MILLER, P. J., DOYLE and REESE, JJ.
appeal arises from a suit initially filed in magistrate court
by a subcontractor for nonpayment of services. The general
contractor's commercial general liability
("CGL") insurer, Auto-Owners Insurance Company
(hereinafter "Auto-Owners") seeks review of the
denial of several of its motions, including a motion to
dismiss based on lack of privity of contract. For the reasons
set forth, infra, we reverse the denial of Auto-Owners'
motion to dismiss and affirm the denial of Auto-Owners'
motion for attorney fees.
pro se, the subcontractor, Jerod Tracy d/b/a Tracy Transport,
LLC ("Tracy"), filed a breach of contract action in
magistrate court, alleging that he had entered into a
contract with the general contractor, Holli Bortz d/b/a JL
Hardscapes ("Bortz"), to do certain work at a
residence. According to the complaint, after Tracy completed
the agreed-upon work, Bortz refused to pay the amount due.
Seeking payment in full, Tracy's suit named as defendants
"Holli Bortz d/b/a JL Hardscapes, " as well as the
owner and the occupier of the residential property.
the magistrate court entered a default judgment against
"Holli Bortz d/b/a JL Landscapes, " the court
transferred the suit to superior court. Tracy, represented by
counsel, then added as defendants on his breach of contract
claim: "James Lally, " "James Lally d/b/a JL
Hardscapes, " and Auto-Owners. Tracy identified James
Lally as "now known to be d/b/a JL Hardscapes, "
and thereupon asserted a theory that "James Lally and
James Lally d/b/a JL Hardscapes held himself out to be an
authorized agent and co-owner for the company, JL Hardscapes,
and inasmuch, contracted with sub-contractors, [such] as
[Tracy]." Tracy identified Auto-Owners as the CGL
insurer of Lally and JL Hardscapes, and thereupon claimed
that the insurance company also owed him the damages sought
on his breach of contract claim. These damages included lost
wages and other income, the loss of his dump truck, and the
loss of his business, due to the nonpayment of services.
amended complaint incorporated a joint motion to implead
third parties, along with supporting brief and
exhibits. Exhibit O to the motion is a
"Certificate of Liability Insurance" for a CGL
policy, listing the insured as "James Lally, dba JL
Hardscapes." Exhibit T is designated as
"Acknowledgment of Notice of Claim from Auto-Owner's
Insurance to Plaintiff's counsel" and includes a
declaration page designating the insured ("James Lally
dba JL Hardscapes") as an "individual."
filed a motion to dismiss for failure to state a claim,
arguing that, because Tracy lacked privity of contract with
Auto-Owners and had not obtained a monetary judgment against
its insured, Lally, Tracy could not maintain a direct action
against Auto-Owners. Auto-Owners also filed a motion for
summary judgment, additionally arguing that the policy did
not provide coverage for the type of damages that Tracy
sought; a motion to quash Tracy's subpoena duces tecum;
and a motion for attorney fees.
oral argument, the trial court denied the motions. Following
the grant of its application for interlocutory review,
Auto-Owners appeals from the orders denying all four motions.
appellate court reviews de novo a trial court's ruling on
a motion to dismiss. A motion to dismiss may be granted where
a complaint lacks any legal basis for
recovery." "[W]e view all of the plaintiff's
well-pleaded material allegations as true, and view all
denials by the defendant as false, noting that we are under
no obligation to adopt a party's legal conclusions based
on these facts." With these guiding principles in mind, we
turn now to the specific claims of error raised by
Auto-Owners contends that the trial court erred in denying
its motion to dismiss because a non-insured plaintiff cannot
bring a direct action against a liability insurer absent an
unsatisfied judgment against the insured or a statute or
policy provision allowing such suit. We agree.
a party not in privity of contract may not bring a direct
action suit against the liability insurer of the party
alleged to have caused damage absent an unsatisfied judgment
against the insured, legislative mandate, or as permitted by
a provision in the insurance policy in
amended complaint does not allege privity of contract between
Tracy and Auto-Owners; in fact, the complaint acknowledges
that Tracy was not an insured of Auto-Owners or otherwise a
party to a contract with Auto-Owners. Second, Tracy has not shown
that he has obtained "an unsatisfied judgment against
the insured."The magistrate court entered a
default judgment against "Holli Bortz d/b/a J L
Landscapes." However, according to the declarations
page, incorporated in the amended complaint, the policy named
"James Lally, dba JL Hardscapes" as the insured.
Because Tracy failed to demonstrate that "Holli Bortz
d/b/a J L Landscapes" was an insured of Auto-Owners at
the time his claim arose, Tracy's reliance upon the
default judgment entered against "Holli Bortz d/b/a J L
Landscapes" is unavailing.
trade name is merely a name assumed or used by a person
recognized as a legal entity. A judgment against one in an
assumed or trade name is a judgment against him as an
individual. An undertaking by an individual in a fictitious
or trade name is the obligation of the
individual." In light thereof, the default judgment
against "Holli Bortz d/b/a J L Landscapes" is not
an "unsatisfied judgment against the
Tracy makes no assertion that his direct action against
Auto-Owners is specifically authorized by statute. And
fourth, Tracy has cited no provision of the policy in his
amended complaint that specifically permits him to bring a