Liberty Mutual Insurance Company v. Sumo-Nan LLC

Filing 159

ORDER GRANTING LIBERTY MUTUAL INSURANCE COMPANY'S 142 MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I AGAINST DEFENDANT SUMO-NAN LLC. Signed by JUDGE DERRICK K. WATSON on 11/18/2015. (ecs, )CERTIFICATE OF SERV ICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

LIBERTY MUTUAL INSURANCE
COMPANY, a Massachusetts
corporation,
Plaintiff,

vs.

CIVIL NO. 14-00520 DKW-KSC
ORDER GRANTING LIBERTY
MUTUAL INSURANCE COMPANY’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT AS TO COUNT I
AGAINST DEFENDANT SUMO-NAN
LLC

SUMO-NAN LLC, a Hawaii limited
liability company; NAN, INC., a Hawaii
corporation, et al.
Defendants.

ORDER GRANTING LIBERTY MUTUAL INSURANCE COMPANY’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO COUNT I AGAINST DEFENDANT SUMO-NAN LLC

INTRODUCTION
Plaintiff Liberty Mutual Insurance Company (“Liberty Mutual”) seeks partial
summary judgment on its breach of contract claim against Sumo-Nan LLC, based
upon Sumo-Nan’s failure to indemnify. After Sumo-Nan failed to pay construction
contractors associated with a project that Sumo-Nan had contracted to build for the
Department of the Army, Liberty Mutual stepped in, allegedly paying these

contractors more than $1.6 million, pursuant to a Miller Act Bond it had issued to
Sumo-Nan. Because Sumo-Nan is obligated to indemnify Liberty Mutual under
the applicable agreements of indemnity, Liberty Mutual’s motion is GRANTED.
BACKGROUND
Liberty Mutual brings claims for (1) Breach of Contract of Indemnity; (2)
Unjust Enrichment; and (3) Quia Timet (by means of an injunction preventing the
transfer of assets) against defendants Nan, Inc.; Laumaka LLC; Patrick Shin; Mariko
Kaneko Shin; and the Shin Trust (collectively, the “Nan Defendants”); Su-Mo
Builders, Inc., Su Yong Yi, and Maureen D. Yi (collectively, the “Sumo
Defendants”); and Sumo-Nan. The instant motion seeks summary judgment on
Count I as to Sumo-Nan only.1
Liberty Mutual’s claims arise from a Miller Act bond it issued on behalf of
Sumo-Nan in connection with a construction project at Tripler Army Medical
Center, Contract No. W9128A-11-C-0006 (“TAMC Project”). The Miller Act
required Sumo-Nan to furnish the government with such a performance and
payment bond. See 40 U.S.C. § 3131 et seq.; see also United States ex rel. Int’l

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Su-Mo Builders, Inc. and Nan, Inc. entered into a joint venture to operate Sumo-Nan. Su-Mo
Builders, Inc. is the managing joint venturer with a 51% participation interest in the profits and
losses. Nan, Inc. is 49 % owner of Sumo-Nan. Declaration of Travis Remick ¶ 14.

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Bus. Machines Corp. v. Hartford Fire Ins. Co., 112 F. Supp. 2d 1023, 1029 (D. Haw.
2000) (“Under the Miller Act . . . , a general contractor on a federal construction
project must post a bond to protect all suppliers of labor and material for the
project.”). Liberty Mutual has issued over seventy construction surety bonds
(totaling over $149,000,000) on behalf of joint ventures between Su-Mo Builders,
Inc. and Nan, Inc., in which Su-Mo Builders, Inc. was the managing joint venturer.
Remick Decl. ¶ 18. And Liberty Mutual has issued Miller Act bonds for two other
joint venture projects under the Sumo-Nan name, in addition to the TAMC Project
bond at issue in this case. Remick Decl. ¶ 17.
As partial consideration for its agreement to furnish bonds on behalf of
Sumo-Nan, Liberty Mutual and all defendants executed General Agreements of
Indemnity, including certain Amendments (collectively, “GAI”). The Nan
Defendants executed the 2003 GAI, dated October 10, 2003; and Sumo-Nan was
added as a Principal and Indemnitor by its execution of Amendment No. 9, dated
March 25, 2010. See Ex. 3 (2003 GAI), Ex. 4 (Amendment No. 9), attached to
Remick Decl. Under the GAI, each of the defendants, jointly and severally, agreed
to indemnify Liberty Mutual against any liability for losses, fees, costs, and
expenses that Liberty Mutual incurred as a consequence of issuing bonds on behalf
of Sumo-Nan or as a consequence of a breach of the GAI.
3

