aspen 

contemporaneously filed an action in Marion County Superior Court asserting 

the same facts and alleging Community4 committed negligence and breach of 

contract. In the complaint before the Marion County Superior Court, Aspen 

indicated Community’s “physicians, nurse practitioners, nurses, wellness 

specialists, and administrative support/medical assistants . . . qualif[ied] as 

health care providers under the Indiana Medical Malpractice Act.” (Id. at 16.)

[8] Insurance Companies5 filed an amended proposed complaint with the IDOI on 

May 25, 2012, and in that amended complaint stated the Community 

employees allegedly involved were health care providers under the IMMA. 

Insurance Companies filed an amended complaint with the Marion County 

Superior Court on May 30, 2012, and they again noted the Community 

employees in question were health care providers under the IMMA. 

[9] On April 29, 2015, the trial court, sua sponte, scheduled an Indiana Trial Rule 

41(E) hearing due to inactivity in the Marion County case. On May 6, 2015 the 

Insurance Companies filed an agreed motion to remove the Trial Rule 41(E) 

hearing from the docket stating Insurance Companies were “seeking damages 

for negligence and breach of contract arising from medical services or medically 

related services provided by [Community].” (Id. at 166.) In the motion, the 

 

4 At this time, Community was referred to only as “ABC Hospital.” (Appellant’s App Vol. II. at 15.)

5 Aspen added Hiscox as a plaintiff on May 25, 2012.
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Insurance Companies also explained they were awaiting the medical review 

panel’s decision. The trial court cancelled the hearing. The same process 

occurred on October 13, 2015, and September 14, 2016. 

[10] On October 21, 2016, the medical review panel of the IDOI issued its decision 

on the Insurance Companies’ complaint, concluding the “conduct complained 

of was not a factor in the resultant damages.” (Br. of Appellant at 9) (citing 

Appellant’s App. Vol II at 154).

6

 On January 17, 2017, the Insurance 

Companies filed a second amended complaint in the Marion County case, 

noting “[a]ll procedural requirements of Indiana Code section 34-18-8-4 have 

been completed and the Medical Review Panel has provided its Opinion.” 

(Appellant’s App. Vol. II at 44.) The Insurance Companies alleged:

On or about April 16, 2010, a facsimile was sent to and received 

by [Community] which contained Downey’s February 22, 2010 

sleep study. At that point, based on the nurse practitioner’s 

understanding of applicable DOT and/or FMCSA regulations, in 

conjunction with the results of the sleep study which diagnosed 

Downey as having uncontrolled sleep apnea, Downey would 

have been disqualified from operating a commercial motor 

vehicle. The results of the facsimile and accompanying sleep 

study were never conveyed to Celadon by [Community], and 

[Community] did not pull Downey’s certification to drive or tell 

him he could not operate his vehicle until he [was] successfully 

treated for sleep apnea. As found by the Medical Review Panel, 

[Community] failed to comply with the appropriate standard of 

 

6 Neither party cites to the decision from the medical review panel, and it seems that decision is not part of 

the record presented to us. This citation is to Community’s response to the Insurance Companies’ motion for 

summary judgment, which was filed on October 11, 2017.
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care with respect to the receipt and/or review of relevant health 

care information.

(Id. at 48.) Again, the Insurance Companies indicated the relevant Community 

employees qualified as health care providers under the IMMA. The Insurance 

Companies contended Community was negligent in not communicating to 

Celadon regarding Downey’s condition and, had they done so, Downey would 

not have caused the accident in Texas. Further, the Insurance Companies 

asserted a claim in breach of contract regarding the contract between Celadon 

and Community.

