SHEMIKA D. MITCHELL , Executor of the Estate of Tommy Harris v. DURHAM ENTERPRISES, INC., and DON DURHAM

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 22-1983
SHEMIKA D. MITCHELL , Executor
of the Estate of Tommy Harris,
Plaintiff-Appellant,
v.
D URHAM ENTERPRISES, INC., and D ON D URHAM,
Defendants-Appellants,
and
OHIO SECURITY INSURANCE C OMPANY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
Nos. 20-cv-72 & 21-cv-1389 — J. Phil Gilbert, Judge.
____________________
A RGUED NOVEMBER 8, 2022 — D ECIDED A PRIL 24, 2024
____________________
Before SYKES, Chief Judge, and WOOD and S CUDDER , Circuit
Judges.

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2 No. 22-1983
SYKES, Chief Judge. Tommy Harris was diagnosed with bac-
terial sepsis after suffering repeated infections resulting from
his dialysis treatment at a clinic in Belleville, Illinois. He filed
a state-court malpractice action against the operators of the
clinic and later added a claim against Durham Enterprises,
Inc., the janitorial company responsible for cleaning the facil-
ity. This appeal concerns Durham’s insurance coverage.
Durham tendered the suit to Ohio Security Insurance
Company, its insurer. Ohio Security denied coverage based
on the insurance policy’s exclusion for injuries caused by
fungi or bacteria. Harris and Durham then negotiated an
agreement in which Durham promised not to mount a de-
fense and Harris promised to seek recovery only from the in-
surer.
Harris moved to sever his claim against Durham and set it
for a bench trial. The state trial judge granted the motion. On
the trial date, the parties disclosed their agreement to the
court. The judge then held a short, uncontested bench trial;
adopted Harris’s uncontested findings; and entered judgment
against Durham for more than $2 million. Though Ohio Secu-
rity was not a party and the insurance policy was not in the
record, the consent judgment includes findings on insurance
issues—notably, that the insurer breached its duty to defend
and is estopped from asserting any policy defenses.
After the judgment became final, Harris filed an amended
complaint purporting to add Ohio Security as a defendant.1
1 Harris also added “Liberty Mutual Insurance” as a defendant. That was
a mistake. “Liberty Mutual Insurance” is not a legal entity; it’s a group of
affiliated underwriting companies that includes Liberty Mutual Insurance
Company and Ohio Security Insurance Company. The latter issued
Durham’s insurance policy. Though the policy document bears the

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No. 22-1983 3
Ohio Security removed the action to federal court and sought
a declaration of its coverage obligations. The district court
held that the bacteria exclusion precludes coverage.
Aligned in interest, Harris and Durham jointly appealed,
challenging the no-coverage ruling but also raising a belated
challenge to subject-matter jurisdiction under the Rooker–Feld-
man doctrine. The jurisdictional argument is meritless. The
Rooker–Feldman doctrine does not block federal jurisdiction
over claims by nonparties to state-court judgments. Lance v.
Dennis, 546 U.S. 459, 465 (2006); Johnson v. De Grandy, 512 U.S.
997, 1006 (1994). And the judge’s merits ruling was sound; the
policy’s bacteria exclusion precludes coverage for this loss.
We affirm the judgment.
I. Background
In December 2015 Harris had a dialysis catheter surgically
implanted and began dialysis treatment at the Metro East Di-
alysis in Belleville. From February to August 2016, he con-
tracted multiple infections at the catheter site, necessitating
several surgeries to remove and replace the catheter. The in-
fections, in turn, led to sepsis. During this period, Harris was
diagnosed with both gram positive and gram negative sepsis;
both are types of bacterial sepsis.
Several public health agencies investigated an increase in
patient infections originating from the dialysis clinic during
logomark “Liberty Mutual Insurance,” the declarations page indicates
that Ohio Security is the insurer. The district judge noted these anomalies
and permitted Harris to substitute Liberty Mutual Insurance Company for
“Liberty Mutual Insurance.” It’s not clear why Liberty Mutual Insurance
Company is in the case. Ohio Security issued the relevant policy, so we
can ignore Liberty Mutual.

