Brandt v. McNelly et al

Filing 32

OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants City of La Grange, Dale McNelly, Jeff Curl, and Josh Daviss Motion to Dismiss Plaintiffs Petition [ECF No. 16 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff Jerry Brandts c laims of violations of Fourth and Fourteenth Amendments, and Plaintiffs negligence claim against Defendants City of La Grange, Dale McNelly, Jeff Curl, and Josh Davis shall be DISMISSED, without prejudice. IT IS FURTHER ORDERED that Plaintiff Jerry Brandts remaining claims against Defendants City of La Grange, Dale McNelly, Jeff Curl, and Josh Davis shall be DISMISSED, with prejudice. IT IS FURTHER ORDERED that Defendant Julie K. Flanagans Motion to Dismiss [ECF No. 18 ] is GRANTED. IT IS FUR THER ORDERED that Plaintiff Jerry Brandts claim against Defendant Julie K. Flanagan shall be DISMISSED, without prejudice. IT IS FURTHER ORDERED that Defendant Progressive Casualty Insurance Companys Motion to Dismiss [ECF No. 8 ] is GRANTED. 13 The exception to this rule is the right of a third party to sue an insurance company for negligent misrepresentation which is not at issue in this case. Grisamore, 306 S.W.3d at 574. IT IS FURTHER ORDERED that Plaintiff Jerry Brandts claim against Defendant Progressive Casualty Insurance Company shall be DISMISSED, with prejudice. Signed by District Judge Henry Edward Autrey on 4/7/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JERRY BRANDT,
Plaintiff,
v.
CITY OF La GRANGE, MISSOURI, et al.,
Defendants.

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No. 2:15CV7 ERW/HEA

OPINION, MEMORANDUM AND ORDER
This is before the Court on Defendants City of La Grange, Dale McNelly, Jeff Curl, and
Josh Davis’s Motion to Dismiss Plaintiff’s Petition [ECF No. 16], Defendant Julie K. Flanagan’s
Motion to Dismiss [ECF No. 18], and Defendant Progressive Casualty Insurance Company’s
Motion to Dismiss [ECF No. 8].
Background1
Plaintiff, Jerry Brandt initially filed this lawsuit in the Circuit Court of Lewis County on
January 7, 2015. On February 6, 2015, Defendants City of La Grange, Dale McNelly, Jeff Curl,
and Josh Davis (“La Grange Defendants”) removed the Petition to this Court pursuant to 28
U.S.C. §§ 1331, 1367, 1441, and 1446. On February 9, 2015, Defendant Progressive Casualty
Insurance Company2 (“Defendant Progressive”) filed its pending Motion to Dismiss [ECF No.
8], for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil

1

For purposes of these Motions to Dismiss, the Court accepts as true the facts alleged in
Plaintiff’s Petition.
2
Defendant Progressive was improperly identified in Plaintiff’s complaint as Progressive
Insurance Company and Progressive Group Insurance Company. The correct party is
Progressive Casualty Insurance Company.

Procedure (“FRCP”) 12(b)(6)3 claiming an injured party cannot proceed by direct action against
an insurance company providing liability coverage for an insured who allegedly caused the harm
to Plaintiff. On December 13, 2015, the La Grange Defendants filed their pending Motion to
Dismiss [ECF No. 16] for failure to state a claim upon which relief can be granted pursuant to
FRCP 12(b)(6). On February 17, 2015, Defendant Julie Flanagan (“Defendant Flanagan”) filed
her pending Motion to Dismiss [ECF No. 18], for failure to state a claim upon which relief can
be granted pursuant to FRCP 12(b)(6) for failure to allege facts in support of each element of a
claim for negligence.
On November 11, 2014, at the intersection of Fourth Street and Poage Street in La
Grange, Missouri, Defendant Flanagan made a left turn in front of oncoming traffic from a side
street onto a through street, failing to stop or yield to oncoming traffic. Defendant Flanagan also
failed to use a turn signal in making the left turn. Defendant Flanagan’s vehicle collided with
Plaintiff’s vehicle.4 Police Chief Dale McNelly investigated the accident and filed an allegedly
false police report accusing Plaintiff of causing an accident without asking any questions of
Plaintiff in a court of law. Chief McNelly also allegedly falsely reported the following facts:
(1) the impact of the accident was from the front of one vehicle to the front of the other
vehicle when in fact the impact was from the side of one vehicle to the side of the other;
(2) the accident was on Poage Street at the intersection of 4th street when in actuality the
accident was on Fourth Street, which is a through street, and Poage Street, which is a side street;
(3) the street was concrete when it was asphalt;