[11] On March 13, 2017, Community filed a response to the Insurance Companies’ 

second amended complaint. In its answer, Community certified it was a 

qualified health care provider “entitled to all rights, privileges, limitations, 

liability caps, defenses and immunities provided for [by the IMMA].” (Id. at 

70.) Community further asserted: “Claims of negligence and causation raised 

in [Plaintiffs’] Proposed Complaint before the Indiana Department of Insurance 

and considered by the Medical Review Panel are the sole claims upon which 

the subject matter jurisdiction have been granted . . .Additionally, any claim for 

breach of contract is subsumed under the malpractice.” (Id. at 70-1) (internal 

citations omitted) (errors in original). Finally, Community argued, as a defense 

to Insurance Companies’ negligence and breach of contract claims: “Plaintiffs 

are estopped to deny that the limitations of the Medical Malpractice Act, 

including the liability cap, apply to the plaintiff insurance companies.” (Id. at 

71.)
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[12] On September 11, 2017, the Insurance Companies filed a motion for summary 

judgment. The Insurance Companies’ motion for summary judgment asked the 

trial court to declare, as a matter of law, that Community’s affirmative defenses 

regarding the applicability of the IMMA were unavailable. In their brief in 

support of their motion for summary judgment, the Insurance Companies 

stated:

At its core, Plaintiffs allege that a non-medical employee of 

Community Hospital negligently failed to provide a facsimile 

transmission to a nurse practitioner so that she could take 

appropriate action and pull the DOT driving certification for 

David Downey, a Celadon driver diagnosed with sleep apnea. 

The administrative failure of Community Hospital’s staff to relay 

the information about the driver’s sleep apnea diagnosis to a 

medical provider who could take appropriate action or to 

Celadon was not a medical determination or exercise of medical 

judgment and thus, this Court should grant summary judgment 

on all of Defendant’s affirmative defenses related to the 

applicability of Indiana’s Medical Malpractice Act.

(Id. at 77.)

[13] On October 11, 2017, Community filed a response to the Insurance Companies’ 

motion for summary judgment, arguing the Insurance Companies were 

estopped from denying the applicability of the IMMA based on the doctrine of 

judicial estoppel; the Insurance Companies had forfeited their right to challenge 

the applicability of the IMMA because the Insurance Companies frequently 

asserted the IMMA governed of the issues before the court; and the IMMA 

applied to the Insurance Companies’ claims “because the acts or omission at 
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issue are based on the provider’s behavior or practices while acting in its 

professional capacity as a provider of medical services.” (Id. at 160.) The trial 

court held a hearing on the Insurance Companies’ motion for summary 

judgment on November 13, 2017. On January 1, 2018, the trial court entered 

an order granting the Insurance Companies’ motion for summary judgment, 

concluding:

[T]here is no genuine issue as to any material facts that the 

claims for negligence and breach of contract made by [Insurance 

Companies] against [Community] in [Insurance Companies’] 

January 20, 2017 Second Amended Complaint, fall outside the 

procedural and substantive provisions of the [IMMA], and that 

judgment should be entered for [Insurance Companies] and 

against [Community] on all of [Community’s] affirmative 

defenses seeking to invoke the procedural and substantive 

provisions of the [IMMA].

(Id. at 13-14.) The trial court also stated, “there is no just reason for delay and 

the Court expressly directs entry of judgment as to less than all the issues, 

claims or parties, as hereinabove set forth.”7

 (Id. at 14.)

Discussion and Decision

[14] We review summary judgment de novo, applying the same standard as the trial 

court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all 

 

7 This language certifies the order for appeal pursuant to Indiana Trial Rule 54(B), despite the fact it does not 

dispose of all claims between the parties.
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reasonable inferences in favor of the non-moving party, we will find summary 

judgment appropriate if the designated evidence shows there is no genuine issue 

as to any material fact and the moving party is entitled to judgment as a matter 

of law. Id. A fact is material if its resolution would affect the outcome of the 

case, and an issue is genuine if a trier of fact is required to resolve the parties’

differing accounts of the truth or if the undisputed material facts support 

conflicting reasonable inferences. Id.

[15] The initial burden is on the summary judgment movant to demonstrate there is 

no genuine issue of fact as to a determinative issue, at which point the burden 

shifts to the non-movant to come forward with evidence showing there is an 

issue for the trier of fact. Id. While the non-moving party has the burden on 

appeal of persuading us summary judgment was erroneous, we carefully assess 

the trial court’s decision to ensure the non-movant was not improperly denied 

his day in court. Id. Summary judgment is not a summary trial, and it is not 

appropriate just because the non-movant appears unlikely to prevail at trial. Id. 

at 1003-04. We “consciously err[ ] on the side of letting marginal cases proceed 

to trial on the merits, rather than risk short-circuiting meritorious claims.” Id. 

at 1004.