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4 No. 22-1983
this six-month period in 2016. Among other discoveries, the
investigation found that Durham Enterprises, the janitorial
company responsible for cleaning the facility, was doing so
improperly.2 There is no dispute that Harris’s infections were
caused in part by Durham’s negligent cleaning of the facility.
In January 2017 Harris commenced a malpractice action in
St. Clair County Circuit Court against the dialysis clinic alleg-
ing (among other things) that it failed to properly sanitize the
facility and its equipment. But he did not name the proper de-
fendant. In April he filed an amended complaint with the cor-
rect names of the clinic operators: Renal Life Link, Inc., and
Davita, Inc. As a prerequisite for his malpractice claims, Har-
ris attached a certificate of merit prepared by a medical expert
pursuant to Illinois law. See 735 ILL . C OMP. S TAT . 5/2-622. The
certificate stated that the clinic operators deviated from ac-
ceptable standards of care by failing to properly sanitize the
facility, causing Harris’s injuries.
Harris’s amended complaint also added a negligence
claim against Durham Enterprises and its owner, Don
Durham. (We refer to them collectively as “Durham.”) More
specifically, Count Three of the amended complaint alleged
that the janitorial company “negligently and carelessly failed
to properly clean and sanitize said dialysis center.”
2 The investigators determined that Durham improperly used vinegar as
its primary cleaning agent, used dirty mop heads to clean the floors, failed
to clean all touchable surfaces, and failed to disinfect the cleaning cart
upon entry and exit from the facility.

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No. 22-1983 5
Durham was insured during the relevant period under a
commercial general liability policy issued by Ohio Security.3
Durham sought a defense and indemnification from the in-
surer, submitting the amended complaint, the certificate of
merit, and an affidavit from Harris’s counsel.
Ohio Security promptly reviewed the materials Durham
submitted and the language of the operative insurance policy.
Relevant here is the policy’s “Fungi or Bacteria Exclusion,”
which excludes coverage for
“Bodily Injury” … which would not have oc-
curred, in whole or in part, but for the actual,
alleged or threatened inhalation of, ingestion of,
contact with, exposure to, existence of, or pres-
ence of, any “fungi” or bacteria on or within a
building or structure, including its contents, re-
gardless of whether any other cause, event, ma-
terial or product contributed concurrently or in
any sequence to such injury or damage.
But there is an exception: “This exclusion does not apply to
any ‘fungi’ or bacteria that are, are on, or are contained in, a
good or product intended for bodily consumption.”
By letter dated May 15, 2017, Ohio Security denied cover-
age based on the bacteria exclusion. Emily Anderson, the
claims adjuster who processed the claim, made the
3 Durham also carried excess insurance under an umbrella policy issued
by Ohio Casualty Insurance Company, Ohio Security’s parent. Ohio Cas-
ualty intervened in the district court to protect its potential exposure un-
der the umbrella policy. The two policies are materially identical, so for
simplicity we treat the policies as one and refer to the two insurers as
“Ohio Security.”

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6 No. 22-1983
determination based on the materials Durham had provided;
she did not seek any additional information. She did, how-
ever, invite Don Durham to submit further information if he
wished. She also asked him to forward any amended plead-
ings in the Harris litigation. Durham did not respond to the
invitation to submit further information. The May 15 letter
denying coverage was the last communication between
Durham and its insurer for quite some time.
Harris’s case in state court moved forward very slowly. At
some point along the way, Harris and Durham reached an
agreement whereby Durham promised not to mount a de-
fense and Harris promised to seek recovery only from
Durham’s insurer. Durham did not notify Ohio Security of
this agreement.
On March 18, 2019—nearly two years after initiating the
state-court litigation—Harris filed an uncontested motion to
sever his claim against Durham into a separate action. The
state trial judge granted the motion and assigned a new case
number, and Harris filed a new complaint under the second
case number naming only Don Durham and Durham Enter-
prises as defendants. On May 15 Harris moved for a trial to
the bench. That motion was granted, and the case against
Durham was set for a bench trial on July 30.
On July 18, 2019—12 days before the scheduled bench
trial—Harris and Durham formalized their agreement in a
written “Covenant Not to Execute and Limit Recovery.” Un-
der Missouri law, which governs this insurance dispute,
Durham had a statutory duty to notify Ohio Security of the

