UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

PETER FERRARO, )

)

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-396-TLS

)

JOHN A. HUMPHREY, AMERICAN )

NATIONAL SERVICES CORP., )

MASCO CORP., and OLD REPUBLIC )

INSURANCE COMPANY, )

)

Defendants. )

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. 
2

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.

BACKGROUND

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 Policy2 (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. 

 1 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. 2 Policy No. 18398.
3

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].
4

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.

DISCUSSION

A. 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).

B. Analysis

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 
5

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.

1. 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 
6

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

 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 

information.

(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 

following:

(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 

definitions:

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 
7

(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 

is brought.

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.

(Id.)
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2. Default Judgment

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 
9

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.

3. 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
10

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 

declare that

(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 
11

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.

4. Wilton–Brillart Abstention

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 

removed).

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 
12

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 

court.
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C. Amended Complaint

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 
14

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 
15

limitations would be easily nullified.” Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 

2000).

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

CONCLUSION

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

 4 The Court does not reach the question of whether amending the Complaint at this stage would 

be unduly prejudicial to the Defendants.