[16] We have previously outlined the purpose and general requirements of the

IMMA:

Our Supreme Court has explained that the [IMMA] was a 

legislative response to escalating problems in the malpractice 

insurance industry, with physicians being fearful of exposure to 
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malpractice claims and, further, being unable to obtain adequate 

malpractice insurance. Johnson v. St. Vincent Hospital, Inc., 273 

Ind. 374, 379-80, 404 N.E.2d 585, 589-90 (1980). 

* * * * *

The [IMMA] defines malpractice as “a tort or breach of contract 

based on health care or professional services that were provided, 

or that should have been provided, by a health care provider, to a 

patient.” Ind. Code § 34-18-2-18. Health care is “an act or 

treatment performed or furnished, or that should have been 

performed or furnished, by a health care provider for, to, or on 

behalf of a patient during the patient’s medical care, treatment, or 

confinement.” Ind. Code § 34-18-2-13. A “patient” is “an 

individual who receives or should have received health care from 

a health care provider, under a contract, express or implied, and 

includes a person having a claim of any kind, whether derivative 

or otherwise, as a result of alleged malpractice on the part of a 

health care provider.” Ind. Code § 34-18-2-22. The [IMMA] 

does not necessarily apply to all cases where a health care 

provider is a party. [Midtown Cmty. Mental Health Ctr. v. Estate of 

Gahl by Gahl,] 540 N.E.2d [1259, 1260 (Ind. Ct. App. 1989), 

trans. denied.] The [IMMA] covers “curative or salutary conduct 

of a health care provider acting within his or her professional 

capacity,” i.e., it must be undertaken in the interest of or for the 

benefit of the patient’s health. Collins v. Thakkar, 552 N.E.2d 507, 

510 (Ind. Ct. App. 1990), trans. denied. The [IMMA] does not 

apply to conduct unrelated to the promotion of a patient’s health 

or the provider’s exercise of professional expertise, skill, or 

judgment. Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 

185 (Ind. 2011) (emphasis added); Doe by Roe v. Madison Center 

Hosp., 652 N.E.2d 101, 103 (Ind. Ct. App. 1995), trans. dismissed.

When deciding whether a claim falls under the provisions of the 

[IMMA,] “we are guided by the substance of a claim to 
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determine the applicability of the Act.” Doe by Roe, 652 N.E.2d 

at 104. “[T]he test to determine whether a claim sounds in 

medical malpractice is ‘whether the claim is based on the 

provider’s behavior or practices while acting in his professional 

capacity as a provider of medical services.’” Madison Ctr., Inc. v. 

R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006) (quoting 

Collins, 552 N.E.2d at 511), trans. denied. We have observed that 

application of this test “has resulted in hairline distinctions 

between claims that sound in medical negligence and those that 

sound in ordinary negligence.” Anonymous Hospital [v. Doe], 996 

N.E.2d [329,] 333 [(Ind. Ct. App. 2013)] (citing Estate of O’Neal ex 

rel. Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr., 878 N.E.2d 

303, 311 (Ind. Ct. App. 2007))[, trans. denied]. Indeed, “‘[f]or 

more than thirty years, claimants and courts have wrestled with 

the question of what activities fall within the [IMMA.]’” Eads v. 

Cmty. Hosp., 932 N.E.2d 1239, 1244 (Ind. 2010) (quoting Judge 

Kirsch’s dissent). 

Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 727 (Ind. Ct. App. 2014), trans. 

denied. We have also noted, regarding the difference between medical and 

ordinary negligence claims:

A case sounds in ordinary negligence [rather than medical 

negligence] where the factual issues are capable of resolution by a 

jury without application of the standard of care prevalent in the 

local medical community. By contrast, a claim falls under the 

[IMMA] where there is a causal connection between the conduct 

complained of and the nature of the patient-health care provider 

relationship.

Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 2014).

