UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION 

AMY JO REINHOLTZ, as Personal )

Representative of the Estate of )

MARVIN REINHOLTZ, III (deceased), )

)

Plaintiff, )

)

v. ) Cause No.: 2:15-CV-309

)

ISMAEL FLORES, RP TRUCKING )

SOLUTIONS, INC., EIC TRANSPORT, )

INC., JAMES BAUER, and UPS )

GROUND FREIGHT, INC., )

)

Defendants. )

OPINION AND ORDER

This matter is before the court on the motion to dismiss filed by Defendants UPS Ground

Freight, Inc., and James Bauer (docket entry at 6). The Plaintiff, Amy Jo Reinholtz filed a

response in opposition to the motion (DE 14), as did Defendants Flores, RP Trucking, and EIC

Transport (DE 13). UPS and Bauer filed a reply brief (DE 15). For the reasons discussed below,

the motion to dismiss is GRANTED and the Plaintiff’s claims against UPS Ground Freight, Inc.,

and James Bauer are DISMISSED WITH PREJUDICE. The court’s ruling on the motion to

dismiss does not preclude the nonmovants from asserting a nonparty claim against Bauer or UPS

Ground Freight for purposes of allocation of fault pursuant to the Indiana Comparative Fault

statute. The Plaintiff’s claims against Defendants Flores, RP Trucking, and EIC Transport are

unaffected by this Order and remain pending.
DISCUSSION

Amy Jo Reinholtz filed this lawsuit to recover damages for the alleged wrongful death of

her husband, Marvin. On January 9, 2015, Marvin Reinholtz was driving a UPS semi-tractor 1

eastbound on Interstate 80 in Lake County, Indiana. According to the Complaint, Reinholtz’s

truck was parked “when [Defendant Flores] negligently drove a semi-tractor into the parked

semi-tractor of Marvin Reinholtz, decedent. The decedent died as a result of this crash.”

Complaint, p. 2, ¶ 9. The Plaintiff alleges a negligence cause of action against Flores and alleges

that his employers, RP Trucking and EIC Transport, are also liable for damages under a theory of

respondeat superior. Complaint, ¶¶ 17 and 21. The Plaintiff also alleges a negligence cause of 2

action against Bauer and his employer, UPS Ground Freight. Id., ¶¶ 24-33. According to the

Plaintiff, Bauer “negligently drove in such a manner that caused a collision between the semitractor driven by . . . Flores, and the parked semi-tractor of Marvin Reinholtz[.]” Id., ¶ 24. In

other words, the allegations indicate that this was a “multiple-party motor vehicle collision[.]”

Defendants’ Response in Opposition (DE 13), p. 1. This fact is significant, as we will see.

 Reinholtz originally filed her suit in the Circuit Court of Lake County, Indiana. The 1

Defendants removed the case to this court based on diversity jurisdiction. See Complaint (DE 5)

and Notice of Removal (DE 1).

 It is not clear from the Complaint or the parties’ briefs who actually employed. The 2

Complaint asserts claims against both RP and EIC, based on the doctrine of respondeat superior,

alleging that Flores was an “employee, agent, or servant of RP Trucking” and an “employee,

agent, or servant of EIC Transport[.]” Complaint, ¶¶ 16 and 20. Flores’ Answer to the Complaint

also does not make clear who his employer was at the time of the accident. See Answer of Flores,

RP and EIC (DE 9), p. 8. In any event, the answer is not pertinent to the motion to dismiss.

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In their motion to dismiss, Bauer and UPS advance two theories. First, they contend that

“[s]tate substantive law, namely, the Indiana Worker’s Compensation Act, denies Plaintiff a

remedy for the causes of action asserted in her Complaint by virtue of its exclusive remedy

provision, which covers UPS Freight and Bauer.” Motion to Dismiss, p. 1. UPS and Bauer argue

that “[n]ot pled in Plaintiff’s Complaint, but known to Plaintiff, is the fact that Plaintiff’s

decedent was an employee of United Parcel Service, Inc., acting in the course and scope of his

employment, at the time of the accident. Immediately before the accident, when he pulled over

on Interstate 80, and at the time of the accident, the decedent was operating a United Parcel

Service, Inc.-owned tractor and hauling loaded double trailers on United Parcel Service, Inc.’s

behalf from Chicago, Illinois, to Elkhart, Indiana. United Parcel Service, Inc., and UPS Freight

share a parent/subsidiary relationship.” Defendants’ Memorandum in Support of Motion to

Dismiss, pp. 2-3. As a result, contend Bauer and UPS, the Indiana Worker’s Compensation

statute provides the exclusive remedy and precludes the Plaintiff’s common law negligence

claims against them. Id., pp. 5-6 (citing Evans v. Yankeetown Dock Corp., 491 N.E.2d 969 (Ind.

1986); Preston v. Chancellor’s Learning Sys., Inc., 2009 WL 1583464, at *4 (S.D. Ind. June 4,

2009); Rassbach v. Alcala, 775 N.E.2d 353 (Ind.Ct.App. 2002)).

