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Shannon v. Shannon

United States District Court, S.D. Indiana, Indianapolis Division

September 11, 2014

MARK A. SHANNON, Plaintiff,



This matter comes before the Court on Defendant Progressive Direct Insurance Company's ("Progressive") Renewed Motion to Dismiss, (Filing No. 43). Progressive moves this Court to dismiss the Plaintiff's Second Amended Complaint, (Filing No. 39), pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

On August 10, 2012, Plaintiff Mark A. Shannon ("Mr. Shannon") commenced a pro se action against Dione Shannon and Progressive and, on October 9, 2013, submitted with the Court's approval, (see Filing No. 34, at ECF p. 2), a Second Amended Complaint alleging several tort and breach of contract claims against both Dione Shannon and Progressive under various theories of liability. (See Filing No. 39, at ECF pp. 4-7).

Progressive argues in the motion before the Court that 1) direct actions against insurers are not allowed under Indiana law, and 2) the allegations contained within the second amended complaint do not allow for a proper responsive pleading, in violation of Trial Rule 12(e). For the reasons below, the Renewed Motion to Dismiss is GRANTED.


On or about September 14, 2010, Mr. Shannon, a resident of Indiana, was a passenger in a 1989 Cadillac Sedan Deville driven by Dione Shannon in Terre Haute, Indiana. In an attempt to avoid a collision with an on-coming vehicle, Dione Shannon collided backwards into a steel pole in a parking lot. Mr. Shannon's injuries from the accident prevented him from returning to work for several weeks. (Filing No. 39, at ECF pp. 2-3). On August 10, 2012, Mr. Shannon, pro se, brought claims against the driver of the vehicle, Dione Shannon, and her insurance provider, Progressive.

On January 1, 2013, Mr. Shannon additionally filed a Supplemental Complaint, (Filing No. 12), asserting both that Dione Shannon's negligent operation of a motor vehicle caused him physical injuries and that Progressive, as Dione Shannon's automobile insurer, was liable for the damages under the theories of "respondeat superior, " the "Restatement (Second) of Agency, " and a duty of care presented by a "Contract Policy' Agreement." (See Filing No. 12, at ECF p. 4). Additionally, the Supplemental Complaint contends that Progressive committed acts of "unreasonable lack of skills of fidelity in professional or fiduciary duties, " and of "negligence, malpractice and malice in law." (See Filing No. 12, at ECF p. 5).

In response, Progressive filed a Motion to Dismiss and/or Motion for More Definite Statement on January 22, 2013 (Filing No. 15). On August 6, 2013, Progressive renewed the motion, (Filing No. 27), and the Court, denying in part and granting in part, allowed Mr. Shannon fourteen (14) days to file a second amended complaint that included 1) factual allegations supporting his claim against Progressive, and 2) a jurisdictional statement supporting venue (Filing No. 34, at ECF p. 2).

Mr. Shannon followed the Court's order and filed the Second Amended Complaint ("amended complaint") on October 9, 2013, (Filing No. 39), which included, inter alia, a jurisdictional statement, a statement of facts, and additional claims against Progressive for acts of "negligence, " "[m]alpractice, " "bad faith, " breach of contract, and "negligence." Compare (Filing No. 1), with (Filing No. 39, at ECF pp. 2-6). Progressive followed this, on October 21, 2013, by renewing the motion to dismiss presently before the Court, arguing that the amended complaint was a mere recital of Mr. Shannon's supplemental complaint. (See Filing No. 43, at ECF p. 1). On December 4, 2013, Mr. Shannon responded by filing a Reply [sic] to Defendant's Renewed Motion to Dismiss, (Filing No. 46), to which Progressive replied on December 12, 2013 (Filing No. 47). Additional facts will be added as necessary.


Although titled a Motion to Dismiss, Progressive's motion is properly considered a motion for judgment on the pleadings. Federal Rule of Civil Procedure 12(c) permits a party to move for judgment after the parties have filed the complaint and answer. Rule 12(c) motions are reviewed under the same standard as a motion to dismiss under 12(b)(6). Frey v. Bank One, 91 F.3d 45, 46 (7th Cir. 1996). When reviewing a 12(b)(6) motion, the Court takes all well-pleaded allegations in the complaint as true and draws all inferences in favor of the plaintiff. Bielanski v. Cnty. of Kane, 550 F.3d 632, 633 (7th Cir. 2008) (citations omitted). However, the allegations must "give the defendant fair notice of what the... claim is and the grounds upon which it rests" and the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Stated differently, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citations omitted). To be facially plausible, the complaint must allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court, though, is not required to accept the plaintiff's legal conclusions in its complaint as true. Id.


In the renewed motion to dismiss, Progressive argues that Mr. Shannon has brought, as evidenced in the amended complaint, a direct action against an insurance provider. (See Filing No. 43, at ECF p. 2). Alternatively, Progressive asserts that Mr. Shannon has failed to comply with the Court's order to file a more definite statement. (See Filing No. 43, at ECF p. 3).

The Court finds both of these arguments persuasive. Notwithstanding the difficulty in distinguishing between Mr. Shannon's allegations, the Court finds that the amended complaint does not contain any actionable claims. Tort actions based on a contract theory and brought directly by a third party, such as Mr. Shannon, against a liability carrier, such as Progressive, are not allowed under Indiana law. Furthermore, Mr. Shannon has failed to file an amended complaint ...

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