Ferraro v. Humphrey et al
OPINION AND ORDER: The Court GRANTS Defendants American National Services Corporations, Masco Corporations, and Old Republic Insurance Companys 24 Motion for Summary Judgment, and DENIES the Plaintiffs 27 Cross Motion for Summary Judgment and [3 9] Motion to Amend Complaint to Conform with Evidence. The Court finds that there is no just reason for delay of the judgment, and DIRECTS the Clerk of Court to enter final judgment in favor Defendants American National Services Corporation, Masco Corporation, and Old Republic Insurance Company against the Plaintiff. All claims against Defendant John A. Humphrey remain pending. Signed by Chief Judge Theresa L Springmann on 3/17/2017. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JOHN A. HUMPHREY, AMERICAN
NATIONAL SERVICES CORP.,
MASCO CORP., and OLD REPUBLIC
CAUSE NO.: 2:14-CV-396-TLS
OPINION AND ORDER
This matter is before the Court on a Motion for Summary Judgment [ECF No. 24] filed
by American National Services Corporation (“ANSC”), Masco Corporation, and Old Republic
Insurance Company (the “Masco Defendants”); a Cross-Motion for Summary Judgment [ECF
No. 27] filed by Plaintiff Peter Ferraro, and a Motion to Amend Complaint to Conform with
Evidence [ECF No. 39] also filed by the Plaintiff. The Masco Defendants filed their Motion for
Summary Judgment with their Memorandum in Support [ECF No. 25] and accompanying
Appendix [ECF No. 26] on November 24, 2015. The Plaintiff filed his Response [ECF Nos. 33]
and Brief [ECF No. 34] to the Masco Defendants’ Motion on December 22, 2015, to which the
Masco Defendants filed their Reply [ECF No. 37] on January 4, 2016. The Plaintiff filed his
Cross Motion for Summary Judgment and Memorandum in Support [ECF No. 28] on November
30, 2015. The Masco Defendants filed their Response [ECF No. 36] on December 28, 2015, to
which the Plaintiff filed his Reply [ECF No. 38] on January 11, 2016. The following day, on
January 12, 2016, the Plaintiff filed his Motion to Amend Complaint to Conform with Evidence.
The Masco Defendants filed their Response [ECF No. 40] on January 26, 2016, with the Plaintiff
filing his Reply [ECF No. 41] on February 2, 2016. The motions are ripe for ruling.
On June 9, 2004, the Plaintiff, a citizen of Illinois, was involved in an automobile
accident on the Indiana Toll Road in Lake Station, Indiana, with Defendant John A. Humphrey,
at the time a citizen of Indiana. Humphrey was an employee of ANSC, 1 a Delaware corporation
with its principal place of business in Taylor, Michigan. Humphrey’s vehicle was ANSC owned
and insured by Old Republic, a Pennsylvania corporation with its principle place of business in
Greensburg, Pennsylvania. ANSC is a wholly owned indirect subsidiary of Masco, also a
Delaware corporation with its principal place of business in Taylor, Michigan.
After the accident, Masco kept on file an “Auto Accident Report” of the collision, listing
the date, time, and location of the collision, and identifying Humphrey as the driver of its
company vehicle and Ferraro as the driver of the other vehicle involved with the collision. The
report also noted that Ferraro suffered injuries. At the time of the accident, Masco and its
subsidiaries were insured under Old Republic’s Business Automobile Insurance Policy 2 (the
“Old Republic Policy”). This policy covered the accident between the Plaintiff and Humphrey.
The Plaintiff filed suit against Humphrey and ANSC on June 8, 2006—two days before
the statute of limitations expired—in Indiana Superior Court. The Plaintiff served Humphrey
with a complaint and summons two days later via certified mail on June 10, 2006. Although
ANSC was a named defendant, it was not properly served, and did not receive notice of the suit.
Humphrey’s employment with ANSC was terminated on December 22, 2004. The Plaintiff has
not been able to enforce judgment against Humphrey because his whereabouts are currently unknown to
both the Plaintiff and Masco.
Policy No. 18398.
Humphrey never responded to the suit (including making any appearances) and did not provide
any notice of any kind to ANSC, MASCO, or Old Republic regarding the suit. As a result, the
Superior Court entered a default judgment for $372,543,41.00 against Humphrey on January 4,
2007. During the course of the state court suit—from its commencement through issuance of
default judgment—neither the Plaintiff nor his attorneys informed or contacted the Masco
Defendants regarding the proceedings. The Masco Defendants had no knowledge of the state
court suit until September 2011, when the Plaintiff’s counsel contacted Masco.
