726 F.2d 400
INLAND CONTAINER CORPORATION, Appellant,
v.
The CONTINENTAL INSURANCE COMPANY, Appellee.
No. 83-1843.
United States Court of Appeals,
Eighth Circuit.
Submitted Jan. 19, 1984.
Decided Jan. 25, 1984.
Ben Core, Daily, West, Core, Coffman & Canfield, Fort Smith, Ark., for appellant.
E.C. Gilbreath, Jones, Gilbreath & Jones, Fort Smith, Ark., for appellee.
Before JOHN R. GIBSON, Circuit Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.
PER CURIAM.
Inland Container Corporation appeals from an order of the district court dismissing its complaint against Continental Insurance Company for failure to state a claim. Inland contracted with Matson to renovate an industrial plant and Matson agreed to indemnify Inland. Continental was Matson's insurer. The dispute arose out of injuries received by Paul Eldridge, which resulted in payment by Inland's insurer to Eldridge in settlement of the claim. Inland argues that the district court erred in sustaining the motion to dismiss not only on substantive legal grounds but because the district court considered materials outside the pleadings. We conclude that the district court's opinion is based upon a number of facts that were not pleaded and, accordingly, we remand to the district court for further proceedings.
Inland's amended complaint asserts a claim based on the provisions of the indemnity contract and the failure of Continental to provide insurance coverage to Inland as a result of the Eldridge lawsuit. The complaint is some fourteen pages in length with the insurance policy attached and incorporated by reference, but it is as notable for what is not plead as for what is plead. Portions of the contract between Inland and Matson are set out in full, but the contract as a whole is not attached to the complaint, and it is evident that only those paragraphs plaintiff considered to be material are in the complaint. The Eldridge lawsuit is referred to most generally, and the complaint makes a conclusory allegation that Inland was claimed to be liable as a result of injuries received by Eldridge while he was in the employ of Matson and engaged in renovating Inland's industrial plant. The claims of Eldridge, his wife and an intervening insurance carrier, Niagara Fire Insurance Company, were alleged to be "claims coming within the indemnity paragraph of the contract" referred to in the complaint, and claims "coming within the contractual liability insurance" issued by Continental.
The district court's order contains facts that are not pleaded in Inland's complaint. The order recites that Eldridge was injured by an Inland employee, and that as a result thereof he filed a suit against not only Inland but a manufacturer. It states that Inland had purchased its own comprehensive general liability policy from Aetna. It also recites that Inland had sued Matson and later dismissed this action. The complaint does not contain such allegations.
The order sets out in full the provisions of paragraph 11.2.1 of the construction contract between Matson and Continental but this paragraph is not referred to or set out in the complaint and, as we have stated, the full text of the contract was not attached to the complaint. The court's opinion turns on the provisions of paragraph 11.2.1.
Under Rule 12(b), Fed.R.Civ.P., a motion to dismiss for failure to state a claim upon which relief can be granted shall be treated as one for summary judgment if matters outside the pleadings are presented to and considered by the court. The rule provides specifically, however, that in this event all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56, Fed.R.Civ.P.
We think it evident that the district court considered matters outside the complaint and did not follow the procedure required in Rule 12(b) to give plaintiff notice that such matters would be considered as contemplated by Rule 56. Therefore, we must vacate the district court's order and remand for proceedings consistent with the requirements of Rule 12(b). See Woods v. Dugan, 660 F.2d 379 (8th Cir.1981).
The district court ruled that Inland was not protected by the indemnity agreement nor entitled to coverage from Continental and granted Continental's motion to dismiss. The Eldridge lawsuits, in one of which Niagara had intervened, were both filed in the Western District of Arkansas. It is understandable that the district court may have considered the substance of the pleadings filed in other related cases in considering the motion to dismiss filed by Continental.
It may well be that on remand, after the record has been more fully developed, the district court will reach the same conclusion. We should not reach the merits, however, until the record has been more fully developed.
The parties have spent a considerable portion of their brief arguing whether the briefs themselves and the designated record contain matter outside the record. This court, as well as the district court, may consider cases only on the record. The parties will have an opportunity to fully develop the record upon remand and the various arguments asserted, as well as the supplemental material filed while the case was under advisement, may be properly directed to the district court for its consideration.