BENTON – Opponents in St. Clair County circuit court who turned into teammates to stick insurers with a $2 million judgment altered documents in a bid to preserve the judgment at U.S. district court, according to the insurers.
Ohio Security and Liberty Mutual attached evidence of alterations in briefs for Senior District Judge Phil Gilbert on July 2 and July 16.
The first attachment showed Samantha Unsell of Tom Keefe’s firm blacked out a portion of an expert’s deposition.
Unsell represents Tommy Harris, whose dialysis resulted in infection.
The second attachment showed Ted Frapolli of Creve Coeur, Mo. removed a page from a St. Clair County order and wrote page numbers by hand.
Frapolli represents Don Durham of Missouri and Durham Enterprises, which provided cleaning services at Renal Life Link in Belleville.
Harris sued Dunham in St. Clair County circuit court in 2017, claiming unsanitary conditions caused the infection.
Ohio Security declined coverage on the basis of a bacteria exclusion.
Ohio Security invited further information and Durham didn’t respond.
In 2019, Harris and Durham executed a covenant and brought the case to an uncontested trial before Circuit Judge Heinz Rudolf.
Rudolf entered judgment against Durham for $2,080.585.95, and found Ohio Security and Liberty Mutual owed a duty to defend Durham.
In December 2019, Unsell amended Harris’s complaint to sue Ohio Security and Liberty Mutual for that amount.
Ohio Security removed the action to district court in January 2020, on the basis of diverse citizenship.
Harris moved to remand it to St. Clair County, claiming Ohio Security didn’t obtain Durham’s consent to removal.
Gilbert denied the motion, finding no controversy between Harris and Durham.
“In fact, the Durham defendants have taken a dive in order to pave the way for Harris to collect from one or more of their insurers,” Gilbert wrote.
Last October, he ruled that Rudolf’s order didn’t bind him.
“At the time of that decision, Ohio Security was not a party to the action and its interests were not adequately represented,” Gilbert wrote.
In November, Ohio Security and Liberty Mutual filed a cross claim for judgment against Durham.
Discovery disputes followed, and Gilbert held a hearing in March.
For the insurers, Matthew Wolfe of Chicago said denial of defense was proper.
“I think we can go forward right now on summary judgment,” Wolfe said at hearing.
Gilbert said there was no such motion, and Wolfe said he was prepared to do it.
“It’s ripe for resolution,” Gilbert said. “I say we go forward.”
Gilbert told the lawyers that unless they resolve discovery, it might be next year before he could get to their case.
He said they should see his conference room table, “just laid out with filings in this case and questions and objections.”
“If we go through each one of them individually, it’s going to take a hell of a long time,” Gilbert said.
Frapolli said he wanted Liberty Mutual documents.
Wolfe said it’s Ohio Security’s file and he didn’t withhold anything.
Frapolli asked Wolfe to tell him that without objections.
Wolfe told Gilbert he issued objections to requests as they were drafted.
“When he asks us to just withdraw all of our objections to a request, I’m not really in a position to do that given how the request has been tailored,” Wolfe said.
Gilbert said, “That’s what upsets me about interrogatories and responses to interrogatories. It’s just, you nitpick words.”
Frapolli said the St. Clair County court made specific determinations, and Gilbert said that puzzled him.
“I don’t know how the St. Clair County judge could have done that against Liberty Mutual, that wasn’t even a party to the lawsuit,” Gilbert said.
“I don’t want to go down that rabbit hole but I don’t even know why it was necessary for the St. Clair County judge to even make a finding that Liberty had a duty to defend.
“You can lay down, which you did, and he could have started just with negligence.”
He ruled that Frapolli could depose the supervisor of the adjuster on the claim.
Briefing on duty to defend began on July 2, with Unsell claiming the policy applied because Durham’s negligence caused Harris’s injury.
“Though insurers failed to perform even a cursory investigation into the mechanism of plaintiff’s dialysis treatment, they nevertheless acknowledge that something at the dialysis center was inserted into plaintiff’s body to flush out toxins,” Unsell wrote.
“That was enough to trigger the duty to defend.”
Frapolli claimed the insurers couldn’t relitigate Rudolf’s order, which he attached.
Matthew Sitzer of Chicago argued for the insurers that Unsell’s tactical decisions showed the injury was bacterial.
He wrote that in the underlying case, an expert repeatedly explained that Harris suffered from bacterial sepsis.
“Amazingly, when the time came to produce the transcript in this case, Harris’s lawyer produced a transcript that attempted to redact all references to a bacterial infection,” Sitzer wrote.
He wrote that Unsell attached a full transcript when the insurers pointed it out.
“Clearly, his lawyer knows full well that any injury was bacterial,” Sitzer wrote.
Both versions now appear on the docket.
In a portion Unsell blacked out, physician Ephraim Tsalik said bacteria tend to stick to prosthetic material.
He said that makes them extremely difficult to eradicate.