Ferraro was unable to collect the money damages from either Humphrey or ANSC so he
initiated proceedings supplemental pursuant to Indiana Rules of Trial Procedure Rule 69(E). On
September 27, 2012, Ferraro moved for summary judgment seeking to hold Masco liable as a
garnishee defendant on the theory that Masco held property, the proceeds from the Old Republic
insurance policy, on behalf of Humphrey that was subject to garnishment. The State Court
denied the motion on February 6, 2014. On February 24, 2014, Ferraro filed a Motion to Finalize
Order of February 6, 2014 or, alternatively, certify for interlocutory appeal, seeking to overturn
the Lake County Superior Court’s Order denying Ferraro’s summary judgment motion. The State
Court granted Ferraro’s Motion to Certify for Interlocutory Appeal on March 10, 2014. On May
2, 2014, the Indiana Court of Appeals denied Ferraro’s Motion to Accept Jurisdiction of
Interlocutory Appeal. The record of the State Court case contains nothing beyond the motion
denied on May 8, 2014.
On September 8, 2014, Ferraro filed a new complaint seeking declaratory relief in the
Lake County Superior Court [ECF No. 8], naming Humphrey, ANSC, Masco, and Old Republic,
as defendants. The Complaint was removed to this Court on November 3, 2014 [ECF No. 1].
The Plaintiff in this second suit seeks to attach Humphrey’s liability in the state court suit to the
Masco Defendants through a declaratory action.
Standard of Review
Summary judgment is warranted when “the movant 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. P. 56(a). Summary judgment is the moment in litigation where the non-moving party is
required to marshal and present the court with evidence on which a reasonable jury could rely to
find in his favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A
court’s role in deciding a motion for summary judgment “is not to sift through the evidence,
pondering the nuances and inconsistencies, and decide whom to believe. A court has one task
and one task only: to decide, based on the evidence of record, whether there is any material
dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir.
1994). Although a bare contention that an issue of material fact exists is insufficient to create a
factual dispute, a court must construe all facts in a light most favorable to the nonmoving party,
view all reasonable inferences in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485,
491–92 (7th Cir. 2000), and avoid “the temptation to decide which party’s version of the facts is
more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
The Plaintiff seeks declaratory relief for a determination that (1) Humphrey’s liability to
the Plaintiff is covered under the Old Republic Policy, (2) all preconditions to payment of the
judgment against Humphrey from proceeds under the policy have been met, and (3) the
Defendants are liable to the Plaintiff for the judgment against Humphrey from the proceeds of
the policy. (Compl. 3, ECF No. 8.) The Masco Defendants respond by moving for summary
judgment on the grounds that Humphrey’s liability is not covered under the Old Republic Policy
because Old Republic was never timely notified of the prior state court proceeding.
Alternatively, the Masco Defendants argue that even if it is determined that Humphrey’s liability
in the prior state court proceeding is covered under the policy, Old Republic cannot be bound by
a default judgment because it had no notice of the lawsuit. Lastly, the Masco Defendants
maintain that any new action against ANSC or Masco is time barred because the limitations
period has passed.
The Plaintiff concedes that “coverage under the Old Republic policy requires fulfillment
of the policy’s coverage conditions . . . to the extent that Humphrey would be entitled to seek
indemnification as a covered party.” (Pl.’s Br. 4, ECF No. 34.) But argues that the terms of the
Old Republic Policy do not govern the Plaintiff’s ability to recover from his employers. The
Plaintiff in response and on its own Cross Motion offers two legal theories for recovery against
Masco and ANSC: respondeat superior and vicarious liability, and collateral estoppel.
The Old Republic Policy
The Masco Defendants argue that Humphrey’s liability from the prior state court
proceeding is not covered under the Old Republic Policy, and cannot be enforced against ANSC,
Masco, or Old Republic. “A federal court sitting in diversity jurisdiction must apply the
substantive law of the state in which it sits.” Land v. Yamaha Motor Corp., 272 F.3d 514, 516
(7th Cir. 2001) (citations omitted). Under Indiana law, “[a]s with other contracts, the
interpretation of an insurance policy is generally a question of law for the courts.” Gallant Ins.