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No. 22-1983 7
agreement within 30 days. MO. R EV. STAT . § 537.065(2) (2021).4
It did not do so.
At the start of trial on July 30, the parties told the judge
about their agreement—specifically, that Durham had agreed
not to mount a defense in exchange for Harris’s agreement to
seek recovery of any judgment only from the insurer. The
judge then held a brief, uncontested bench trial, and on Octo-
ber 9 adopted Harris’s uncontested findings of fact and con-
clusions of law verbatim and entered judgment against
Durham for a little over $2 million. The judgment included
findings adverse to Durham’s insurer even though Ohio Se-
curity was not a party to the lawsuit and the insurance policy
was not in the record. Specifically, the judge found that (1)
Durham’s insurer had a duty to defend the lawsuit; (2) it was
too late for the insurer to seek a declaration to the contrary;
(3) the insurer had breached its duty to defend; and (4) the
4 Missouri law permits agreements of this type but requires the insured to
notify the insurer within 30 days:
If any action seeking a judgment on the claim against the
tort-feasor is pending at the time of the execution of any
contract entered into under this section, then, within
thirty days after such execution, the tort-feasor shall pro-
vide his or her insurer or insurers with a copy of the exe-
cuted contract and a copy of any such action.
MO . R EV. S TAT . § 537.065(2) (2021). The insurer is entitled to intervene in
the underlying suit within 30 days of receiving notice. See id. § 537.065(4)
(“Any insurer or insurers who receive notice pursuant to this section shall
have the unconditional right to intervene in any pending civil action in-
volving the claim for damages within thirty days after receipt of such no-
tice.”).

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8 No. 22-1983
insurer was estopped from raising policy defenses to cover-
age.
On December 7—after the judgment became final and the
30-day time to appeal had expired, see ILL . SUP. C T . R. 303—
Harris filed an amended complaint adding Ohio Security as a
defendant and seeking satisfaction of the judgment from it as
Durham’s insurer. Before this development, the insurer had
not heard from Durham since the May 2017 letter denying
coverage. Ohio Security removed the case to federal court
based on diversity of citizenship and sought a declaration
concerning its coverage obligations. Harris and Durham,
aligned in interest, both moved to remand, but the district
judge denied the motion.
The case proceeded to cross-motions for summary judg-
ment on Ohio Security’s duty to defend. The judge held that
the bacteria exclusion bars coverage, the “bodily consump-
tion” exception is inapplicable, and Ohio Security therefore
owed no duty to defend Durham in the Harris lawsuit. That
ruling appeared to resolve all other insurance issues in Ohio
Security’s favor—i.e., questions of indemnification, breach of
contract, and bad-faith denial of coverage—so the judge is-
sued an order to show cause why final judgment should not
be entered for the insurer.
In response Harris argued for the first time that the court
lacked subject-matter jurisdiction under the Rooker–Feldman
doctrine. Durham’s response simply reargued the judge’s
duty-to-defend ruling. Ohio Security argued that final judg-
ment in its favor followed necessarily from the judge’s con-
clusion that it had no duty to defend.

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No. 22-1983 9
The judge agreed with Ohio Security. He explained that
because the duty to defend is broader than the duty to indem-
nify, his ruling on the duty to defend necessarily resolved all
remaining insurance issues in the insurer’s favor. Without ad-
dressing Harris’s Rooker–Feldman argument, the judge entered
final judgment for Ohio Security.
Harris died shortly after judgment was entered. His attor-
ney joined with Durham’s counsel to file a timely notice of
appeal. But the notice erroneously listed Harris as the plain-
tiff-appellant. In compliance with Rule 43(a) of the Federal
Rules of Appellate Procedure, Harris’s counsel later moved to
substitute Shemika D. Mitchell, the executor of Harris’s estate,
as the plaintiff-appellant. We granted the motion.
II. Discussion
As we’ve just noted, Harris’s estate and Durham filed a
joint appeal. But Harris’s estate alone has shouldered the bur-
den of developing an appellate challenge to the district court’s
judgment. That’s not surprising. With its immunity from col-
lection secure, Durham was content to let the estate fight the
battle over insurance coverage, so it summarily adopted the
estate’s appellate arguments and called it a day.
We focus then on the issues the estate raises on appeal.
There are two. The estate argues that the Rooker–Feldman doc-
trine bars subject-matter jurisdiction and that the judge
wrongly concluded that Ohio Security had no duty to defend
Durham in the state-court lawsuit. Ohio Security responds
that the Rooker–Feldman argument is frivolous; on this issue it
filed a separate motion for sanctions under Rule 38 of the Fed-
eral Rules of Appellate Procedure. The insurer also defends
the judge’s no-coverage ruling on the merits.

