BENTON – Dialysis patient Tommy Harris, awaiting judgment on a $2,080,585.95 suit against Liberty Mutual in U.S. district court, sued the insurer for that much and for the same reason in St. Louis city civil court.
His counsel Samantha Unsell of Tom Keefe’s firm tried the tactic in July, but Liberty removed the suit to U.S. district court in St. Louis on Aug. 11.
Liberty then moved to transfer it to Illinois, where Senior District Judge Phil Gilbert has presided over the dispute for 18 months.
Liberty counsel Douglas Beck of Kansas City claimed Harris filed suit in St. Louis six days after both sides moved for summary judgment in Gilbert’s court.
Both suits seek to collect damages that St. Clair County Circuit Judge Heinz Rudolf entered against Liberty and its Ohio Security subsidiary.
Neither insurer had been a party in Rudolf’s court.
Liberty removed the suit to district court, where Gilbert expressed curiosity about Rudolf’s jurisdiction over the insurer.
He denied a motion to remand the case to Rudolf, and the motions pending before him address the issue Rudolf decided.
Harris endured nine surgical procedures at Metro East Dialysis and St. Elizabeth’s Hospital in 2016.
Infection kept bringing him back, and surgeons kept replacing the catheters in different positions.
Harris sued the dialysis center in St. Clair County circuit court in 2017.
Unsell claimed he incurred medical expenses of $330,585.95.
Unsell added Don Durham and Durham Enterprises, doing business as City Wide Maintenance of St. Louis, as defendants later that year.
She claimed the health department found Durham scrubbed floors with dirty mops, cleaned with vinegar, and missed spots that needed constant cleaning.
Durham tendered the suit to Liberty, which denied coverage on the basis of a policy provision about bacteria.
In March 2019, Unsell moved to sever Durham from the suit.
Rudolf granted it and opened a separate file.
At bench trial in July 2019, Durham’s counsel Ted Fapolli of Town and Country, Mo. said Durham and Harris entered into an agreement.
Instead of contesting Durham’s liability, Frapolli contested Liberty’s decision not to defend Durham.
In October 2019, Rudolf found Liberty had a duty to defend.
Rudolf found no mention of bacterial infection in the complaint.
He found Liberty failed to file for declaratory judgment against Durham.
He entered judgment against Durham and found that any future action by Liberty Mutual was untimely as a matter of law.
He awarded medical expenses, $750,000 for disfigurement, and $500,000 each for loss of normal life and for pain and suffering.
Unsell took the next step by amending the complaint to add Liberty and its subsidiary as defendants.
Liberty removed the suit to district court on the basis of diverse citizenship as a Massachusetts citizen.
Harris moved to remand it to Rudolf, claiming Liberty needed Durham’s consent for removal because he remains a defendant.
Gilbert denied the motion in June, finding Durham had aligned with Harris.
“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.
Gilbert narrowed all issues to the question of duty to defend and in March, he requested summary judgment motions.
They arrived at his desk on July 2.
On July 8, Unsell filed a petition for equitable garnishment against Liberty and Ohio Security in St. Louis city civil court.
“Durham Enterprises and Mr. Durham were insured against said loss or damage by virtue of a contract of insurance which existed by and between Durham Enterprises, Mr. Durham, Liberty Mutual, and Ohio Security,” Unsell wrote.
She served the petition on Liberty on July 19.
Beck stated in his removal notice that Harris pleaded extremely similar facts and theories as those in the first action.
He wrote in his transfer motion, “Bizarrely, despite filing and pursuing the first Durham insurance action all the way through two lengthy and substantive hearings, the close of fact discovery, and cross motions for summary judgment, Harris recently filed this new lawsuit.”
He stated that upon transfer to Southern Illinois, Liberty would immediately move to consolidate the case with the first one.
He stated that Gilbert already ruled he had jurisdiction.