On or about May 26, 2011, Liberty Mutual, as surety, issued to Sumo-Nan, as
principal, a Performance and Labor & Material Payment Bond No. 023-017-103,
naming as obligee the United States of America, in the penal sum of $15,996,619.00.
The Bond is signed by Su Yong Yi as the Managing Partner of Sumo-Nan. See Ex.
5 (Bond), attached to Remick Decl.
Sumo-Nan was unable to meet its obligations on the TAMC Project, and as a
result, Liberty Mutual received claims on the Bond, including demands from
subcontractors and suppliers of Sumo-Nan, in excess of $1,638,409.00.
Declaration of Sam Barker ¶¶ 12-14; Ex. 8 (10/31/14 Letter). Liberty Mutual made
a demand to defendants to deposit cash or other property as collateral security, to
protect Liberty Mutual from claims on the Bond, but defendants have not complied
with that demand. Barker Decl. ¶¶ 7-10; Ex. 8 (10/31/14 Letter). Liberty Mutual
contends that all defendants failed to perform under the TAMC Project, the GAI,
and the Bond, whereas Liberty Mutual performed its obligations under the GAI and
the Bond. Complaint ¶¶ 33-36. Liberty Mutual now seeks partial summary
judgment on its Count I claim for breach of contract against Sumo-Nan.

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STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
DISCUSSION
I.

Breach of GAI by Sumo-Nan (Count I)
Because there are no genuine issues of material fact with respect to

Sumo-Nan’s liability, Liberty Mutual is entitled to partial summary judgment on its
Count I claim that Sumo-Nan breached its obligations under the GAI.
Liberty Mutual presents unrebutted evidence satisfying the elements of its
breach of contract claim against Sumo-Nan, including: (1) the contracts at issue (the
Bond, 2003 GAI and Amendment No. 9); (2) the parties to the contracts (Liberty
Mutual and Sumo-Nan); (3) Liberty Mutual’s performance under the contracts; (4)
the particular provision violated by Sumo-Nan (indemnity provision); and (5) when
and how Sumo-Nan breached the GAI by refusing to indemnify Liberty Mutual.
See Evergreen Eng’rg, Inc. v. Green Energy Team LLC, 884 F. Supp. 2d 1049, 1059
(D. Haw. 2012); see also Liberty Mutual Concise Statement of Facts (“CSOF”)
¶¶ 3-10.

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Sumo-Nan does not dispute that it is a party to the GAI (under Amendment
No. 9), or that it failed to reimburse or exonerate Liberty Mutual once Liberty
Mutual had made payments on the Bond. In fact, although Sumo-Nan
acknowledges that it has “defaulted” under the GAI, it contends that its
non-performance is excused by Liberty Mutual’s purported conduct. In opposition
to the motion, Sumo-Nan, with neither evidentiary support nor factual clarity, makes
repeated circular assertions to excuse its non-performance: “[Liberty Mutual’s]
failure to properly identify the Sumo Defendants as Indemnitors which caused Nan’s
discharge as indemnitor, prevented [Sumo-Nan] from performing under the GAI by
or through its indemnitors, and was the sole cause of [Sumo-Nan’s] default.”
Sumo-Nan Mem. in Opp. at 8; see also Sumo-Nan CSOF ¶ 14 (“[Liberty Mutual]
prevented [Sumo-Nan] from performing under the GAI by or through its
indemnitors, and is the sole cause of [Sumo-Nan’s] default.”); Freestone Decl. ¶ 5
(“[Liberty Mutual] has prevented [Sumo-Nan] from performing its obligations
under the GAI by or through its Indemnitors, and is the sole cause of [Sumo-Nan’s]
default.”); Sumo-Nan Mem. in Opp. at 3 (“[Liberty Mutual] prevented [Sumo-Nan]
from performing its obligations to pay its subcontractor’s claims by or through its
Indemnitors. [Liberty Mutual’s] acts and omissions violated the Implied Condition
Rule, and is the proximate cause of [Sumo-Nan’s] default under the GAI.”).
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More specifically, Sumo-Nan argues that Liberty Mutual is not entitled to
summary judgment because it fails to establish the third, fourth, and fifth elements
of its breach of contract claim:
By violating the Implied Condition, [Liberty Mutual] has failed
to satisfy Element 3 requiring [Liberty Mutual] to perform “all
the terms covenants and conditions on its part to be performed
under the GAI and TAMC Bond.” Elements 4 and 5 have not
been satisfied because [Liberty Mutual’s] violation of the
Implied Condition Rule has excused [Sumo-Nan] from any
obligation to hold harmless Liberty for claims made on the
TAMC Bond.” Stanford Carr Development v. Unity House,
141 P.3d 459, 477 (Hawaii 2006).
Sumo-Nan Mem. in Opp. at 7 (some citations omitted).
With respect to the third element — Liberty Mutual’s performance —
Sumo-Nan does not elaborate further on the specific “terms covenants and
conditions” of the GAI or the Bond that Liberty Mutual failed to perform. To the
contrary, the summary judgment record demonstrates that Liberty Mutual issued the
Bond; received claims on the Bond; provided Sumo-Nan written notice of the claims
under the Bond; and paid claims on the Bond. See Exs. 5-8. Sumo-Nan creates no
genuine issue of fact with respect to Liberty Mutual’s performance through mere
allegations that lack any evidentiary basis.
To the extent Sumo-Nan contends that its own performance is excused
because Liberty Mutual violated the “Implied Condition Rule,” the argument is
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without merit. Sumo-Nan cites Stanford Carr Development v. Unity House and
Ikeoka v. Kong, positing that its “non-performance of the contract was through no
fault of its own, and [Liberty Mutual], without legal excuse, actually prevented
[Sumo-Nan] from performing.” Sumo-Nan Mem. in Opp. at 6. Neither the law
nor the facts put forward by Sumo-Nan support its assertion.
First, while Stanford Carr Development v. Unity House, 111 Hawai‘i 286,
141 P.3d 459 (2006), and Ikeoka v. Kong, 47 Haw. 220, 386 P.2d 855(1963),
generally address estoppel and other affirmative defenses, they provide no basis to
excuse Sumo-Nan’s non-performance here. Neither case supports Sumo-Nan’s
asserted defense of the “Implied Condition Rule.”2