[17] Here, Insurance Companies filed their claims with the IDOI and their claims in 

the trial court contemporaneously. The Insurance Companies then successfully 
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petitioned the trial court to hold in abeyance the claims before the trial court 

until the Medical Review Board issued its opinion regarding the Insurance 

Companies’ claims under the IMMA. Four years later, after receiving an 

unfavorable opinion from the IMMA, the Insurance Companies argued before 

the trial court that the IMMA no longer applied to the claims before the trial 

court and that Community should be precluded from relying on their 

affirmative defenses related to the IMMA. The trial court agreed and granted 

the Insurance Companies summary judgment on the request that Community 

be precluded from using affirmative defenses they asserted under the IMMA. 

Community asserts the trial court erred when it granted summary judgment. 

We agree with Community.

[18] We find our holding in West, 23 N.E.3d at 732, to be instructive. In West, 

Crystal West sustained significant permanent injuries after a co-worker, 

Michael, drove a vehicle into the elevated mechanical platform on which 

Crystal was standing. Crystal and her husband, William West, (“the Wests”) 

filed a complaint in St. Joseph County against certain healthcare providers of 

Michael, alleging the healthcare providers were negligent in treating Michael 

with narcotic pain medication for a cervical strain and releasing him to work. 

The Wests also filed a proposed claim under the IMMA with the IDOI. 

[19] The Wests alleged there was a breakdown in communication between a nurse 

and Michael, and between the same nurse and Michael’s doctor, who cleared 

Michael to return to work, not knowing he had been prescribed a narcotic pain 

reliever. The Wests then filed a motion for preliminary determination of law 
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with the St. Joseph County Court, asking the court to determine if the IMMA 

applied to their claims against Michael’s healthcare providers. The trial court 

denied the motion; however, in a footnote the trial court stated that, had it 

entered a preliminary determination of law, it “would have likely ruled that the 

proposed complaint sounds in medical malpractice and is covered by the 

[IMMA].” West, 23 N.E.3d at 720.

[20] A month later, the Wests filed a complaint for declaratory judgment in Marion 

County. In that action, the Wests named the healthcare providers’ insurance 

companies, the IDOI, and the Patients’ Compensation Fund as defendants. 

The Wests asked the Marion County Court to determine if the IMMA applied 

to their claims against the healthcare providers in St. Joseph County, as the 

clarification of applicable law “would affect not only how and where the case 

would be litigated but also which insurance policies and coverage would be 

available to the Wests should they ultimately be successful in their claims.” Id. 

[21] After denying the insurance companies’ motion to dismiss under Indiana Trial 

Rule 12(B)(8), the trial court considered the issue of whether the IMMA applied 

to the Wests’ claims in St. Joseph County. Following briefing and an oral 

argument, the Marion County Court decided the Wests’ claims were founded in 

common law negligence, rather than the IMMA, because there were no factual 

disputes regarding the dosage of narcotic pain medication given to Michael, 

Michael’s treatment, or the appropriateness of the warnings Michael was given, 

which were all issues that could have been decided by a medical review panel. 

The Marion County Court also held the Wests did not fit the IMMA’s
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definition of “patient” or “a person having a claim of any kind, derivative or 

otherwise.” Ind. Code § 34-18-2-22. The insurance companies appealed.

[22] As is relevant to this action, the insurance companies argued on appeal that the 

Wests were estopped from claiming the IMMA did not apply to their claims 

because the Wests had filed a proposed claim before the IDOI. Our court 

rejected that argument, noting: 

[T]he Wests simultaneously filed a complaint in the St. Joseph 

Circuit Court and with the IDOI, and they promptly sought a 

preliminary determination of law approximately two months 

after the filing the St. Joseph action, asking that court to find that 

their claims were not governed by the [IMMA.] They have 

consistently and thoroughly pursued that position throughout 

years of proceedings in multiple courts. We do not find that the 

Wests’ decision to simultaneously file complaints in the St. 

Joseph Circuit Court and the IDOI, likely done to avoid any 

potential statute of limitations issues, is problematic or that it 

thereby prevented them from pursuing a determination that the 

[IMMA] did not apply to their claims.

