United States District Court, W.D. Missouri, Central Division
Nanette K. Laughrey, United States District Judge.
before the Court is the Attorney Intervenors Edelman and
Thompson, LLC's motion for summary judgment, Doc. 144,
which is opposed by both Boone County and Insurer Intervenor
Missouri Public Entity Risk Management Fund (MOPERM). For the
following reasons, the motion is granted with respect to the
County's unjust enrichment claim and denied with respect
to the County's request to set aside the final judgment.
Statement of Uncontroverted Material Fact
13, 2016, Plaintiff Derrick Houston filed a complaint against
the County of Boone and six of its employees. Doc. 159,
¶ 1. Houston alleged constitutional violations and state
law claims arising out of an incident on October 3, 2015 and
claimed that the incident caused Houston to suffer spine
injuries and paralysis. Id. Attorney Intervenors
Edelman and Thompson represented Houston, and the
County's insurer, Missouri Public Entity Risk Management
Fund (MOPERM), assumed the defense for both the County and
the individual defendants. Id. at ¶¶ 2-3.
were scheduled to make their initial disclosures by November
1, 2016, and complete discovery by August 1, 2017.
Id. at ¶ 7. On November 1, 2016, Houston made
initial disclosures, which identified six individuals with
discoverable information regarding “pre- and
post-injury life” and approximately 40 heath care
providers. Id. at ¶¶ 7-10. Medical records
provided by Houston indicated that as of October 31, 2015, he
had “full strength in the upper extremities[, ] 0/5
strength in lower extremities” and “absent
sensation to light touch and pinprick below T2 and below,
” and that Houston had been diagnosed with an
“incomplete T2 ASIA B Injury.” Id. at
March 17, 2017, Houston was deposed. Id. at ¶
19. The following exchange took place during the deposition:
Q: Are you able to get up out of that chair and walk today---
A: No, sir.
Q: ---around the house?
A: I wish I could. I really wish I could, man.
Q: If you had something to lean on, can you stand and lean?
A: No, sir.
Q: What have the doctors told you about what you can expect
down the road as far as improvement or no improvement?
A: No. improvement.
Id. at ¶ 22. The same day, Houston made a
demand to settle his claims in exchange for payment equal to
MOPERM's policy limits. Id. at ¶ 17. The
demand letter stated it was open for 14 days and that the
present value of Houston's estimated life care plan was
$5.7 million, based on an enclosed report prepared by Craig
H. Lichtblau. Id. at 18; Doc. 145-1, pp. 6-7 (Demand
March 22 and March 23, MOPERM was advised regarding potential
liability for acting in bad faith with respect to
Houston's demand for settlement, as defense counsel was
concerned that Houston was “trying to set up a bad
faith claim.” Doc. 159, ¶¶ 23-24, 28. Counsel
advised that Houston's “prospects for recovering
some ability to ambulate” was not known, but that
“there is at least a 50% chance” that the County
will be found liable, in which case there would likely be a
verdict in excess of the limits of MOPERM's insurance
policy. Id. at ¶¶ 25-26, 33(d).
County opposed settling the case, in part because it doubted
Houston was paralyzed, but at least one individual defendant
demanded settlement. Id. at ¶¶ 29-30. When
MOPERM was deciding whether to settle, MOPERM considered
other factors besides whether Houston could walk.
Id. at ¶ 34. MOPERM also considered “the
facts, the law, the location, the likability or believability
of involved parties in trying to come to a reasonable
conclusion.” Doc. 145-4 (Weber Deposition), p. 67. At
the time of settlement, counsel for the defendants had
corresponded with, but not engaged, an expert to comment on
liability and damages or review Houston's medical
records, nor had the County interviewed or deposed any of the
witnesses identified as having discoverable information. Doc.
159, ¶ 35; Doc. 145-2 (Berry Deposition), p. 208. Boone
County never served interrogatories, requests for production
of documents, or admissions. Doc. 159, ¶ 55.
sought an extension of time to respond to Houston's
demand for settlement, but the extension was denied. Doc.
161, ¶ 1. Houston accepted an offer to settle his claims
against all defendants in exchange for $2 million on April 5,
2017. Doc. 159, ...