BENTON – As Senior U.S. District Judge Phil Gilbert weighed summary judgment motions in a $2 million insurance dispute, plaintiff Tommy Harris sued for the same amount and the same reason in Missouri.
The tactic failed and the second suit wound up in Gilbert’s court with the first.
He received it on Nov. 8, by order of District Judge Audrey Fleissig.
She presided because Liberty Mutual and subsidiary Ohio Security removed the suit from St. Louis city civil court.
Samantha Unsell, of Tom Keefe’s firm in Swansea, filed the first suit in St. Clair County circuit court.
She claimed Harris suffered infections at a dialysis clinic in Belleville because Don Durham of Missouri and his cleaning business failed to keep the place clean.
Durham didn’t contest his liability at bench trial in 2019, and Circuit Judge Heinz Rudolf granted Harris judgment of $2,080,585.95.
Rudolf found Liberty Mutual and Ohio Security owed a duty to defend Durham, and Unsell amended the complaint to sue them for declaratory judgment.
They removed the complaint to district court in January 2020, asserting diversity jurisdiction as citizens of other states.
Unsell moved to remand it to Rudolf, relying on a rule that all defendants must consent to removal.
Gilbert denied the motion, finding he’d no longer consider Durham a defendant.
He called it a procedurally mystifying situation.
He wrote that he wondered how a state court could decide issues against parties not before it.
He wondered how a complaint could be amended after judgment to add claims against defendants not involved in the original case.
“In light of the history of this case, it is clear that there is no actual, substantial controversy between Harris and the Durham defendants,” Gilbert wrote.
“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.”
He wrote that they cooperated to obtain judgment and Durham essentially received immunity from collection.
Earlier this year he asked for summary judgment motions on the duty of the insurers to defend Durham.
The motions arrived on July 2.
Harris filed a garnishment petition in St. Louis on July 8, and served it on the insurers on Aug. 4.
The insurers removed it on Aug. 11, on the basis of diverse citizenship.
Their counsel Douglas Beck of Kansas City, Mo. also moved for transfer.
Beck claimed Harris filed the suit despite filing and pursuing the first one through discovery and two lengthy hearings.
He claimed Harris didn’t disclose that he would file a materially identical suit in Missouri to avoid a potentially adverse decision by Gilbert.
He claimed the insurers didn’t preemptively file a declaratory judgment action in an effort to seek a more favorable forum.
“Indeed, the insurers were completely unaware of the trial and judgment in the Illinois personal injury action until they were served with Harris’s complaint,” Beck wrote.
On Sept. 1, Fleissig aligned Durham with Harris and gave them six days to show why she shouldn’t grant transfer.
They didn’t respond, and she granted it.
She found Harris chose initially to litigate in Illinois.
Gilbert hasn’t set a trial date.