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.

DURHAM ENTERPRISES, INC., and DON DURHAM, 

Defendants-Appellants, 

and

OHIO SECURITY INSURANCE COMPANY, 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. 

____________________ 

ARGUED NOVEMBER 8, 2022 — DECIDED APRIL 24, 2024 

____________________ 

Before SYKES, Chief Judge, and WOOD and SCUDDER, Circuit 

Judges. 
2 No. 22-1983 

SYKES, Chief Judge. Tommy Harris was diagnosed with 

bacterial 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 facility. 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 

defense and Harris promised to seek recovery only from the

insurer.

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 Security 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 defend-
No. 22-1983 3 

ant.1 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–

Feldman 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 

Dialysis in Belleville. From February to August 2016, he 

contracted multiple infections at the catheter site, necessitating several surgeries to remove and replace the catheter. The 

infections, in turn, led to sepsis. During this period, Harris 

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 

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. 
4 No. 22-1983 

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 

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

alleging (among other things) that it failed to properly 

sanitize the facility and its equipment. But he did not name 

the proper defendant. In April he filed an amended complaint with the correct names of the clinic operators: Renal 

Life Link, Inc., and Davita, Inc. As a prerequisite for his 

malpractice claims, Harris attached a certificate of merit 

prepared by a medical expert pursuant to Illinois law. See 

735 ILL. COMP. STAT. 5/2-622. The certificate stated that the 

clinic operators deviated from acceptable 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 

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.
No. 22-1983 5 

specifically, Count Three of the amended complaint alleged 

that the janitorial company “negligently and carelessly failed 

to properly clean and sanitize said dialysis center.” 

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

insurer, 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 occurred, in whole or in part, but for the actual, 

alleged or threatened inhalation of, ingestion 

of, contact with, exposure to, existence of, or 

presence of, any “fungi” or bacteria on or within a building or structure, including its contents, regardless of whether any other cause, 

event, material or product contributed concurrently or in any sequence to such injury or 

damage. 

3 Durham also carried excess insurance under an umbrella policy issued 

by Ohio Casualty Insurance Company, Ohio Security’s parent. Ohio 

Casualty intervened in the district court to protect its potential exposure 

under 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.”
6 No. 22-1983 

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 coverage based on the bacteria exclusion. Emily Anderson, the 

claims adjuster who processed the claim, made the determination based on the materials Durham had provided; she

did not seek any additional information. She did, however,

invite Don Durham to submit further information if he 

wished. She also asked him to forward any amended pleadings 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 

defense 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 Enterprises 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.
No. 22-1983 7 

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.” 

Under Missouri law, which governs this insurance dispute, 

Durham had a statutory duty to notify Ohio Security of the 

agreement within 30 days. MO. REV. 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 October 9 adopted Harris’s uncontested findings of 

fact and conclusions 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 Security was not a party to the lawsuit and the insurance policy was not in the record. Specifically, the judge 

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 

provide his or her insurer or insurers with a copy of the 

executed contract and a copy of any such action.

MO. REV. STAT. § 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 involving the claim for damages within thirty days after receipt of 

such notice.”).
8 No. 22-1983 

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 insurer was estopped from raising policy 

defenses to coverage. 

On December 7—after the judgment became final and the 

30-day time to appeal had expired, see ILL. SUP. CT. 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 judgment on Ohio Security’s duty to defend. The judge held that 

the bacteria exclusion bars coverage, the “bodily consumption” 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 

issued 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 
No. 22-1983 9 

judgment in its favor followed necessarily from the judge’s 

conclusion that it had no duty to defend. 

The judge agreed with Ohio Security. He explained that 

because the duty to defend is broader than the duty to 

indemnify, his ruling on the duty to defend necessarily 

resolved all remaining insurance issues in the insurer’s 

favor. Without addressing Harris’s Rooker–Feldman argument, the judge entered final judgment for Ohio Security.

Harris died shortly after judgment was entered. His attorney joined with Durham’s counsel to file a timely notice 

of appeal. But the notice erroneously listed Harris as the

plaintiff-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. 

I. Discussion

As we’ve just noted, Harris’s estate and Durham filed a 

joint appeal. But Harris’s estate alone has shouldered the 

burden of developing an appellate challenge to the district 

court’s judgment. That’s not surprising. With its immunity

from collection 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

doctrine 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
10 No. 22-1983 

this issue it filed a separate motion for sanctions under 

Rule 38 of the Federal Rules of Appellate Procedure. The 

insurer also defends the judge’s no-coverage ruling on the 

merits. 

