Anonymous Physician 1 v. White, No. 19A-CT-1262, __ N.E.3d __ (Ind. Ct. App., July 29, 2020).

Pyle, J.

Statement of the Case

In this interlocutory appeal, Anonymous Physician 1 (“Physician”) and Indianapolis Fertility, Inc., d/b/a Reproductive Endocrinology Associates (“Reproductive Endocrinology”) (collectively “Appellants”) appeal the trial court’s order denying their Indiana Trial Rule 12(B)(6) motion to dismiss Matthew White’s (“Matthew”) multi-count complaint. Matthew filed the complaint after he had learned that Physician had used Physician’s own sperm, rather than a medical school resident’s donor sperm, to artificially inseminate Matthew’s Mother, Elizabeth White (“Elizabeth”). As a result of this artificial insemination procedure, Elizabeth became pregnant and gave birth to Matthew. Concluding that Matthew has sufficiently stated breach of contract and tort claims for which relief can be granted, we affirm the trial court’s denial of Appellants’ motion to dismiss.

We affirm.

….

We turn first to Matthew’s breach of contract claim. Appellants argue that Matthew has failed to state a breach of contract claim because he has failed to establish that he was a third-party beneficiary to the contract between Elizabeth and Appellants.

At the outset, we note that because we are reviewing the denial of a Trial Rule 12(B)(6) motion to dismiss, we need not determine whether Matthew was a third-person beneficiary to the contract. Rather, at this point, we look at the allegations in Matthew’s complaint, which we accept as true, to determine whether they establish any set of circumstances under which Matthew would be entitled to relief as a third-party beneficiary and whether they have “stated some factual scenario in which a legally actionable injury has occurred.” Trail, 845 N.E.2d at 134.

Generally, only those who are parties to a contract, or those in privity with a party, have the right to recover under a contract. Flaherty & Collins, Inc. v. BBRVision I, L.P., 990 N.E.2d 958, 971 (Ind. Ct. App. 2013), trans. denied. However, one who is not a party to a contract may enforce its provisions by demonstrating that he is a third-party beneficiary to the contract. Id….

Here, Matthew alleges in his amended complaint that: (1) the contract between Elizabeth and Appellants “was intended to provide [Matthew] the direct benefit of life and/or existence[;]” (2) the contract “imposed a duty on at least one of the parties thereto in favor of [Matthew;]” and (3) “performance of the terms of the contract necessarily rendered a number of tangible direct benefits to [Matthew], including his conception; intrauterine development; birth; and life as a human being.” (App. Vol. 2 at 68). Taking these allegations as true, as we must do when conducting a Trial Rule 12(B)(6) review, Matthew has established a set of circumstances under which he would be entitled to relief as a third-party beneficiary. Matthew has therefore stated a claim for which relief can be granted, and the trial court did not err in denying Appellants’ motion to dismiss Matthew’s breach of contract action.

We next turn to Matthew’s tort claims…

Appellants argue that “Matthew’s tort claims must fail because he was not owed a duty before he was conceived.” (Appellants’ Br. at 38). Again, given our procedural posture of reviewing the denial of a Trial Rule 12(B)(6) motion to dismiss, we need not determine whether Appellants owed Matthew a duty. Rather, at this point, we look at the allegations in Matthews complaint, accepting them as true, to determine whether they establish any set of circumstances under which Matthew would be entitled to relief. See Trail, 845 N.E.2d at 134.

….

Here, in his amended complaint, Matthew alleged that Elizabeth had “presented to and consulted the [Appellants] for artificial insemination” in September 1981, and that “[a]s a result of the insemination procedure performed by [Appellants] [Elizabeth] became pregnant with [Matthew], who was born on November 26, 1982.” (App. Vol. 2 at 64-65). Matthew also alleged that “during that time, [Appellants] had a duty to provide reasonable and appropriate medical care to [Matthew]” and had “failed to use the ordinary skill, care and diligence in their care and treatment of [Matthew].” (App. Vol. 2 at 64, 65). Matthew’s amended complaint also alleged that “[a]ccording to [Appellants’] policies and representations communicated to their patients, including [Elizabeth,] specimens from a single donor were to be used in no more than three successful insemination procedures in a well-defined geographic area. Therefore, specimens from a single donor were not to be used in more than three successful insemination procedures[.]” (App. Vol. 2 at 64). The amended complaint further alleged that this policy “was important to limit the risk of accidental incest resulting from many closely biologically related individuals living near each other and unaware of their biological relationships.” (App. Vol. 2 at 65).

Taking these facts as true and viewing the pleadings with every reasonable inference in Matthew’s favor, we conclude that Matthew has pleaded the operative facts necessary to establish that Appellants owed him a duty of care. See Trail, 845 N.E.2d at 135. In other words, because it does not appear to a certainty on the face of the complaint that Matthew is not entitled to relief, a dismissal of Matthew’s complaint would have been improper. See Bellwether, 87 N.E.3d at 466.

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Conclusion

Matthew has sufficiently stated breach of contract and tort claims for which relief can be granted. Accordingly, the trial court did not err in denying Appellants’ motion to dismiss. [Footnote omitted.]

Affirmed.

May, J., and Crone, J., concur.

 

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