Co. v. Allstate Ins. Co., 723 N.E.2d 452, 455 (Ind. Ct. App. 2000) (citing Tate v. Secura Ins., 587
N.E.2d 665, 668 (Ind. 1992)). The Old Republic Policy mandates that an insured must notify Old
Republic or its authorized representative of any claim or lawsuit for coverage to apply. Section
IV(A)(2) clearly states: “you and any other involved insured must . . . . [i]mmediately send us
copies of any demand, notice, summons or legal paper received concerning the claim or suit.” 3
Of relevance, section IV(A)(2) of the policy states:
2. DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS
a. In the event of an accident, claim, suit or loss, you must give our
authorized representative prompt notice of the accident or loss. Include:
(1) How when and where the accident occurred;
(2) The insured’s name and address; and
(3) To the extent possible, the names and addresses of any injured
persons and witnesses.
If we show that your failure to provide notice prejudices our defense, there
is no liability under the policy.
b. Additionally, you and any other involved insured must:
(1) Assume no obligation, make no payment or incur no expense
without our consent, except at insured’s own cost.
(2) Immediately send us copies of any demand, notice, summons
or legal paper received concerning the claim or suit.
(3) Cooperate with us in the investigation, settlement or defense
of the claim or suit.
(4) Authorize us to obtain medical records or other pertinent
(5) Submit to examination, at our expense, by physicians of our
choice, as often as we reasonably require.
c. If there is loss to a covered auto or its equipment you must also do the
(1) Promptly notify the policy if the covered auto or any of its
equipment is stolen.
(2) Take all reasonable steps to protect the covered auto from
further damage. Also keep a record of your expenses for consideration in
the settlement of the claim.
(3) Permit us to inspect the covered auto and records providing the
loss before its repair or disposition.
(4) Agree to examination under oath at our request and give us a
signed statement of your answers.
(Bus. Auto Coverage Form 6–7, ECF No 26-2.) And section V contains the following relevant
D. Insured means any person or organization qualifying as an insured in
the Who is An Insured provision of the application coverage. Except with
respect to the Limit of Insurance, the coverage afforded applies separately
(Bus. Auto Coverage Form 6–7, ECF No. 36-2.) “Here, the insurance policy specifically
excludes coverage when the insurer does not receive actual notice of the lawsuit before entry of
judgment.” Gallant Ins. Co., 723 N.E.2d at 455. It is undisputed that the Plaintiff did not provide
notice to ANSC, Masco, or Old Republic of the state court suit, or entry of default judgment.
“Actual notice means notice sufficient to permit the insurer to locate the suit and defend it.” Id.
(citing Long v. Great Cent. Ins. Co., 190 Ill. App. 3d 159, 137 (Ill. App. 1989)). The Plaintiff
does not contest this point except to argue that Masco’s deductible under the policy would not be
exhausted and therefore, Old Republic “would not be liable, anyway.”
Furthermore, Indiana law precluded Old Republic from ever entering the prior state court
proceeding. “Absent notice of the filing” an insurance company is “not permitted to appear and
defend” a suit. Id. at 456. “Where prejudice is created by the insured’s noncompliance with the
policy’s provisions, the insurance company is relieved of its liability under the policy.” Id.
(citing Miller v. Dilts, 463 N.E.2d 257, 265 (Ind. 1984)). Accordingly, because the Plaintiff
failed to properly serve ANSC, Masco, or Old Republic, and gave no notice to them regarding
the prior state court proceeding and judgment, the Court finds Humphrey’s liability in the prior
state court proceeding is not covered under the Old Republic Policy.
to each insured who is seeking coverage or against whom a claim or suit
F. Loss means direct and accidental loss or damage.
I. Suit means a civil proceeding in which damages because of bodily injury
or property damage to which this insurance applies are alleged. Suit
includes arbitration proceeding alleging such damages to which you must
submit or submit with our consent.
The Masco Defendants argue that the Plaintiff cannot enforce the default judgment
against ANSC, Masco, or Old Republic because he is time barred from doing so. The Plaintiff
argues that the default judgment has preclusive effect and establishes liability for the Masco
Defendants under the doctrine of collateral estoppel. It is undisputed that ANSC, Masco, and Old
Republic did not receive any notice of the prior state court law suit and default judgment. The
default judgment cannot be enforced against ANSC, Masco, or Old Republic because they did
not have notice of the prior state court proceeding. Indiana “[t]rial courts must consider two
factors in determining whether to apply collateral estoppel: whether the party against whom the
judgment is pled had a full and fair opportunity to litigate the issue, and whether it would be
otherwise unfair under the circumstances of the particular case.” Wolverine Mut. Ins. V. Vance ex
rel. Tinsley, 325 F.3d 939, 943 (7th Cir. 2003) (quotations removed) (citing Tofany v. NBS
Imaging, 616 N.E.2d 1034, 1037 (Ind. 1993)). Here, ANSC, Masco and Old Republic did not
have a full and fair opportunity to litigate the issue because they did not have notice of the prior
state court suit. Furthermore, it would be unfair under the circumstances.