3

Defendant Progressive does not state in its Motion to Dismiss or Memorandum in Support that
it is requesting relief under FRCP 12(b)(6), however, the Court’s reading of its Motion suggests
this is the provision under which Defendant Progressive is requesting relief.
4
This fact is not explicitly pled in Plaintiff’s petition but can be inferred from Plaintiff’s
references to an accident throughout his petition.
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(4) Plaintiff was at fault because of improper lane usage when Plaintiff had the right of
way on a through street;
(5) Plaintiff was distracted with no evidence or proof of the statement;
(6) Defendant Flanagan did not fail to yield to oncoming traffic;
(7) Defendant Flanagan did not make an improper turn by making an illegal left turn into
the path of an oncoming vehicle;
(8) Defendant Flanagan stopped to avoid an accident when she did not, in fact, stop; and
(9) Plaintiff stated Defendant Flanagan came out of nowhere.
Chief McNelly refused to issue a citation to Defendant Flanagan. Police Officer Josh
Davis did not speak with Plaintiff at any time.
City Attorney Jeff Curl had knowledge of the allegedly false police reports and did not do
anything to stop the filing of the false police report, conspired to use the false police report in a
court of law, and did not reprimand the officers for filing the allegedly false police reports. City
Attorney Curl conspired to bribe and used extortion, with Judge Fred Westhoff, in an attempt to
force Plaintiff to plead guilty to an accident in which Plaintiff was not at fault, by offering to
reduce the fine and not report Plaintiff’s lack of insurance at the time of the accident.
According to Plaintiff, the City of La Grange refused to place a stop sign or yield sign at
the end of Poage Street and refused to widen the intersection knowing the intersection is
dangerous with no traffic signs. Plaintiff asserts Defendant City of La Grange knows the
intersection is not thirty feet wide as required by law and knows gravel from Fourth Street
washes into the intersection when it rains.
Defendant Progressive refused to pay for damages to Plaintiff’s vehicle. Plaintiff brings
claims against the Defendants under Missouri Revised Statutes 575.040, 575.050, 575.060,

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575.080, 18 U.S.C. § 241, 5 U.S.C. § 552(a), the First Amendment, Fourth Amendment, and
Fourteenth Amendment of the United States Constitution, and negligence. Plaintiff seeks both
damages and equitable relief, in that he asks the Court to order a criminal investigation into the
attempted bribery and extortion and an injunction against the City of La Grange and its police
officers from further harassment or false charges and allegations. Defendants now seek to
dismiss Plaintiff’s claims.
Standard
Under FRCP 12(b)(6), a party may move to dismiss a claim for “failure to state a claim
upon which relief can be granted.” The notice pleading standard of FRCP 8(a)(2) requires a
plaintiff to give “a short and plain statement showing that the pleader is entitled to relief.” To
meet this standard and to survive a FRCP 12(b)(6) motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). This
requirement of facial plausibility means the factual content of the plaintiff’s allegations must
“allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Cole v. Homier Distrib. Co., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Iqbal, 556
U.S. at 678). Courts must assess the plausibility of a given claim with reference to the plaintiff’s
allegations as a whole, not in terms of the plausibility of each individual allegation. Zoltek Corp.
v. Structural Polymer Group, 592 F.3d 893, 896 n.4 (8th Cir. 2010) (internal citation omitted).
This inquiry is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. The Court must grant all reasonable
inferences in favor of the nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th
Cir. 2010).

