American Contractor's Indemnity Company v. A.C.I. Contracting, Inc. et al

Filing 55

MEMORANDUM OPINION. Signed by Honorable Jimm Larry Hendren on September 1, 2010. (tg)

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American Contractor's Indemnity Company v. A.C.I. Contracting, Inc. et al Doc. 55 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION AMERICAN CONTRACTOR'S INDEMNITY COMPANY v. A.C.I. CONTRACTING, INC.; SHANE ANDERS; AMY ANDERS; JUSTIN WINBERRY; and EMILY WINBERRY M E M O R A N D U M OPINION Now on this 1st day of September, Motion 2010, For comes on for Civil No. 07-5203 PLAINTIFF DEFENDANTS consideration plaintiff's Renewed Summary Judgment ( d o c u m e n t #51), to which there has been no response, and from said motion, and the supporting documentation, the Court finds and o r d e r s as follows: 1. Plai ntiff American Contractor's Indemnity Company ( " A C I C " ) brought suit, alleging that it issued Performance and Payment Bonds on two contracts in which defendant A.C.I. C o n t r a c t i n g , Inc. ("ACI") agreed to perform services, and that the i n d i v i d u a l defendants signed an indemnity agreement in support of these bonds. ACIC further alleged that ACI defaulted on its o b l i g a t i o n s under the contracts. ACIC sought to recover its losses o n the bonds, as well as costs and attorney fees. D e f e n d a n t s ACI and Shane Anders went into default; defendants A m y Anders and Emily Winberry admitted liability; and the Court e n t e r e d summary judgment against defendant Justin Winberry on the i s s u e of liability. B e f o r e the issue of damages could be resolved by trial, Amy Anders and Emily Winberry filed for bankruptcy, which resulted in A C I C ' s claims against them being stayed. Judgment Winberry. O n February 2, 2010, at ACIC's request, the stay imposed by b a n k r u p t c y proceedings was lifted as to Amy Anders, and the case as t o her was set for trial on September 13, 2010. s u m m a r y judgment against Amy Anders. ACIC now moves for was entered against ACI, Following a bench trial, Anders, and Justin Shane 2. Summary judgment should be granted when the record, viewed in the light most favorable to the nonmoving party, and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. 31 F.3d 696 (8th Cir. 1994). Walsh v. United States, Summary judgment is not appropriate unless all the evidence points toward one conclusion, and is susceptible of no reasonable inferences sustaining the position of the nonmoving party. Cir. 1995). Hardin v. Hussmann Corp., 45 F.3d 262 (8th The burden is on the moving party to demonstrate the however, once the non-existence of a genuine factual dispute; moving party has met that burden, the nonmoving party cannot rest on its pleadings, but must come forward with facts showing the existence of a genuine dispute. City of Mt. Pleasant, Iowa v. Associated Electric Co-op, 838 F.2d 268 (8th Cir. 1988). 3. Pursuant to Local Rule 56.1, ACIC filed a statement of -2- facts which it contends are not in dispute. Amy Anders has not come forward to dispute this statement, and in the absence of any dispute, the Court finds the facts to be as follows: * T o induce ACIC to issue Performance and Payment Bonds on b e h a l f of ACI Contracting, Inc., d/b/a Anders Concrete ("ACI" or "Anders Concrete"), Amy Anders and others executed a General I n d e m n i t y Agreement in favor of ACIC. * U n d e r the terms of the General Indemnity Agreement, Amy A n d e r s and the other indemnitors agreed to indemnify and hold ACIC h a r m l e s s from any and all "demands, liabilities, losses, costs, d a m a g e s , attorney's fees and expenses of whatever kind or nature t o g e t h e r with interest thereon at the maximum rate allowed by law, w h i c h arise by reason of, or in consequence of, the execution" of t h e bonds by ACIC on behalf of Anders Concrete and in enforcing the t e r m s of the General Indemnity Agreement. * A C I C issued two Performance and Payment Bonds, Bond No. 2 9 5 9 3 4 in the amount of $235,705.00 and Bond No. 296006 in the a m o u n t of $470,653.00, on behalf of Anders Concrete in favor of M i d - T e c , Inc. ("Mid-Tec"), as Obligee on two contracts between MidT e c and Anders Concrete. * A n d e r s Concrete defaulted on its contracts with Mid-Tec, a n d Mid-Tec made a claim against Bond No. 295934 in the amount of $102,832.02 $330,312.40. and against Bond No. 296006 in the amount of -3- * A m y Anders failed to honor calls to post collateral s e c u r i t y with ACIC as required by the General Indemnity Agreement. * A m y Anders failed to produce financial books and records a s required by the General Indemnity Agreement. * O n November 13, 2008, during a settlement conference in t h i s case, Amy Anders admitted liability for the allegations in the Complaint. * F o l l o w i n g an investigation into Mid-Tec's claims, on D e c e m b e r 5, 2008, ACIC paid Mid-Tec $15,355.04 on Bond No. 295934 a n d $259,734.65 on Bond No. 296006 to partially resolve Mid-Tec's claims. * On February 6, 2009, upon receipt and review of a d d i t i o n a l documentation from Mid-Tec, ACIC resolved the balance of M i d - T e c ' s claims against the bonds and paid Mid-Tec an additional $ 4 0 , 0 0 1 . 5 9 on Bond No. 295934 and an additional $42,242.64 on Bond N o . 296006. * attorney's A s of May 31, 2010, ACIC had incurred $104,230.24 in fees in this matter, as well as $6,314.91 in c o n s u l t a n t ' s fees and related expenses, and $1,774.85 in witness t r a v e l expenses. These are recoverable sums under the General I n d e m n i t y Agreement, with the exception of costs associated with ACIC's participation in settlement conference in the sum of $ 3 , 3 9 0 . 3 7 - which were assessed by the Court against Shane Anders, Justin Winberry and Anders Concrete only and the costs and -4- expenses incurred by ACIC between December 8, 2008, and December 2 4 , 2008, during which time the action against Amy Anders was subject to the automatic stay of bankruptcy, in the sum of $ 7 , 8 0 5 . 3 0 . Accounting for those deductions, there is now due to A C I C from Amy Anders the sum of $458,458.25. 4. finds T h e r e being no dispute about the above facts, the Court plaintiff's Renewed Motion For Summary Judgment that ( d o c u m e n t #51) should be, and same hereby is, granted, and judgment i n favor of ACIC as against Amy Anders in the sum of $458,458.25 w i l l be entered by separate document contemporaneously herewith. I T IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN U N I T E D STATES DISTRICT JUDGE -5-

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