October 11, 2017

Dismissal Under Rule 9.2(A) Improper In Suit By Third-Party Contractual Beneficiaries; Tucker v. Tom Raper

Category: Indiana Law Review | Author: | Share:

Trial Rule 9.2(A) requires that any pleading “founded on a written instrument” must be filed with that written instrument. The question in this case is whether claims by alleged third-party beneficiaries must include a copy of a written contract. The Court held that they do not.

The Tuckers owned an RV, which they insured through American Family. Their RV was damaged by lightning, and American Family contacted Tom Raper about repairing it. Raper agreed to do the repairs, and delivered the RV to Clarke to perform some additional transmission work.

While the RV was in Clarke’s care and control, it was involved in an accident and damaged. Raper agreed to repair the damage, but the Tuckers were not satisfied with the repairs. Eventually, the RV was declared a total loss.

The Tuckers sued Raper and Clarke, alleging that they were third-party beneficiaries of American Family’s contracts with Raper and Clarke. The defendants moved to dismiss, arguing that the Tuckers’ claims must be dismissed because they did not comply with Rule 9.2(A). The trial court gave the Tuckers a chance to amend their complaint, which they did, but the Tuckers still did not attach copies of the written contracts. The trial court dismissed the case, and the Tuckers appealed.

On appeal, Raper and Clarke defended the trial court’s decision by arguing that someone can only base a third-party beneficiary claim on a written contract, so the Tuckers were required to attach such a contract to their complaint. But while the cases dealing with such a claim had been based on written contracts, there was “nothing” in the relevant cases which “forecloses the possibility that two or more parties may orally contract with the intent to benefit a third party.”

The Tuckers’ complaint alleged they were third-party beneficiaries of two separate contracts but did not specifically plead the existence of a written contract and their allegations can reasonably be construed as based on oral contracts. Further, as noted above, third-party beneficiary status is not solely dependent upon a written contact. Therefore, we conclude the trial court erred in dismissing the Tuckers’ complaint for failure to comply with Indiana Rule of Trial Procedure 9.2(A).


  1. A third-party beneficiary claim can be based on an oral contract.
  2. A claim should not be dismissed under Rule 9.2(A) for failing to attach a written instrument if the pleading does not specifically state that there was such an instrument.