UPS and Bauer also argue that the “Plaintiff’s Complaint fails to contain specific factual

allegations [to support] her negligence claim against Bauer . . .” or her “claim against UPS

Freight . . . based on respondeat superior[.]” and so her Complaint should be dismissed pursuant

to Fed.R.Civ.P. 12(b)(6). Id., p. 5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007);

Ashcroft v. Iqbal, 556 U.S. 662 (2009); McGrath v. Everest Nat’l Ins. Co., 625 F.Supp.2d 660

(N.D. Ind. 2008)). Bauer and UPS contend that the Plaintiff’s Complaint, as it relates to them,

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contains only “‘[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements,’” and therefore must be dismissed pursuant to Rule 12(b)(6). Id., p. 4

(quoting Iqbal, 556 U.S. at 678).

The first of these substantive arguments appears quite solid and the second only slightly

less so. But in the end the court need not address them on their merits, since neither the Plaintiff

nor the “Flores Defendants” (i.e., Flores, RP and EIC) contest them. That is to say, their

respective briefs in “opposition” to the motion to dismiss don’t really oppose it at all (although

they do “object” to the motion, as discussed below). 

In her response brief, Reinholtz simply states that she “hereby joins and adopts

Defendants Flores, RP Trucking Solutions, Inc., and EIC Transport, Inc.’s express objection to

the dismissal of Defendants James Bauer and UPS Ground Freight, Inc.” Plaintiff’s Response, p.

2. The brief does not address the issues raised in the motion, so we turn to the brief of the Flores

Defendants. In their brief, they explain that they “preserved their ability to assert comparative

fault against James Bauer and UPS Ground Freight, Inc., and preemptively named each as ‘nonparty’ defendants.” Defendants’ Response, p. 2 (citing Defendants’ Answer to Complaint (DE

7)). The Flores Defendants point out that the Indiana Comparative Fault statute, I.C. § 34-51-2-1

et seq., provides that, even if the Plaintiff’s claims against Bauer and UPS Freight are dismissed,

they (meaning the Flores Defendants) can still assert a non-party defense against Bauer and UPS

Freight for purposes of allocating damages. Id., pp. 3-4. The Flores Defendants quote the

following portion of the applicable statute:

The jury shall determine the percentage of fault of the claimant, of the defendants,

and of any person who is a nonparty. The jury may not be informed of any

immunity defense that might be available to a nonparty. In assessing percentage of

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fault, the jury shall consider the fault of all persons who caused or contributed to

cause the alleged injury, death, or damage to property . . . regardless of whether

the person was or could have been named as a party.

Id., p. 3 (quoting I.C. § 34-51-2-8(b)). The Defendants state that “there is a question as to the

allocation of fault in this case and this issue is for the jury to resolve.” Id. Finally, the Flores

Defendants note that “[a] party-defendant need only: (1) object to a dismissal; or (2) claim that a

party-defendant should remain for purposes of allocation of fault in order to preserve a nonparty

defense.” Id., pp. 4-5 (citing Bowles v. Tatom, 546 N.E.2d 1188, 1190 (Ind. 1989); Bloemaker v.

Detroit Diesel Corp., 687 N.E.2d 358, 360 (Ind. 1997); Nationwide Ins. Co. v. Parmer, 958

N.E.2d 802 (Ind.Ct.App. 2011)).

The Flores Defendants conclude by stating that “[t]o the extent that [Bauer and UPS

Freight] are dismissed, Defendants, Flores, RP Trucking Solutions, Inc., and EIC Transport, Inc.,

request that fault continue[] to be allocated to them pursuant to the non-party statute and that the

jury not be instructed as to any immunity afforded to them.” Id., p. 6.

In their reply brief, Bauer and UPS Freight argue that “[a]s neither the Plaintiff nor [the]

Flores Defendants have substantively opposed Defendants’ Motion to Dismiss and have only

formally objected for the sole purpose of preserving their right to assert a non-party defense in

accordance with the Indiana Code section on comparative fault, Defendants’ Motion to Dismiss

should be granted and Plaintiff’s Complaint as against [Bauer and UPS Freight] should be

dismissed with prejudice.” Defendants’ Reply, p. 2.

So all of this boils down to a simple (but very important) procedural point. The movants

contend that the Plaintiff’s claims are barred by the Indiana Worker’s Compensation statute, and

neither the Plaintiff nor the Flores Defendants contest that. Their “opposition” to the motion is

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based not on the substantive arguments presented, but on their desire to protect their right to have

a jury determine whether Bauer or UPS Freight should be held liable for all or part of the

damages sought by the Plaintiff. And, while the Plaintiff and the Flores Defendants do not

challenge the movants’ substantive claims, the movants’ likewise do not contest the fact that,

even if the claims against them are dismissed, they might still be on the hook for damages based

on the Indiana comparative fault statute. Stated even more simply, the Plaintiff and the Flores

Defendants do not oppose dismissal, so long as their right to assert a nonparty comparative fault

claim against Bauer and UPS Freight is not infringed. 

CONCLUSION

For the reasons discussed above, the Motion to Dismiss filed by Defendants James Bauer

and UPS Ground Freight, Inc., is GRANTED and the Plaintiff’s claims against these defendants

are DISMISSED WITH PREJUDICE. The court’s ruling on the motion to dismiss does not

preclude the nonmovants from asserting a nonparty claim against Bauer or UPS Ground Freight

for purposes of allocation of fault pursuant to the Indiana Comparative Fault statute. The

Plaintiff’s claims against Defendants Flores, RP Trucking, and EIC Transport are unaffected by

this Order and remain pending.

Dated: December 8, 2015.

_______________________ /s/ William C. Lee 

William C. Lee, Judge

United States District Court

Northern District of Indiana

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