WASHINGTON – A federal judge refused Friday to dismiss a suit that a New Jersey man filed against his Delmar parents for injuries he said he received when a tree his father was trying to remove fell on him.
The latest court fight is not between father and son, however, but between the family and their insurer, Nationwide Insurance Co., which could be responsible for the $500,000 the son is seeking in damages.
Kevin Potter was helping his parents garden at their Maryland home in November 1999 when his father, Harry, tried to remove a 60-foot tree using his Ford Ranger. That “caused the tree to fall, strike and injure” Kevin, according to court records.
Kevin sued and his parents, who were acting as their own attorneys, admitted to every point in his suit. They then turned to Nationwide Insurance Co. to cover the cost of their son’s injuries under their homeowner’s policy, according to court records.
Nationwide joined the case as a defendant in May 2000. When it sought to question Kevin Potter, he asked the court to block the questioning on the grounds that his injuries “rendered him incapable of responding,” according to court documents.
The court refused, and ordered Potter to give “complete and unevasive” answers to Nationwide.
In January, Nationwide asked for the case to be dismissed, citing deficient answers by Potter to 10 of its questions. The court refused that motion on March 7, but again ordered Potter to supply the answers within 21 days, outlining possible sanctions if he did not.
In the latest action, Nationwide asked the court to reconsider its March decision and to dismiss the case. It said there were 18 additional “deficient discovery responses” that it did not include in its earlier motion, in the interest of “judicial economy.”
But U.S. Magistrate Judge Paul W. Grimm, in an order published Friday, told Nationwide that it is “too late now to come back for more.”
“Nationwide had the opportunity to raise all perceived deficiencies in Mr. Potter’s (Kevin’s) discovery responses when it filed its motion to dismiss. It purposely chose only to raise 10,” Grimm said.
He ordered the case to move forward.
It is the sixth ruling in a court saga that has seen son sue parents, parents sue insurance company, insurance company sue parents, and parents counter-sue.
Nationwide’s cross-claim against Harry and Marguerite Potter challenges the company’s “duty to defend” the parents against Kevin’s $500,000 damage claim. The company said Harry Potter failed to reveal an earlier insurance judgment against him when he filled out an application with Nationwide.
The Potters filed a cross-complaint against Nationwide on six counts in December, including a claim that the Nationwide employee who showed up at their home to check on their claim was trespassing because they had not given her permission to come on to their property.
The attorney representing Nationwide would not comment on any facts related to the case. The Potters could not be reached for comment Friday.