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 

doctrine acquired its name: cases brought by state-court 

losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of 

those judgments.” 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 system. The Supreme Court has appellate jurisdiction to review and modify or reverse a statecourt judgment; the lower federal courts do not. Id. at 291–

92. 

In keeping with the doctrine’s rationale and narrow application, the Supreme Court has held that Rooker–Feldman

does not apply “where the party against whom the doctrine 

is invoked was not a party to the underlying state-court 

proceeding.” 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. 
No. 22-1983 11 

Because Ohio Security was not a party to the Harris litigation in state court and is not a party to the state-court 

judgment 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 

“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 decedent.” Id.

The Court’s example makes sense considering the logic of 

the doctrine: a decedent’s estate simply steps into the decedent’s shoes and like the decedent cannot seek de facto

appellate 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 foreclosed by Lance and De Grandy. Subject-matter 

jurisdiction is secure.

Turning to the merits, the estate challenges the judge’s 

determination that Ohio Security had no duty to defend 

Durham in the state litigation. That ruling turned on the 

insurance policy’s bacteria exclusion and the exclusion’s 

“bodily 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 insurance-coverage dispute. 
12 No. 22-1983 

When sitting in diversity, we are bound by controlling 

decisions of the state’s highest court, and when the state’s 

highest 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 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 determined 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. Burlington Ins. Co., 235 S.W.3d 33, 39 (Mo. Ct. App. 

2007) (emphasis 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 apparent [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, 
No. 22-1983 13 

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. (quoting 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 through reasonable investigation, the insured

must point to evidence of what the insurer would have 

found through reasonable investigation that would have 

brought the claim within the policy’s coverage. Interstate 

Bakeries Corp. v. OneBeacon Ins. Co., 686 F.3d 539, 544 (8th Cir. 

2012) (applying Missouri 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 

language 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 statecourt suit alleged that Harris “suffered numerous infections”

in part because Durham “negligently and carelessly failed to 

properly clean and sanitize [the] dialysis center.” The com-
14 No. 22-1983 

plaint itself contains no specifics about what type of infections Harris suffered, 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 infection. Accordingly, based on the allegations in the amended complaint and the details in the attached certificate of merit, the bacteria exclusion plainly 

applies. 

The estate resists this conclusion, arguing that it’s inappropriate 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 irrelevant in this context. The certificate of merit was 

attached to the amended complaint and provided facts 

known to the insurer at the outset of the case; it’s not offlimits 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 investigation, criticizing the claims adjuster for denying 

coverage without first seeking medical records or other 

information related 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 identified any such facts, let alone 

provided evidence to back up this argument. 
No. 22-1983 15 

Finally, the estate contends that this case falls within the 

bacteria exclusion’s “bodily consumption” exception. To 

repeat, the exception provides that the exclusion “does not 

apply to any ... bacteria that are, are on, or are contained in, 

a good or product intended for bodily consumption.” The 

estate bears the burden of showing that the exception applies. See Trans World Airlines, Inc. v. Associated Aviation 

Underwriters, 58 S.W.3d 609, 622 (Mo. Ct. App. 2001). 

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 

motion, neither of them developed an argument about its 

application. 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 adequately preserve this issue, the estate made only minimal 

effort 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 

consumption” that might have caused Harris’s injuries. 

Instead, it returned to its refrain that the claims adjuster did 

not adequately investigate the applicability of the bacteria 

exclusion but again did not explain why the bodilyconsumption exception might have applied or how a reasonable investigation would have made that apparent. 

At oral argument the estate suggested for the first time 

that the dialysis machines caused Harris’s infections and 
16 No. 22-1983 

could be considered a good or product “intended for bodily 

consumption” 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 statecourt suit. The amended complaint alleged that the clinic 

operators failed to (1) “timely change the diasafe filters”; 

(2) “properly maintain the premises to minimize risk of 

infection to patients”; and (3) “properly maintain dialysis 

machines and equipment to minimize 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 argument 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 

Security 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 

without merit.” Harris N.A. v. Hershey, 711 F.3d 794, 802 (7th 

Cir. 2013) (quotation marks omitted). The Rooker–Feldman

argument was clearly foreclosed by the Supreme Court’s 
No. 22-1983 17 

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 appeals.” Harris N.A., 711 F.3d at 802. We 

decline to award sanctions on this discrete issue. The Rule 38 

motion is denied.

AFFIRMED; RULE 38 MOTION DENIED.