The Plaintiff cites In re Catt, 368 F.3d 789, 791 (7th Cir. 2004), for the proposition that
Indiana is among a “significant minority of states” that “allow findings made in default
proceedings to collaterally estop, provided that the defaulted party could have appeared and
defended if he had wanted to.” Id. at 791 (first citing Grantham Realty Corp. v. Bowers, 215 Ind.
672, 22 N.E.2d 832, 836 (1939); then citing Small v. Centocor, Inc., 731 N.E.2d 22, 28 (Ind.
App. 2000); and then citing Progressive Casualty Ins. Co. v. Morris, 603 N.E.2d 1380 (Ind. App.
1992); and then citing Kirby v. Second Bible Missionary Church, Inc., 413 N.E.2d 330 (Ind.
App. 1980)). However, ANSC and Masco could not have appeared and defended the state court
suit if they wanted to because they did not have notice of the suit. The same principle applies to
Old Republic as an insurer. Liberty Mutual Ins. Co. v. Metzler, 586 N.E.2d 897, 900 (Ind. App.
1992) (“The doctrine of collateral estoppel applies to insurance contracts and an insurer is
ordinarily bound by the result of litigation to which its insured is a party, so long as the insurer
had notice and the opportunity to control the proceedings.”) (emphasis added) (first citing
Hoosier Casualty Co. v. Miers, 27 N.E.2d 342 (Ind. 1940); then citing Snodgrass v. Baize, 405
N.E.2d 48 (Ind. 1980)). Furthermore, as discussed above, Indiana law does not provide for
enforcement of a default judgment against an insured where the insurer did not have actual
notice of the underlying proceeding. Gallant Ins. Co., 723 N.E.2d at 456. Accordingly, the
Plaintiff cannot invoke the doctrine of collateral estoppel to establish liability for ANSC, Masco,
and Old Republic.
Doctrine of Respondeat Superior and Vicarious Liability
The Plaintiff argues both in its brief in opposition and for its own cross motion for
summary judgment that ANSC and Masco are liable to the Plaintiff under a theory of respondent
superior and vicarious liability. “The general rule is that vicarious liability will be imposed upon
an employer under the doctrine of respondeat superior where the employee has inflicted harm
while acting “‘within the scope of employment.’” Barnett v. Clark, 889 N.E.2d 281, 283–84
(Ind. 2008) (first citing Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 148 (Ind. 1999); then
citing Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind. 1997); and
then citing Helfrich v. Williams, 84 Ind. 553, 554–55 (Ind. 1882)). “And in order for an
employee’s act to fall ‘within the scope of employment,’ the injurious act must be incidental to
the conduct authorized or it must, to an appreciable extent, further the employer’s business.” Id.
(citing Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000)). However, the
Masco Defendants argue that the Plaintiff cannot assert a tort theory because he is only seeking
relief under the Indiana Uniform Declaratory Judgment Act, and even if the Plaintiff properly
pleaded the tort claim, it is now time barred.
The Plaintiff did not plead a claim for vicarious liability or any other tort based claim in
this action. In the Plaintiff’s prayer for relief in the Complaint, the Plaintiff asked the Court to
(1) Humphrey’s liability to Plaintiff is covered under the Policy,
(2) all preconditions to payment of the judgment against
Humphrey from proceeds of the Policy have been met, and (3)
Defendants are liable to pay Plaintiff the judgment against
Humphrey from proceeds of the Policy . . . .
(Compl. 3, ECF No. 8.) Under Ind. Code § 34-14-1, “[c]ourts of record within their respective
jurisdictions have the power to declare rights, status, and other legal relations whether or not
further relief is or could be claimed.” Ind. Code § 34-14-1. By seeking a vicarious liability
theory, the Plaintiff asks the Court to award relief outside the scope of the declaratory relief
sought. The Plaintiff’s Complaint does not plead a claim of vicarious liability or any other tort
based claim. A complaint under Federal Rule of Civil Procedure 8(a) only requires “a short and
plain statement of the claim showing that the pleader is entitled to relief,” and “a demand for
relief sought.” Fed. R. Civ. P. 8(a). These requirements help fulfill Rule 8(a)’s “essential
function” to “put the defendant on notice of the plaintiff’s claim.” Ross Brothers Const. Co., v.
