CHICAGO – Tommy Harris, who won more than $2 million in the court of Circuit Judge Heinz Rudolf and lost it in the court of Senior U.S. District Judge Phil Gilbert, aims to win it back on appeal.
Attorney Samantha Unsell of Tom Keefe’s firm filed notice on June 1, that Harris would petition U.S. Seventh Circuit appellate judges for review of Gilbert’s decision.
Gilbert entered judgment in February finding Liberty Mutual owed no duty to defend dialysis clinic cleaner Don Durham in the St. Clair County action.
Rudolf had reached an opposite conclusion.
“The duty to defend is broad but not endless,” Gilbert wrote.
He found the case was beyond the outer limit of a potentially covered claim.
He found ruling for Harris would require an unacceptable degree of imagination.
Federal judges can’t normally review state court decisions, and Unsell argued throughout Gilbert’s time on the case that he lacked jurisdiction.
Harris suffered infections in the course of kidney dialysis, requiring a series of surgeries that grew more drastic.
He claimed Durham performed cleaning services negligently.
At bench trial, Durham agreed not to contest the claim.
Rudolf assessed $750,000 for disfigurement, $500,000 for loss of normal life, $500,000 for pain and suffering, and $330,585.95 in expenses.
He entered judgment against Liberty Mutual and its Ohio Security subsidiary for that amount, which had not been party to the litigation.
Unsell amended the complaint to name the insurers as defendants.
Liberty Mutual removed it to district court on the basis of diverse citizenship.
Harris and Durham, no longer adversaries, moved to remand it to Rudolf.
At a hearing Gilbert asked why Durham didn’t sue the insurers.
His counsel Ted Frapolli of Town and Country, Mo. said an insurer could accept defense, enter under reservation of rights, or file for declaratory judgment.
“They did none of these things,” Frapolli said.
“The duty to defend is determined by the factual basis of the St. Clair County circuit court.”
Gilbert said Liberty Mutual wasn’t even a party to the suit.
He asked Frapolli why he didn’t mount a defense.
Frapolli said he protected his client.
Liberty Mutual counsel Peter O’Neill of Chicago alleged fraud and collusion.
He said pleadings were missing.
Gilbert denied remand.
Harris and Liberty Mutual moved for summary judgment and Gilbert granted it to Liberty Mutual.
He found Harris’s policy excluded injury that wouldn’t have occurred but for the existence of bacteria regardless of other contributing causes.
He found a physician’s certificate of merit confirmed that allegations supported only a cause of action for bacterial infection.
He found there’s no duty where an imagined situation is too speculative and reaches too far beyond known or ascertainable facts.