Harriss v. Durham Enters.

TOMMY HARRIS, Plaintiff/Counterdefendant, v. DURHAM ENTERPRISES, INC., and DON DURHAM, Defendants/Crossclaim Plaintiff/ Crossclaim Defendants, and LIBERTY MUTUAL INSURANCE COMPANY, Defendant/Crossclaim Defendant, and OHIO SECURITY INSURANCE COMPANY, Defendant/Counterplaintiff/Crosscla m Plaintiff/Crossclaim Defendant, and OHIO CASUALTY INSURANCE COMPANY, Intervenor Defendant/Counterplaintiff/ Crossclaim Plaintiff TOMMY HARRIS, DURHAM ENTERPRISES, INC. d/b/a City Wide Maintenance of St. Louis, and DON DURHAM, Plaintiffs, v. LIBERTY MUTUAL INSURANCE COMPANY, and OHIO SECURITY INSURANCE COMPANY, Defendants.

Nos. 20-cv-72-JPG,, 21-cv-1389-JPG

United States District Court, S.D. Illinois

March 16, 2022

MEMORANDUM AND ORDER TO SHOW CAUSE

J PHIL GILBERT DISTRICT JUDGE

This matter comes before the Court for case management purposes.

I. Motion to Consolidate

Liberty Mutual Insurance Company (“LMIC”) and Ohio Security Insurance Company (“OSIC”) have filed a motion in Harris v. LMIC, No. 21-cv-1389-JPG, to consolidate that case with Harris v. Durham Enterprises, Inc., No. 20-cv-72-JPG (Doc. 33, No. 21-cv-1389-JPG). Both cases arose after plaintiff Tommy Harris was injured by an infection he contracted at a dialysis center for which Durham Enterprises, Inc. and Don Durham (collectively, the “Durham Defendants”) provided commercial cleaning services. LMIC, OSIC, and/or Ohio Casualty Insurance Company (“OCIC”) insured the Durham Defendants, and whether that insurance covered Harris's injuries is the subject of the dispute in Harris v. Durham Enterprises, Inc., No. 20-cv-72-JPG. The other case, Harris v. LMIC, No. 21-cv-1389-JPG, is an equitable garnishment action under Missouri law seeking payment under the Durham Defendants' applicable insurance policies. In essence, the cases involve the same insurance coverage questions.

No party objects to consolidation. Federal Rule of Civil Procedure 42(a) allows the Court discretion to consolidate cases that involve a common question of law or fact, and, as noted above, these two cases involve the same insurance coverage issues. It further appears in light of the March 15, 2022, status conference that consolidation of these cases would be the most efficient manner of disposing of all issues in this forum and allowing a unified appeal for streamlined consideration of all the related issues by the Court of Appeals.

Accordingly, the Court GRANTS the motion to consolidate (Doc. 33, No. 21-cv-1389- JPG) and ORDERS that Harris v. LMIC, No. 21-cv-1389-JPG, is consolidated with Harris v. Durham Enterprises, Inc., No. 20-cv-72-JPG, which shall be the lead case. All future filings shall bear the above caption and should be filed only in Harris v. Durham Enterprises, Inc., No. 20-cv-72-JPG.

II. Order to Show Cause

The Court further notes that issues recently decided on summary judgment appear to be dispositive of all remaining issues in this case. Specific, the Court ruled on summary judgment that there was no duty to defend the Durham Defendants against Harris's tort claim because his injuries fell within the Bacteria Exclusion of the policies but not within the Bodily Consumption Exception to that exclusion. It directed entry of a declaration reflecting this conclusion at the close of the case. This conclusion appears to be dispositive of the remaining claims in this case:

• Harris's (Doc. 49, No. 20-cv-72-JPG), OSIC's (Doc. 56. No. 20-cv-72-JPG), and OCIC's (Doc. 66. No. 20-cv-72-JPG) claims seeking a declaration regarding a duty to indemnify under the appliable insurance policies;

• the Durham Defendants' cross-claims against LMIC and OSIC for breach of the insurance contract and for bad faith failure to settle an insurance claim (Doc. 69, No. 20-cv-72-JPG); and

• Harris's equitable garnishment claim based on LMIC's and OSIC's duty to indemnify under the insurance policy (Doc. 1-1, No. 21-cv-1389-JPG).

Thus the remaining issues are whether there is a duty to indemnify,...