Inter’l Steel Servs., Inc., 283 F.3d 867, 872 (7th Cir. 2002) (quoting Davis v. Ruby Foods, Inc.,
269 F.3d 818, 820 (7th Cir. 2001)).
The Plaintiff cannot now assert a claim for vicarious liability. “[A] plaintiff may not
amend his complaint through arguments in his brief in opposition to a motion for summary
judgment.” Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. 2002); Shanahan v. City of Chi., 82
F.3d 776, 781 (7th Cir.1996). Because the Plaintiff failed to allege a claim for vicarious liability
the Court will not consider it on summary judgment.
The Plaintiff in his Cross Motion invokes Wilton–Brillhart abstention arguing that the
Court should decline to hear this action because there is a parallel proceeding. The Masco
Defendants argue that the Plaintiff misconstrues the law and that abstention is wholly
inappropriate. “Wilton-Brillhart abstention applies when a federal court is called upon to proceed
in a declaratory judgment suit where another suit is pending in state court presenting the same
issues, not governed by federal law, between the same parties.” Arnold v. KJD Real Estate, LLC,
752 F.3d 700, 707 (7th Cir. 2014) (quoting Brillhart v. Excess Ins. Co. of Amer., 316 U.S. 491,
495 (1942) (brackets, quotations, and ellipsis in original removed)). “In such a case, the question
for the district court is whether the questions in controversy between the parties to the federal
suit can better be settled in the proceeding pending in the state court.” Id. (first quoting Wilton v.
Seven Falls Co., 515 U.S. 277, 282 (1995), and then quoting Brillhart, 316 U.S. at 495)
(quotations in original removed). “As the Court put it in Wilton, where another suit involving the
same parties and presenting opportunity for ventilation of the same state law issues is pending in
state court, a district court might be indulging in gratuitous interference if it permitted the federal
declaratory action to proceed.” Id. (quoting Wilton, 515 U.S. at 283) (quotations in original
Wilton-Brillhart abstention is inappropriate here because the prior state court suit is not a
pending state court matter presenting the same issues between the same parties. The Plaintiff
received a final judgment on September 18, 2007, when the Lake County Superior Court entered
the default judgment against Humphrey, who was the only proper defendant in that suit. The
Plaintiff then engaged in proceedings supplemental pursuant to Trial Rule 69(E) several years
later in that same original state court proceeding. The Plaintiff sought to hold Masco liable as a
garnishee defendant for Humphrey’s default judgment.
The proceedings supplemental in this case are not a parallel proceeding in which a party
can invoke Wilton–Brillhart abstention. See Travco Ins. Co. v. Webster, 1:14-cv-95-SEB-DML,
2014 WL 1659742, at *5 (S.D. Ind. April 25, 2014). While “it is possible for some insurance
coverage issues to be decided in the context of a proceeding supplemental under Indiana law” the
prior state court suit was not one of them. See Id. at *4. “In the years since Trial Rule 69(E) was
adopted, Indiana courts have routinely held that proceedings supplemental are merely extensions
of the underlying action, not separate and independent actions.” State Farm Mut. Auto. Ins. Co.
v. Estep, 873 N.E.2d 1021, 129 (Ind. 2007) (Boehm, J. concurring in part and dissenting in part).
“Since a proceeding supplemental is merely an extension of the underlying action, the merits of
any assigned claim should not be tried in this limited forum.” Id. at n.4 (citing First Bank of
Whiting v. Sisters of Mercy Health Corp., 545 N.E.2d 1134, 1141 (Ind. Ct. App. 1989) (holding a
proceeding supplemental is not an appropriate forum to try a judgment creditor’s cause of action
against a garnishee-defendant). Only after the Lake County Superior Court denied the Plaintiff’s
motion for summary judgment seeking to attach Humphrey’s default judgment liability to
Masco, and after the Plaintiff’s failed interlocutory appeal, did the Plaintiff seek to file a new suit
in state court that was removed to this Court. Accordingly, the state court suit is not a parallel
proceeding as asserted by the Plaintiff. Under Wilton–Brillhart, it would be inappropriate for this
Court to abstain because there is no parallel proceeding and the questions in controversy between
the parties to this federal suit cannot better be settled in another proceeding pending in the state
Lastly, after the Masco Defendants’ Motion, and after his own Cross Motion, the Plaintiff
has filed an amended complaint to add the tort claim of vicarious liability—an argument he made
on both summary judgment motions. The Plaintiff argues that the vicarious liability claim is
declaratory in nature, and therefore not subject to statute of limitations. The Plaintiff contends
that this is because it is asking the Court to merely declare the status of Masco and ANSC as
employers of Humphrey. The Plaintiff also asserts that adding the tort claim at this late stage
would not be prejudicial.