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DISCUSSION
A.

Defendants City of La Grange, McNelly, Curl, and Davis’s Motion to Dismiss

Plaintiff alleges the La Grange Defendants violated several statutes include Missouri
Revised Statutes 575.040, 575.050, 575.060, 575.080, 18 U.S.C. § 241, 5 U.S.C. § 552(a), and
the First Amendment, Fourth Amendment, and Fourteenth Amendment of the United States
Constitution. Plaintiff also alleges the City of La Grange is negligent for failure to place traffic
signs at the intersection where the accident occurred and for failure to prevent loose gravel from
entering the intersection.
1.

Criminal Statute Claims

Plaintiff attempts to bring claims against the La Grange Defendants under six criminal
statutes without civil causes of action. First, Missouri Revised Statute § 575.040 provides
criminal penalties for perjury but does not provide a separate civil or private cause of action.
Missouri Revised Statute § 575.050 provides criminal penalties for the crime of making a false
affidavit. It also does not provide a separate civil or private cause of action. Missouri Revised
Statute § 575.060 defines the crime of making a false declaration and provides for criminal
penalties; it does not create a civil or private cause of action. Missouri Revised Statute §
575.080 creates the crime of making a false report, but does not create a separate civil or private
cause of action. Plaintiff also asserts claims under 18 U.S.C. § 241. This statute creates a
criminal offense and penalties for conspiracy to injure, oppress, threaten, or intimidate any
person in the enjoyment or free exercise of a right or privilege under the United States
Constitution or laws. 18 U.S.C. § 241. A statute creating a criminal offense does not create an
independent civil cause of action unless it is expressly stated or the legislative intent to create
such a cause of action is clearly intended. Christy v. Petrus, 295 S.W.2d 122, 126 (Mo. banc

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1956). Plaintiff has no standing to assert a claim under these criminal statutes. Plaintiff’s claims
under these statutes will be dismissed with prejudice.5
2.

Claim under 5 U.S.C. § 552(a)

Federal agencies are required to disclose certain information to the public under 5 U.S.C.
§ 552(a). Plaintiff claims the La Grange Defendants are violating this statute but does not plead
any facts supporting this claim. This statute applies only to federal agencies and does not apply
to state agencies, private entities, or state and local officials. Unt v. Aerospace Corp., 765 F.2d
1440, 1447 (9th Cir. 1985); see also 5 U.S.C. § 551 (definitions applicable to § 552); Polchowski
v. Gorris, 714 F.2d 749, 752 (7th Cir. 1983) (finding the statute when first proposed, included
state authorities but those provisions were deleted); Pennyfeather v. Tessler, 431 F.3d 54, 56 (2d
Cir. 2005) (finding there is no private right of action against an official or employee of a
municipality under 5 U.S.C. § 552). Plaintiff’s claims are not brought against federal agencies
but rather a municipality and its employees. Plaintiff’s claims brought under 5 U.S.C. § 552 will
be dismissed with prejudice.
3.

Constitutional Claims

Plaintiff alleges the La Grange Defendants violated his First, Fourth and Fourteenth
Amendment rights.6 The La Grange Defendants assert Plaintiff’s claims fail to state claims upon
which relief can be granted and should be dismissed.
Plaintiff’s petition does not allege his claims are being asserted under 42 U.S.C. § 1983,