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10 No. 22-1983
We begin, as we must, with the jurisdictional argument.
But we can be brief. Rooker–Feldman does not apply here. The
doctrine “is confined to cases of the kind from which the doc-
trine acquired its name: cases brought by state-court losers
complaining of injuries caused by state-court judgments ren-
dered before the district court proceedings commenced and
inviting district court review and rejection of those judg-
ments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005) (explaining the limits of the jurisdictional rule
established in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),
and District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983)). The Rooker–Feldman rule enforces the line between
original and appellate jurisdiction in the federal judicial sys-
tem. The Supreme Court has appellate jurisdiction to review
and modify or reverse a state-court judgment; the lower fed-
eral courts do not. Id. at 291–92.
In keeping with the doctrine’s rationale and narrow appli-
cation, the Supreme Court has held that Rooker–Feldman does
not apply “where the party against whom the doctrine is in-
voked was not a party to the underlying state-court proceed-
ing.” Lance, 546 U.S. at 464. A federal litigant who was absent
from the underlying litigation and judgment in state court is
“in no position to ask [the Supreme Court] to review the state
court’s judgment” but instead is “merely seek[ing] to litigate
its … case for the first time” in federal court. De Grandy, 512
U.S. at 1006.
Because Ohio Security was not a party to the Harris litiga-
tion in state court and is not a party to the state-court judg-
ment against Durham, Rooker–Feldman cannot be invoked
against it. The estate rests its jurisdictional argument on a
footnote in Lance in which the Court declined to address

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No. 22-1983 11
“whether there are any circumstances, however limited, in
which Rooker–Feldman may be applied against a party not
named in an earlier state proceeding.” Lance, 546 U.S. at 466
n.2. The Court gave an example of a limited circumstance that
might qualify: “e.g., where an estate takes a de facto appeal in
a district court of an earlier state decision involving the dece-
dent.” Id.
The Court’s example makes sense considering the logic of
the doctrine: a decedent’s estate simply steps into the dece-
dent’s shoes and like the decedent cannot seek de facto appel-
late review of a state-court judgment in district court. But this
example doesn’t remotely fit the procedural facts of this case.
Ohio Security is not stepping into the shoes of a state-court
litigant. The estate’s Rooker–Feldman argument is clearly fore-
closed by Lance and De Grandy. Subject-matter jurisdiction is
secure.
Turning to the merits, the estate challenges the judge’s de-
termination that Ohio Security had no duty to defend
Durham in the state litigation. That ruling turned on the in-
surance policy’s bacteria exclusion and the exclusion’s “bod-
ily consumption” exception. We review de novo the judge’s
interpretation and application of the Ohio Security insurance
policy. Panfil v. Nautilus Ins. Co., 799 F.3d 716, 718–19 (7th Cir.
2015). Everyone agrees that Missouri law governs this insur-
ance-coverage dispute.
When sitting in diversity, we are bound by controlling de-
cisions of the state’s highest court, and when the state’s high-
est court has not yet addressed an issue, we must predict how
it would rule. Smith v. RecordQuest, LLC, 989 F.3d 513, 517–18
(7th Cir. 2021). We also “consult and follow the decisions of
intermediate appellate courts unless there is a convincing