Contrary to the Plaintiff’s assertion, the vicarious liability claim is not for declaratory
relief, but in fact for non-declaratory relief. See e.g., R.R. Street & Co., Inc. v. Vulcan Materials
Co., 569 F.3d 711, 716–717 (7th Cir. 2009) (distinguishing between declaratory relief and nondeclaratory relief claims). Vicarious liability under Indiana law requires elements to be pled and
proved as discussed above. Proving these elements require triable issues of fact, not matters of
law where the Court has the power to “declare the rights and other legal relations of any
interested party” 28 U.S.C. § 2201(a). Framing this another way, if the Plaintiff had properly
served ANSC, and by extension Masco, a vicarious liability action would be an underlying claim
to any declaratory suit regarding the rights of the parties under the Old Republic Policy. Even if
the Court were to declare the statuses of Humphrey, ANSC, and Masco as employee and
employers respectively, that alone would not establish that ANSC and Masco are liable under a
vicarious liability claim because they never had an opportunity to litigate the elements of the tort.
As the Court previously discussed, the default judgment against Humphrey cannot be given
preclusive effect to collaterally estop ANSC and Masco from litigating the claims against them
because they were not given notice of the prior state court suit. Accordingly, the Plaintiff cannot
characterize the vicarious liability claim it seeks to add as declaratory relief.
It appears the Plaintiff’s objective in characterizing the vicarious liability claim as
declaratory relief was an attempt to circumvent the limitations for the tort claim. Under Indiana
Code § 34-11-2-4, “[a]n action for . . . injury to person . . . must be commenced within two . . .
years after the cause of action accrues.” The statute of limitations for a vicarious liability claim
involving the accident that took place on June 9, 2004 ran on June 10, 2006. Thus, any new tort
claim before this Court is time barred.
Nor does the claim relate back to ANSC or Masco. “[A]n amended complaint relates
back to the filing of the original complaint when ‘the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the
original pleading . . . .’” Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013)
(first quoting Fed. R. Civ. P. 15(c)(1)(B); then citing Henderson v. Bolanda, 253 F.3d 928, 931
(7th Cir. 2001); and then citing Woods v. Indiana Univ.-Purdue at Indianapolis, 996 F.2d 880,
884 (7th Cir. 1993); and then citing Donnelly v. Yellow Freight System, Inc., 874 F.2d 402, 410
(7th Cir.1989). But “original pleading” does not mean a pleading from another action. An
amended pleading cannot relate back to a pleading in a separate action. Brinson v. Wexford
Health Sources, Inc., No. 12 C 50080, 2014 WL 1652087, at 3* (N.D. Ill. April 23, 2014) (“It
appears . . . that courts routinely reject attempts to use Rule 15 to relate a pleading back to a
previously filed case.”); see Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994) (“[A]
separately field claim, as opposed to an amendment or supplemental pleading, does not relate
back to a previously filed claim.”). This is because “[w]ere this not the rule, statutes of
limitations would be easily nullified.” Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir.
The Plaintiff cannot amend his Complaint to add a new claim because any new claim is
time barred. “If the amended claim would not survive a motion for summary judgment, the
amendment is futile.” Sound of Music Co. v. Minn. Min. & Mfg. Co., 477 F.3d 910, 922–23 (7th
Cir. 2007) (citing Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001)).
Accordingly, the Court denies the Plaintiff’s Motion to Amend the Complaint. 4
For the foregoing reasons, the Court GRANTS Defendants American National Services
Corporation’s, Masco Corporation’s, and Old Republic Insurance Company’s Motion for
Summary Judgment [ECF No. 24], and DENIES the Plaintiff’s Cross Motion for Summary
Judgment [ECF No. 27] and Motion to Amend Complaint to Conform with Evidence [ECF
No. 39]. Pursuant to Rule 54(b), the Court finds that there is no just reason for delay of the
judgment, and DIRECTS the Clerk of Court to enter final judgment in favor Defendants
American National Services Corporation, Masco Corporation, and Old Republic Insurance
Company against the Plaintiff. All claims against Defendant John A. Humphrey remain pending.
SO ORDERED on March 17, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
The Court does not reach the question of whether amending the Complaint at this stage would
be unduly prejudicial to the Defendants.
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