BENTON – U.S. District Judge Staci Yandle postponed trial of an insurance dispute from August to December because the coronavirus would keep a witness from testifying.
She granted a continuance on July 8, after United Fire and Casualty advised her that the virus restricted the travel of expert Allan Windt.
Yandle had denied a continuance in May, finding she couldn’t determine whether the virus would prevent travel in August.
Thiems Construction sued United Fire in St. Clair County circuit court in 2015, over a verdict in a Madison County case that started in 2010.
Jurors found that negligent construction of a subdivision north of Edwardsville spoiled a lake of four acres belonging to Fred and Jaunita Steinkuehler.
Jurors awarded $765,000 in compensatory damages against Thiems and developers, and $765,000 in punitive damages against Thiems.
United Fire paid the compensatory damages but not the punitive damages.
Owner Gary Thiems paid the punitive damages with a check he drew from a personal line of credit at Bank of Edwardsville.
Then he and his business sued United Fire, claiming it could have settled claims against them for $350,000.
His lawyer Jon Rosenstengel claimed United Fire operated with a conflict of interest it should have disclosed.
United Fire removed the suit to district court, asserting diversity jurisdiction as an Iowa business.
The clerk assigned current Chief Judge Nancy Rosenstengel, spouse of plaintiff’s counsel, who recused herself.
The clerk assigned Yandle.
Gary Thiems died in 2016.
In 2018, former magistrate judge Donald Wilkerson found statements from mediation of the underlying case discoverable.
He waived confidentiality for all who participated including the mediator, former Madison County judge Dan Stack.
United Fire counsel John Schultz of Kansas City moved for summary judgment in 2019.
He wrote that United Fire advised Thiems its policy didn’t cover punitive damages, and Thiems engaged its own counsel for that part of the case.
Jon Rosenstengel responded that in 2012, Thiems’s lawyer demanded that United Fire meet the current demand of the plaintiffs at $350,000.
He quoted the lawyer stating, “I do not believe that my client should be exposed to this liability due to the insurance company’s failure to settle.”
“United Fire provided a less than vigorous defense which resulted in a substantial portion of the damages being shifted to Thiems,” he wrote.
Then he moved for summary judgment awarding more than $1 million in compensatory damages and limiting trial to punitive damages.
Yandle had set trial to start last November, but in October she granted a joint motion for continuance and set it this February.
United Fire asked for a hearing on summary judgment motions and she denied it, stating she’d resolve them as soon as practicable.
Ten days before the trial date, she vacated the date and set trial Aug. 17.
In May, United Fire moved to continue it due to restrictions on Windt’s travel.
Schultz wrote that his attendance was critical due to the complexity of the issues.
Yandle denied the motion and told Schultz he could file another one 30 to 45 days before trial.
She wrote that United Fire preferred live testimony but that, “the reality of circumstances may outweigh that preference.”
Schultz filed another motion 41 days before trial, with more detail.
He wrote that the pandemic restricted Windt, “given the risks to his own health and safety.
“Additionally, Mr. Windt has advised that his wife has a history of respiratory illnesses that makes her particularly vulnerable to the virus, further precluding his availability to appear and testify at trial.”
He wrote that Windt, as rebuttal expert, would be unable to observe live trial testimony of Thiems’s experts and rebut it.
Yandle granted the motion and set trial Dec. 7.
The summary judgment motions remain pending.