5

Defendants also assert Plaintiff’s claims arising under these statutes should be dismissed
because claims against Defendants McNelly, Curl and Davis are barred by official immunity and
the public duty doctrine, claims of perjury in a judicial proceeding is not a legally recognized
cause of action, and claims against Defendant Curl are barred by absolute immunity. The Court
need not address these arguments as Plaintiff’s claims will be dismissed because these statutes
are criminal statutes with no private right to bring a civil cause of action.
6
Plaintiff asserts claims against the Defendants in their individual and official capacities.
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by the Court liberally construes Plaintiff’s complaint as asserting a cause of action under this
statute as § 1983 provides a civil cause of action for pursuing a violation of the rights protected
by the Constitution. See Williams v. Target Stores, 479 Fed. Appx. 26, 28 (8th Cir. 2012)
(stating “Complaints, including pro se complaints, must be liberally construed.”). Generally, to
state a claim under § 1983, Plaintiff must show a deprivation of a right or privilege secured by
the Constitution or laws of the United States and the deprivation was caused by a person acting
under the color of state law. Flaggs Brothers, Inc. v. Brooks, 436 U.S. 149, 155 (1978). “Broad
and conclusory statements unsupported by factual allegations are not sufficient to support a
cause of action under § 1983.” Ellingburg v. King, 490 F.2d 1270, 1271 (8th Cir. 1974)
(citations omitted).
i.

First Amendment Claims

Plaintiff claims the La Grange Defendants violated his First Amendment rights, but
Plaintiff’s petition fails to state any facts supporting his allegation. While pro se complaints
should be construed liberally, they must still allege facts sufficient to support the claims asserted.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004). A court “will not supply additional facts, nor will [it] construct a legal theory for plaintiff
that assumes facts that have not been pleaded.” Estelle, 429 U.S. at 915. (quoting Dunn v. White,
880 F.2d 1188, 1197 (10th Cir. 1989). Plaintiff did not plead any facts showing his speech has
been restricted or chilled in any manner. When a plaintiff asserts no facts stating his speech was
interfered with or restricted, his allegations fall short of a First Amendment violation. Fogle v.
Mo. Dep’t of Mental Health, No. 4:08CV1398 DJS, 2008 WL 5234757 at *2 (E.D.Mo. Dec. 15,
2008); Thompson v. Adams, 268 F.3d 609, 614 (8th 2001). Here, no facts have been pled to
support a First Amendment violation. Plaintiff’s First Amendment claims will be dismissed

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without prejudice.
ii.

Fourth Amendment Claims

Plaintiff’s Fourth Amendment claims against the La Grange Defendants will be
dismissed for failure to state any facts beyond the mere conclusory statement his Fourth
Amendment rights were violated. The Fourth Amendment protects against unreasonable
searches and seizures. U.S. Const. amend. IV. Plaintiff has failed to allege he was searched or
seized. His complaint references a vehicular accident and a report of the accident being
introduced into court at some point. But it is indiscernible whether Plaintiff was arrested,
searched, or otherwise detained at any point in time. There are no allegations of use of excessive
force either. Without a search or seizure, there can be no Fourth Amendment violation.
Plaintiff’s Fourth Amendment claims will be dismissed without prejudice.
iii.

Fourteenth Amendment Claims

Plaintiff claims the La Grange Defendants violated his Fourteenth Amendment rights.
The La Grange Defendants assert Plaintiff has failed to state a claim upon which relief can be
granted because he failed to allege sufficient factual allegations to support either a due process
violation or a violation of Plaintiff’s equal protection rights. The Fourteenth Amendment is
comprised of two clauses, the Due Process Clause and the Equal Protection Clause. U.S. Const.
amend. XIV. The Due Process Clause “prohibits governments from depriving ‘any person of
life, liberty, or property, without due process of law.’” Creason v. City of Washington, 435 F.3d
820, 824 (8th Cir. 2006) (quoting U.S. Const. amend XIV, § 1). The clause has two components:
substantive due process and procedural due process. Singleton v. Cecil, 176 F.3d 419, 424 (8th
Cir. 1999) (citing County of Sacramento v. Lewis, 523 U.S. 833 (1998)). “Analysis of either a
procedural or substantive due process claim must begin with an examination of the interest