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12 No. 22-1983
reason to predict the state’s highest court would disagree.” Id.
at 517 (quotation marks omitted). “So while a state supreme
court’s rule would control, a state appellate court’s decision
can provide controlling guidance as well.” Id. at 517–18.
In Missouri (as elsewhere), an insurer’s duty to defend
arises “when there is a possibility or potential for coverage at
the outset of the case.” Allen v. Bryers, 512 S.W.3d 17, 31 (Mo.
2016). “The obligation … to defend a suit … is to be deter-
mined from the cause of action pleaded, at the time the action
is commenced, not from what an investigation or a trial of the
case may show the true facts to be.” Trainwreck W. Inc. v. Bur-
lington Ins. Co., 235 S.W.3d 33, 39 (Mo. Ct. App. 2007) (empha-
sis removed) (quotation marks omitted).
The insurer’s duty to defend is determined by comparing
the facts alleged against the insured in the complaint with the
text of the insurance policy. If the complaint alleges facts that
potentially give rise to a claim within the policy’s coverage,
the insurer has a duty to defend the insured. Allen, 512 S.W.3d
at 31. An insurer’s assessment of its duty to defend should
also consider facts that it either knows or “are reasonably ap-
parent [to it] at the outset of the case.” Id. (quotation marks
omitted).
The insurer may also have a duty to defend based on facts
that are reasonably ascertainable at the outset of a case, even
if they were not actually ascertained. “[I]f, at the time the
claim is made, facts … could reasonably be ascertained by the
insurer that would potentially put the claim within the scope
of the policy, the insurer must defend the insured.” Id. (quot-
ing Fostill Lake Builders, LLC v. Tudor Ins. Co., 338 S.W.3d 336,
347 (Mo. Ct. App. 2011)). When an insured claims that facts
establishing coverage were ascertainable by the insurer

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No. 22-1983 13
through reasonable investigation, the insured must point to
evidence of what the insurer would have found through rea-
sonable investigation that would have brought the claim
within the policy’s coverage. Interstate Bakeries Corp. v. One-
Beacon Ins. Co., 686 F.3d 539, 544 (8th Cir. 2012) (applying Mis-
souri law).
The standard for determining an insurer’s duty to defend
is undeniably generous to the insured—the duty arises when
there is a “possibility” or “potential” for coverage based on
the facts alleged in the complaint or reasonably apparent to
the insurer when the case begins. But duty to defend is not
“boundless.” Id. The scope of the duty is limited by the lan-
guage of policy, which expresses the intent of the contracting
parties. Id. The insurer has the burden to establish that it owes
no duty to defend. Id. at 543; see also Allen, 512 S.W.3d at 31.
This case turns on the bacteria exclusion in the Ohio
Security policy, which excludes from coverage any injury
“which would not have occurred … but for … exposure to …
any … bacteria on or within a building or structure, including
its contents.” The amended complaint in the state-court suit
alleged that Harris “suffered numerous infections” in part be-
cause Durham “negligently and carelessly failed to properly
clean and sanitize [the] dialysis center.” The complaint itself
contains no specifics about what type of infections Harris suf-
fered, but the certificate of merit accompanying the complaint
added the relevant details. The certificate states that Harris
was placed “at significantly increased risk of bacterial sepsis
and, in fact, [Harris] was diagnosed with both gram positive
and gram negative sepsis”; both are types of bacterial infec-
tion. Accordingly, based on the allegations in the amended

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14 No. 22-1983
complaint and the details in the attached certificate of merit,
the bacteria exclusion plainly applies.
The estate resists this conclusion, arguing that it’s inappro-
priate to consider the certificate of merit to determine the duty
to defend. Citing Garrison v. Choh, 719 N.E.2d 237, 240, 243 (Ill.
App. Ct. 1999), the estate emphasizes that a certificate of
merit, though required for a malpractice claim in Illinois, is
not considered a formal part of the complaint. That’s irrele-
vant in this context. The certificate of merit was attached to
the amended complaint and provided facts known to the in-
surer at the outset of the case; it’s not off-limits in the duty-to-
defend calculus. See Allen, 512 S.W.3d at 31.
The estate next takes issue with the insurer’s lack of inves-
tigation, criticizing the claims adjuster for denying coverage
without first seeking medical records or other information re-
lated to the claim. This line of argument requires the estate to
identify facts that would have given rise to a duty to defend
and to support its argument with evidence that would have
been found by the insurer through reasonable investigation.
See Interstate Bakeries, 686 F.3d at 546. The estate has not iden-
tified any such facts, let alone provided evidence to back up
this argument.
Finally, the estate contends that this case falls within the
bacteria exclusion’s “bodily consumption” exception. To re-
peat, the exception provides that the exclusion “does not ap-
ply to any … bacteria that are, are on, or are contained in, a
good or product intended for bodily consumption.” The es-
tate bears the burden of showing that the exception applies.
See Trans World Airlines, Inc. v. Associated Aviation Underwrit-
ers, 58 S.W.3d 609, 622 (Mo. Ct. App. 2001).

