Owners Insurance Company v. Dorsey et al

Filing 60

ORDER granting 58 Motion to Consolidate Cases. Signed by Magistrate Judge Philip M. Frazier on 7/22/2015. (jlrr )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OWNERS INSURANCE COMPANY,

)
)
Plaintiff,
)
)
v.
)
)
STEVEN DORSEY, et al.,
)
)
Defendants.
)
____________________________________)
)
HASTINGS MUTUAL INSURANCE
)
COMPANY,
)
)
Plaintiff,
)
)
v.
)
)
PIEDMONT DEVELOPMENT
)
CORPORATION, et al.,
)
)
Defendants.
)

Case No. 3:14-cv-01009-PMF

Case No. 3:15-cv-00053-PMF

ORDER
FRAZIER, Magistrate Judge:
Presently before the Court are the separate motions to consolidate filed in Owners
Insurance Company v. Steven Dorsey, et al., 3:14-cv-01009-PMF and Hastings Mutual
insurance Company v. Piedmont Development Corporation, et al., 3:15-cv-00053-PMF. Both
cases are insurance declaratory judgment actions filed against the same nine defendants. For the
following reasons, the motions to consolidate are hereby GRANTED.
These two declaratory judgment actions arise out of a home construction project and
subsequent lawsuit filed in Madison County, Illinois. In short, in December, 2006 Nathaniel and
Michelle Mudd purchased a lot in the Fox Creek Estates neighborhood in Edwardsville, Illinois

for $150,000.00. (3:15-cv-00053-PMF, Doc. 2-1, p. 5). The Mudds allege that, unbeknownst to
them, a 40’ gulley on the property had been filled with improperly compacted material. In
August, 2008 the Mudds enter into a contract with Defendant Piedmont to construct a single
family home on the property for $1,193,500.00. The home was completed approximately one
year later. In the spring of 2012 the Mudds notice cracks in the foundation and the walls of the
home. Shortly thereafter the Mudds hire an engineering firm to conduct soil samples around the
property. The engineering firm discovered the improper fill material. The Mudds then
“expend[ed] significant amounts of their own funds to repair the foundation of their Residence,
and [installed] piers to stabilize their sinking Residence.” (3:15-cv-00053-PMF, Doc. 2-1, p. 9).
The Mudds filed suit in late 2014 in state court in Madison County, Illinois. The nine
defendants in these two cases comprise the same parties in the state court action. Owners
Insurance Company (“Owners”) and Hastings Insurance Company (“Hastings”) are not parties to
this underlying state court action. The present two cases arise out separate insurance policies
Piedmont had entered into with Owners and Hastings. Owners and Hastings seek declaratory
judgment that their respective insurances policies with Piedmont do not include coverage of the
Mudds’ claims in the underlying state court action. Owners and Hastings now seek to
consolidate the two cases.
Rule 42 of the Federal Rules of Civil Procedure provides that a district court may
consolidate actions that “involve a common question of law or fact.” Fed. R. Civ. P. 42(a). The
decision to consolidate falls within the discretion of the trial court judge. King v. Gen. Elec. Co.,
960 F.2d 617, 626 (7th Cir. 1992). “While the court has broad discretion as to the consolidation
of actions, it should not consolidate where confusion or prejudice may result.” Am. Photocopy
Equip. Co. v. Fair (Inc.), 35 F.R.D. 236, 237 (N.D. Ill. 1963) (internal cites omitted).

In the present two cases, there are sufficient common questions of law and fact to justify
consolidation. Although the two cases involve separate insurance policies, both cases involve the
same defendants and the same underlying lawsuit. Much of the discovery in these cases will be
applicable to both and consolidation will expedite and economize the litigation process.
Moreover, no party objected to consolidation. Consolidation is therefore appropriate for
“convenience and economy in administration” however consolidation does not “merge the suits
into a single cause, or change the rights of the parties.” Johnson v. Manhattan Ry. Co., 289 U.S.
479, 496-97 (1933).
For the foregoing reasons, the Court GRANTS the motion to consolidate; Owners
Insurance Company v. Steven Dorsey, et al., 3:14-cv-01009-PMF (Doc. 58) and Hastings Mutual
insurance Company v. Piedmont Development Corporation, et al., 3:15-cv-00053-PMF (Doc.
59). All future filings shall bear the consolidated caption used in this order and shall be filed only
in Owners, 3:14-cv-01009-PMF. The Court will entertain any requests to sever the trial at a later,
appropriate stage of this case.
IT IS SO ORDERED.
DATED:

July 22, 2015 .
s/Philip M. Frazier
PHILIP M. FRAZIER
UNITED STATES MAGISTRATE JUDGE