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allegedly violated, and the possession of a protected life, liberty, or property interest is . . . a
condition precedent to any due process claim.” Id. (internal citations and quotations omitted).
It is not clear from Plaintiff’s pleadings if he asserts a procedural or substantive due
process claim. But whether Plaintiff is asserting a procedural or substantive due process claim
does not change the outcome; Plaintiff does not allege an interest violated, the condition
precedent to any due process claim. The Court, like the Defendants, cannot discern the nature of
the interest in question. Defendants interpret Plaintiff’s allegation as a deprivation of due
process due to a false police report.7 According to Defendants, Plaintiff’s claim fails because
there is no constitutional right to an accurate police report.
A falsified police report constitutes a due process violation only when it leads to an
unconstitutional deprivation of life, liberty, or property; “there is no constitutional right to an
accurate police report.” Harmon v. St. Louis County, No. 4:08CV226SNLJ, 2009 WL 880024 at
*3 (E.D.Mo. Mar. 30, 2009) (citing Shock v. Tester, 405 F.2d. 852, 855 (8th Cir. 1969);
Landrigan v. Warwick, 628 F.2d 736, 744 (1st Cir. 1980)). In the present case, Plaintiff has
failed to claim this allegedly false police report lead to an unconstitutional deprivation of life,
liberty, or property. The Court, cannot, and will not, construct a legal theory for Plaintiff, even
under a liberal reading of his pleadings. Estelle, 429 U.S. at 915. Plaintiff’s complaint does not
state a claim for a violation of the due process clause of the Fourteenth Amendment.
Plaintiff’s complaint also fails to assert an Equal Protection Clause claim under the
Fourteenth Amendment. To assert a claim under the Equal Protection Clause, Plaintiff must
allege “unlawful, purposeful discrimination.” Batra v. Board of Regents of Univ. of Neb., 79
F.3d 717, 722 (8th Cir. 1996). Plaintiff must allege he is a member of an identified classification
7

The Court will analyze Plaintiff’s claim as suggested by Defendants as no other interest is
discernible to the Court.
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or he was “intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Harmon, 2009 WL 880024 at *5 (quoting Village
of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000)). Plaintiff has failed to allege he was a
member of a protected class or he was treated differently from others similarly situated.
Therefore, Plaintiff fails to state a claim under the Equal Protection Clause of the Fourteenth
Amendment.
Plaintiff’s claims under the Fourteenth Amendment will be dismissed because he has not
stated a due process violation and has not sufficiently asserted a claim under the Equal Protection
Clause of the Fourteenth Amendment. Plaintiff also failed to state a claim upon which relief can
be granted under the First and Fourth Amendments. Thus, Plaintiff’s § 1983 claims will be
dismissed for failure to state a claim upon which relief can be granted.8
4.

Negligence Claims

Plaintiff asserts a negligence claims against Defendant City of La Grange for failure to
place a stop sign or yield sign at the end of Poage Street, failure to widen the intersection to the
thirty feet allegedly required by law, and failure to clean off loose gravel which washes into the
intersection when it rains. Defendant City of La Grange asserts Plaintiff’s claims are barred by
sovereign immunity.9
Missouri Revised Statute § 537.600 provides for sovereign or governmental tort