West, 23 N.E.3d at 732.

[23] Community argues West is distinguishable from the facts of the case before us 

because, while the Wests sought clarification from the beginning of all 

litigation, the Insurance Companies here waited until after the medical review 

panel rendered its decision contrary to the Insurance Companies’ interests 

before seeking clarification about whether the IMMA applied to the Insurance 

Companies’ claims. Further, Community contends, West is inapposite because 

despite the Insurance Companies’ reliance on its holding for the premise they 
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did not waive their ability to challenge the applicability of the IMMA, “the 

Insurance Companies consistently and repeatedly claimed to the trial court that 

the [IMMA] did apply[.]” (Br. of Appellant at 25) (emphasis in original). We 

agree.

[24] Unlike in West, the Insurance Companies repeatedly delayed the proceedings in 

trial court while waiting for an opinion from the Medical Review Board. At no 

time did the Insurance Companies file a request for declaratory judgment or 

indicate in any way that they did not believe the case to be under the purview of 

the IMMA.8

 In fact, the Insurance Companies repeatedly represented that their 

claim fell under the IMMA by indicating the relevant Community employees 

were health care providers under the IMMA. 

[25] In Manley v. Sherer, 992 N.E.2d 670, 674 (Ind. 2013), our Indiana Supreme 

Court confronted an issue very similar to the one at issue here. In Manley, the 

Manleys filed a proposed complaint with the IDOI against Dr. Sherer, who 

provided care to Kimberly Zehr, the driver in an accident in which Mrs. 

Manley sustained injury. Dr. Sherer subsequently filed a motion for 

preliminary determination of law and for summary judgment with the trial 

 

8 The Insurance Companies contend Community was well-aware of the Insurance Companies’ intent to 

challenge the applicability of the IMMA because the Insurance Companies “consistently alleged that they 

had been damaged in a sum not less than $3,250,000 - an amount clearly over the cap imposed by [IMMA].” 

(Br. of Appellees at 13.) However, as our Indiana Supreme Court noted in Eads, the amount of damages

requested is of no consequence because “[t]o the extent there is a difference . . . to the caps on medical 

malpractice recovery or other procedural differences in medical malpractice cases, these are matters of law 

that the Hospital is equipped to evaluate itself.” Eads v. Cmty. Hosp., 932 N.E.2d 1239, 1247 (Ind. 2010).
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court, in which Dr. Sherer alleged the Manleys’ proposed complaint before the 

IDOI was untimely because it was filed four days after the two-year statute of 

limitations under the IMMA. In response, the Manleys contended that their 

claim fell under the doctrine of continuing wrong, such that the two-year statute 

of limitations imposed by the IMMA did not apply. Manley v. Sherer, 960 

N.E.2d 815, 821 (Ind. Ct. App. 2011), vacated by Manley v. Sherer, 992 N.E.2d 

670, 674 (Ind. 2013). Our Indiana Supreme Court rejected this argument, 

holding:

We preliminarily reject the plaintiffs’ claim that their action 

against Dr. Sherer and his medical group is not governed by the 

Indiana Medical Malpractice Act. The plaintiffs have treated it 

otherwise by filing their proposed complaint with the 

Department of Insurance as required by the Act. They may not 

now contend that the Medical Malpractice Act and its time 

limitation do not apply to their claim.

Manley, 992 N.E.2d at 674. The same is true here. The Insurance Companies 

cannot now, after receiving a decision from the medical review board that does 

not comport with their trial strategy, claim the IMMA does not apply because

the issue is purely clerical. 

Conclusion

[26] The trial court erred when it granted summary judgment in favor of the 

Insurance Companies because, under Manley, they cannot proceed as if the 

IMMA applies to their claim and then disavow the IMMA when the Medical 
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Review Board renders an unfavorable decision. Like in West, the Insurance

Companies should have, and had ample time to, file a motion for declaratory 

judgment early in the proceedings if they believed the IMMA did not apply. 

Accordingly, we reverse and remand for proceedings consistent with this 

opinion.

[27] Reversed and remanded.

Riley, J. and Mathias, J., concur.