IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

OPIO HENDERSON d/b/a )

SERENITY LANDSCAPE )

& DESIGN, INC., )

)

Plaintiff, )

) CAUSE NO. 2:15-CV-352

vs. )

)

NATIONWIDE MEMBER )

SOLUTIONS AGENCY INC. )

d/b/a NATIONWIDE SALES )

SOLUTIONS, INC., and )

NATIONWIDE MUTUAL FIRE )

INSURANCE CO., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss Count

IV of Plaintiff’s Complaint, filed by Defendants, Nationwide Member

Solutions Agency Inc. d/b/a Nationwide Sales Solutions, Inc. and

Nationwide Mutual Fire Insurance Company, on October 14, 2015 (DE

#12). For the reasons set forth below, the motion (DE #12) is

GRANTED. Count IV, Paragraphs 28-34 of Plaintiff’s complaint, is

HEREBY DISMISSED WITH PREJUDICE. Counts I-III and V-VII REMAIN

PENDING. 

BACKGROUND

On August 13, 2015, Plaintiff, Opio Henderson d/b/a Serenity
Landscape & Design, Inc. (“Plaintiff”), filed a complaint against

Nationwide Member Solutions Agency Inc. (“Nationwide Members”) and

Nationwide Mutual Fire Insurance Company (“Nationwide Mutual”) in

the Circuit Court of the State of Indiana, Lake County, Cause No.

45D02-1508-CT-0131. Pursuant to 28 U.S.C. §§ 1332(a), 1441, and

1446, Defendants removed the state court action to this Court on

September 11, 2015.

Count IV, paragraphs 28-34, alleges that Defendants violated

Indiana’s Unfair Claims Settlement Practices Act, I.C. 27-4-1-1 et

seq. (“the Act”), and that Defendants are liable to Plaintiff for

violating the Act. (Compl. ¶¶ 28-34.) However, in the instant

motion, Defendants contend Plaintiff cannot assert a claim against

Defendants under the Act because it does not create a private cause

of action. (DE #13). Plaintiff filed a response on October 28,

2015 (DE #17), conceding that Defendants correctly recited the law,

and that Count IV should be dismissed. 

DISCUSSION

Federal Rule of Civil Procedure 12(b)(6) allows a complaint to

be dismissed if it fails to “state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). In order to survive a Rule

12(b)(6) motion, the complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face’.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

2
(2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). All well-pleaded facts must be accepted as true, and all

reasonable inferences from those facts must be resolved in the

plaintiff’s favor. Pugh v. Tribune Co., 521 F.3d 686, 692 (7th

Cir. 2008). However, plaintiffs may plead themselves out of court

if the complaint includes allegations that show they cannot

possibly be entitled to the relief sought. McCready v. eBay, Inc.,

453 F.3d 882, 888 (7th Cir. 2006).

The Act provides that the article does not create a cause of

action other than an action by: “(1) the commissioner to enforce

his order; or (2) a person, as defined in section 1 [IC 27-4-1-1]

of this chapter, to appeal an order of the Commissioner.” I.C. 27-

4-1-18. This Court has previously addressed this identical issue

and concluded that insureds, like Plaintiff, cannot pursue a

private cause of action against their insurers for alleged

violations of the Act. See Dietrich v. Liberty Mut. Ins. Co., 759

F. Supp. 467, 470 (N.D. Ind. 1991) (“Thus, chapter 1 creates a

cause of action only for the Commissioner of Insurance or for

entities in the business of insurance who wish to appeal an order

of the commissioner, not for private individuals such as

[plaintiff].”). Plaintiff concedes this law is accurate, and

admits that Count IV should be dismissed. (DE #17.) Consequently,

Count IV, Paragraphs 28-34 of Plaintiff’s complaint, is DISMISSED

WITH PREJUDICE. 

DATED: November 3, 2015 /s/ RUDY LOZANO, Judge

United States District Court

3