8

Defendants assert Plaintiff’s constitutional claims should also be dismissed because Plaintiff
fails to allege Officer Davis directly participated in a deprivation of Plaintiff’s constitutional
rights, and Plaintiff failed to allege any violations were the result of an unconstitutional policy or
custom of the city. The Court need not address these arguments because Plaintiff’s claims will
be dismissed for the reasons stated supra.
9
All of the La Grange Defendants assert they are entitled to sovereign immunity for all of
Plaintiff’s state tort law claims. The Court reads Plaintiff’s complaint to only assert a state tort
law claim against the City of La Grange and not against the individual defendants.
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immunity with two exceptions.10 Immunity is expressly waived for injuries directly resulting
from negligent acts or omissions by public employees arising out of the operation of vehicles in
the course of their employment and injuries caused by the dangerous condition of a public
entity’s property. Mo. Rev. Stat. § 537.600.1. Plaintiff must plead with specificity the facts
showing his claim falls within one of the two exceptions. Parish v. Novus Equities Co., 231
S.W.3d 236, 241-42 (Mo. Ct. App. 2007). As there are no allegations of a defendant or
employee of a defendant driving a vehicle negligently, Plaintiff’s claims do not fall into the first
exception. Plaintiff’s claims may fall into the second exception as it appears Plaintiff is alleging
a dangerous condition of public property caused his injuries.
To establish the dangerous condition exception to sovereign immunity, Plaintiff must
allege facts showing: (1) the dangerous condition of the property; (2) Plaintiff’s injuries directly
resulted from the dangerous condition; (3) the dangerous condition created a reasonably
foreseeable risk of harm of the kind Plaintiff incurred; and (4) Defendant City of La Grange had
actual or constructive notice of the dangerous condition with sufficient time to have taken
measures to correct the dangerous condition. Mo. Rev. Stat. § 537.600.1(2); Hensley v. Jackson
County, 227 S.W.3d 491, 496 (Mo. 2007); Trumbo v. Met. St. Louis Sewer Dist., 877 S.W.2d
198, 201 (Mo. Ct. App. 1994). A dangerous condition exists when there is a physical deficiency
in the property. Kraus v. Hy-Vee, Inc., 147 S.W.3d 907, 915 (Mo. Ct. App. 2004) (citing
Alexander v. State, 756 S.W.2d 539, 542 (Mo. banc 1988). It may arise from “a general failure
to post adequate signing or traffic controls.” Id. (quoting United Mo. Bank v. City of Grandview,
105 S.W.3d 890, 902 (Mo. Ct. App. 2003)).
It is possible for Defendant City of La Grange to be liable for negligence for failure to
10

A municipal corporation is a public entity entitled to sovereign immunity. State ex rel. City of
Marston v. Mann, 921 S.W.2d 100, 102 (Mo. Ct. App. 1996).
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post proper traffic signs; however, in this case, Plaintiff fails to allege facts sufficient to allege a
dangerous condition. Plaintiff makes conclusory statements the intersection of Fourth Street and
Poage Street is dangerous without providing any support for his allegation beyond the lack of
traffic signs. In similar cases, Missouri courts have found allegations relating only to the volume
of pedestrian and vehicle traffic of an intersection insufficient to allege a dangerous condition for
failure to post a traffic sign. Hedayati v. Helton, 860 S.W.2d 795 (Mo. Ct. App. 1993); see also
Johnson v. City of Springfield, 817 S.W.2d 611 (Mo. Ct. App. 1991). Here, Plaintiff failed to
allege any facts to support his contention the intersection is dangerous. Without more than a lack
of traffic signs, Plaintiff’s claims fail to fall into an exception and are barred by sovereign
immunity.11
Plaintiff fails to allege facts sufficient for any of his claims against the La Grange
Defendants. Accordingly, his petition against Defendants City of La Grange, McNelly, Davis,
and Curl will be dismissed pursuant to FRCP 12(b)(6).12
B.

Defendant Flanagan’s Motion to Dismiss

Defendant Flanagan requests the Court dismiss Plaintiff’s claim against her pursuant to
FRCP 12(b)(6) for failure to state a claim upon which relief can be granted [ECF No. 18].
Defendant Flanagan states it appears Plaintiff’s petition makes a claim of negligence against her.
Defendant Flanagan contends Plaintiff’s Petition fails because Plaintiff does not allege facts in
support of each element of negligence. Specifically Plaintiff fails to allege facts that Defendant
Flanagan’s breach of duty was the proximate cause of Plaintiff’s injuries and Plaintiff failed to
11

