MEMORANDUM DECISION
Case Summary
[1] Blands, LLC appeals the trial courts dismissal of its complaint against Shelter Mutual Insurance Company under Indiana Trial Rule 12(B)(6). We affirm.
Facts and Procedural History
[2] Blands is a towing company. In November 2019, law enforcement called Blands to the scene of a two-vehicle accident in Bloomington. Blands removed Elizabeth Colsons Ford Explorer from a ditch and, after clearing the roadway of debris, transported the Explorer to a storage facility where it was held for eighty days. Blands sent Colson two invoices for its services, totaling $3,322.20. Colson submitted the invoices to her auto insurer, Shelter. Shelter denied the claim, explaining that Colsons policy did not cover “collision[.]” Appellants App. Vol. II pp. 11, 48.
[3] In January 2021, having not received any payment, Blands filed suit against Colson to collect on the invoices. The trial court, by agreement of the parties, entered judgment against Colson and in favor of Blands for $3,322.20 plus $206.07 in prejudgment interest. See Cause No. 53C04-2101-SC-89.
[4] As of October 2021, Blands had only received $600 from Colson, so it filed suit directly against Shelter. Blands sought a declaratory judgment that Colsons towing charges are covered by her policy with Shelter as well as an award of damages to cover the charges. Blands attached a copy of the policy to its complaint. Shelter moved for dismissal under Trial Rule 12(B)(6) for failure to state a claim, asserting that the policy “did not include collision or comprehensive coverage that would pay for the invoice[.]” Appellants App. Vol. II p. 54. The trial court granted Shelters motion and dismissed the complaint “with prejudice.” Id. at 8.
[5] Blands now appeals.
Discussion and Decision
I. Dismissal
[6] Blands argues the trial court erred by granting Shelters motion to dismiss. A civil action may be dismissed under Trial Rule 12(B)(6) for “failure to state a claim upon which relief can be granted.” A 12(B)(6) motion “tests the legal sufficiency of the plaintiffs claim, not the facts supporting it.” Residences at Ivy Quad Unit Owners Assn, Inc. v. Ivy Quad Dev., LLC, 179 N.E.3d 977, 981 (Ind. 2022) (quotation omitted). To overcome a 12(B)(6) motion, the complaint must allege facts that demonstrate the “possibility of relief.” Id. at 980. We review a 12(B)(6) dismissal de novo. Id. at 981. We take the alleged facts stated in the complaint as true, and we view the complaint “in the light most favorable to the nonmoving party,” construing “every reasonable inference in that partys favor.” Id. However, dismissal is proper if the complaint fails to allege any facts that could give rise to relief. Id. at 982. A written instrument attached to a complaint, such as an insurance policy, is considered part of the complaint. See Ind. Trial Rule 10(C); Graves v. Kovacs, 990 N.E.2d 972, 976 (Ind. Ct. App. 2013).
[7] Blands contends that the trial court erred by dismissing its complaint because “it is not possible to conduct a review of the Auto Policy at the pleadings stage” and “[t]he parties may address the evidentiary issues through discovery.” Appellants Br. p. 16. However, it fails to direct us to any specific provision of the policy that could even potentially cover Colsons towing and storage bill. It notes broadly that Colsons policy includes “coverage for property damage.” Id. at 12, 13. This seems to refer to “COVERAGE B – PROPERTY DAMAGE LIABILITY COVERAGE.” See Appellants App. Vol. II pp. 26-29. But again, Blands cites no language in that part of the policy that might apply here. The policy defines “property damage,” in relevant part, as “demonstrable physical damage to real or personal property.” Id. at 22. Blands did not suffer any physical damage to its real or personal property. It only provided towing services, and it has identified no part of Colsons policy that could possibly provide coverage for those services.
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[8] Blands also contends that even if the terms of the policy dont provide coverage, Shelter should have to pay the invoices because of Indianas emergency-vehicle towing statute, Indiana Code section 24-14-3-3. That statute provides that a towing company can be called to the location of a disabled motor vehicle and that “[t]he fee charged by the towing company may not be more than normally charged by the towing company for the service provided.” Ind. Code § 24-14-3-3. While the statute permits a towing company to charge a fee, it doesnt say anything about the drivers or owners insurer having to pay the fee.
[9] Finally, Blands argues, “It would be illogical to interpret the legislatures intent of the financial responsibility law in a manner that would allow the insurer to avoid paying to remove a vehicle from a public roadway.” Appellants Br. p. 14. However, the only “financial responsibility law” it cites is Indiana Code section 9-25-4-4. That statute provides, generally, any motor-vehicle liability policy “must contain the terms, conditions, and provisions required by statute[.]” I.C. § 9-25-4-4. But it contains no specific coverage requirements, let alone a requirement for coverage of towing costs.
[10] The trial court did not err by dismissing the complaint for failure to state a claim.
II. Dismissal With Prejudice
[11] In the alternative, Blands contends the trial court erred by dismissing its complaint “with prejudice.” We agree. Trial Rule 12(B) provides, in part, “When a motion to dismiss is sustained for failure to state a claim under subdivision (B)(6) of this rule the pleading may be amended once as of right pursuant to Rule 15(A) within ten [10] days after service of notice of the courts order sustaining the motion and thereafter with permission of the court pursuant to such rule.” In other words, an initial dismissal under Rule 12(B)(6) is necessarily without prejudice since the plaintiff has the right to file an amended complaint. In re Scott David Hurwich 1986 Irrevocable Tr., 59 N.E.3d 977, 984 (Ind. Ct. App. 2016).
[12] Even so, we will find such an error harmless if the appellant fails to show how it would amend its complaint to avoid another dismissal. See Baker v. Town of Middlebury, 753 N.E.2d 67, 74 (Ind. Ct. App. 2001), trans. denied; see also Saylor v. Reid, 132 N.E.3d 470, 474 (Ind. Ct. App. 2019), trans. denied. Blands argues “[t]he trial courts order is inherently prejudicial and prevented Blands from receiving any relief on the merits,” Appellants Reply Br. pp. 6-7, but it does not specifically tell us how it would amend its complaint. Therefore, the trial courts error was harmless.
[13] Affirmed.
FOOTNOTES
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. Blands also contends it is a third-party beneficiary to Colsons policy with Shelter. Even if this is true, that status matters only if the policy covers towing costs. As just discussed, Blands has identified no part of the policy that might provide such coverage.
Vaidik, Judge.
Crone, J., and Altice, J., concur.