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No. 22-1983 15
We note first that although Harris and Durham both made
passing references to the bodily-consumption exception in
their responses to Ohio Security’s summary-judgment mo-
tion, neither of them developed an argument about its appli-
cation. Ohio Security justifiably raises waiver. Ross v. Fin.
Asset Mgmt. Sys., Inc., 74 F.4th 429, 434 (7th Cir. 2023) (“When
a party fails to develop an argument in the district court, the
argument is waived, and we cannot consider it on appeal.”
(quoting Frey Corp. v. City of Peoria, 735 F.3d 505, 509 (7th Cir.
2013))).
Even if we were inclined to overlook the failure to ade-
quately preserve this issue, the estate made only minimal ef-
fort in its appellate brief to explain the basis for its claim that
the bodily-consumption exception applies. The estate never
identified a “good or product intended for bodily consump-
tion” that might have caused Harris’s injuries. Instead, it re-
turned to its refrain that the claims adjuster did not
adequately investigate the applicability of the bacteria exclu-
sion but again did not explain why the bodily-consumption
exception might have applied or how a reasonable investiga-
tion would have made that apparent.
At oral argument the estate suggested for the first time that
the dialysis machines caused Harris’s infections and could be
considered a good or product “intended for bodily consump-
tion” within the meaning of the exception. Arguments first
raised at oral argument are waived. Wonsey v. City of Chicago,
940 F.3d 394, 398–99 (7th Cir. 2019). Waiver aside, to the extent
that this new and undeveloped theory posits that Durham
was responsible for cleaning the dialysis machines, it conflicts
with Harris’s allegations in the state-court suit. The amended
complaint alleged that the clinic operators failed to (1) “timely

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16 No. 22-1983
change the diasafe filters”; (2) “properly maintain the prem-
ises to minimize risk of infection to patients”; and (3)
“properly maintain dialysis machines and equipment to min-
imize the risk of infection in patients.” Durham, on the other
hand, was accused of failing to properly clean and sanitize the
dialysis facility. Ohio Security was not required to imagine a
wholly different and contradictory set of allegations when
evaluating its duty to defend. Interstate Bakeries, 686 F.3d at
545 (declining to find a duty to defend when the insured’s ar-
gument required “an unacceptable degree of imagination”).
In sum, the policy’s bacteria exclusion precluded coverage
for this loss. We agree with the district judge that Ohio Secu-
rity had no duty to defend Durham in the Harris litigation.
There is one final matter. As we’ve noted, Ohio Security
moved for Rule 38 sanctions limited to its costs to defend the
Rooker–Feldman argument, which it characterizes as frivolous.
An appeal is frivolous (in whole or in part) “when the result
is obvious or when the appellant’s argument is wholly with-
out merit.” Harris N.A. v. Hershey, 711 F.3d 794, 802 (7th Cir.
2013) (quotation marks omitted). The Rooker–Feldman argu-
ment was clearly foreclosed by the Supreme Court’s decisions
in Lance and De Grandy. The estate’s argument to the contrary
was paper thin. And neither the estate nor Durham bothered
to file a response to the Rule 38 motion or even a reply brief.
Still, we conclude that sanctions are unwarranted here.
“Frivolous” is not synonymous with merely “unsuccessful or
unlikely to succeed.” Dolin v. GlaxoSmithKline LLC, 951 F.3d
882, 887 (7th Cir. 2020) (internal quotation marks omitted).
And even if an appeal is frivolous, “Rule 38 sanctions are not
mandatory but are left to the sound discretion of the court of

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No. 22-1983 17
appeals.” Harris N.A., 711 F.3d at 802. We decline to award
sanctions on this discrete issue. The Rule 38 motion is denied.
A FFIRMED; R ULE 38 MOTION DENIED.

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