Defendants argue Plaintiff fails to allege his injuries were the proximate cause of the
dangerous condition of the intersection. It is not necessary for the Court to decide if Plaintiff has
sufficiently pled proximate cause when Plaintiff has failed to sufficiently allege a dangerous
condition.
12
As all of Plaintiff’s claims will be dismissed, it is not necessary for the Court to analyze
Defendants’ Motion to Dismiss regarding punitive damages or availability of injunctive relief.
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allege he was damaged as a result of the breach.
Plaintiff’s complaint alleges the following facts: Defendant Flanagan “failed to stop at
the intersection of a through street in order to prevent the accident in violation of State law,”
Defendant Flanagan “made a left turn in front of oncoming traffic from a side onto a through
street in violation of State law,” Defendant Flanagan “did fail to yield to oncoming traffic in
violation of State law,” and Defendant Flanagan “did fail to use turn signal in making a left turn
in violation of State law.”
To state a claim for negligence, Plaintiff “must plead facts supporting each of the
following elements: (1) the defendant had a duty to protect the plaintiff from injury; (2) the
defendant breached that duty; and (3) the breach was the proximate cause of plaintiff’s injury.”
Whipple v. Allen, 324 S.W.3d 447, 451 (Mo. Ct. App. 2010) (citing Stein v. Novus Equities Co.,
284 S.W.3d 597, 604-05 (Mo. Ct. App. 2009)). Plaintiff has failed to plead facts supporting the
final element because Plaintiff has not alleged any injury. Plaintiff’s negligence claim against
Defendant Flanagan will be dismissed without prejudice for failure to state a claim.
C.

Defendant Progressive’s Motion to Dismiss

Defendant Progressive asserts Plaintiff’s claim against it must be dismissed because an
injured party cannot proceed against an insurance company providing liability coverage for the
insured who allegedly caused the harm [ECF No. 8]. Defendant Progressive states it is the
insurer for Defendant Flanagan. Plaintiff’s claim is Defendant Progressive “did willfully refuse
to pay for damages to Plaintiff’s vehicle.”
“The general rule is that an injured party cannot proceed in a direct action against an
insurance company providing liability coverage for an insured who allegedly caused the harm
sustained by the claimant.” Grisamore v. State Farm Mut. Auto. Ins. Co., 302 S.W.3d 570, 575

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(Mo. Ct. App. 2010) (citing Desmond v. Am. Ins. Co., 786 S.W.2d 144, 145 (Mo. Ct. App.
1989)).13 As Plaintiff has not asserted any other claims against Defendant Progressive besides a
refusal to pay for damages to Plaintiff’s vehicle, Plaintiff has failed to state a claim against
Defendant Progressive upon which relief can be granted and Plaintiff’s claim will be dismissed
without prejudice.
Accordingly,
IT IS HEREBY ORDERED that Defendants City of La Grange, Dale McNelly, Jeff
Curl, and Josh Davis’s Motion to Dismiss Plaintiff’s Petition [ECF No. 16] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Jerry Brandt’s claims of violations of Fourth
and Fourteenth Amendments, and Plaintiff’s negligence claim against Defendants City of La
Grange, Dale McNelly, Jeff Curl, and Josh Davis shall be DISMISSED, without prejudice.
IT IS FURTHER ORDERED that Plaintiff Jerry Brandt’s remaining claims against
Defendants City of La Grange, Dale McNelly, Jeff Curl, and Josh Davis shall be DISMISSED,
with prejudice.
IT IS FURTHER ORDERED that Defendant Julie K. Flanagan’s Motion to Dismiss
[ECF No. 18] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Jerry Brandt’s claim against Defendant Julie
K. Flanagan shall be DISMISSED, without prejudice.
IT IS FURTHER ORDERED that Defendant Progressive Casualty Insurance
Company’s Motion to Dismiss [ECF No. 8] is GRANTED.

13

The exception to this rule is the right of a third party to sue an insurance company for
negligent misrepresentation which is not at issue in this case. Grisamore, 306 S.W.3d at 574.
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IT IS FURTHER ORDERED that Plaintiff Jerry Brandt’s claim against Defendant
Progressive Casualty Insurance Company shall be DISMISSED, with prejudice.
Dated this 7th day of April, 2015.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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