2

Stanford Carr Development examined jury instructions for the affirmative defenses of breach of
the duty of good faith and fair dealing and prevention of performance in the context of partnership
liability and fiduciary duty. Those duties are not implicated here. In any event, in Stanford Carr
Development, the Hawaii Supreme Court held that, even if the jury instructions as given were
improperly worded in the context of a “lender-borrower relationship,” rather than between
fiduciaries, there was substantial evidence to support the jury’s verdict that the defendant actually
prevented plaintiff’s performance. The instruction “prevention of performance” stated in part:
“To prevail on the affirmative defense, Plaintiffs must prove that their non-performance of the
contract was through no fault of the Plaintiffs and that Defendant . . . without legal excuse, actually
prevented Plaintiffs from performing.” 111 Hawai‘i 286, 304, 141 P.3d 459, 477 (2006). The
court catalogued the extensive record evidence of defendant’s conduct “supporting the jury’s
verdict that [defendant’s] self-serving actions were a breach of the duty of good faith and fair
dealing and impaired the success of the Trovare Project, thus causing [plaintiff’s] failure to pay
back its loan.” Id. at 304, 141 P.3d at 477. Sumo-Nan fails to present any remotely similar
evidence here and raises no genuine issue of material fact on this point.
Likewise, Ikeoka does not assist Sumo-Nan. Under the so-called “prevention doctrine,” a
condition precedent can be waived or excused if the promisor’s conduct prevents or hinders
fulfillment of the condition. See Ikeoka v. Kong, 47 Haw. 220, 228, 386 P.2d 855, 860 (1963)

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Second, Sumo-Nan sets forth no facts demonstrating any act or omission by
Liberty Mutual that prevented Sumo-Nan’s performance. Even if “Nan and
[Sumo-Nan] were informed by [Liberty Mutual] that due to a ‘scrivener’s error’ the
Sumo Defendants had been excluded as indemnitors under the GAI,” Sumo-Nan’s
performance was not thereby excused. Freestone Decl. ¶ 3. Nothing in any of the
agreements offered by the parties obligated Liberty Mutual to pursue each of its
indemnitors, or each of its indemnitors in any particular order, much less offered
Sumo-Nan absolution in the event Liberty Mutual chose to pursue it first.
Moreover, whatever Liberty may have done initially, it has, in fact, sought
indemnification from the Sumo Defendants under the GAI.3 See, e.g., Complaint;

(“[N]o one can avail himself of the non-performance of a condition precedent, who has himself
occasioned its non-performance.”). “It is a general principle of contract law that if one party to a
contract hinders, prevents or makes impossible performance by the other party, the latter’s failure
to perform will be excused.” American Elec. Co., LLC v. Parsons RCI, Inc., 2015 WL 1966466,
at * 10 (D. Haw. Apr. 30, 2015) (quoting 13 Williston on Contracts § 39:3 (4th ed., updated
2014)); see also Restatement (Second) of Contracts § 245 cmt. a (1981) (“Where a duty of one
party is subject to the occurrence of a condition, the additional duty of good faith and fair dealing
imposed on him under § 205 may require some cooperation on his part, either by refraining from
conduct that will prevent or hinder the occurrence of that condition or by taking affirmative steps
to cause its occurrence.”). As discussed elsewhere, even construing Sumo-Nan’s arguments
liberally, Liberty Mutual’s purportedly wrongful actions did not hinder Sumo-Nan’s performance.
Cf. 13 Williston on Contracts § 39:3 (“Under the doctrine, a contracting party whose performance
of its promise is prevented by the other party is not obligated to perform and is excused from any
further offer of performance.”). Accordingly, the doctrine of prevention does not bar or estop
Liberty Mutual’s breach of contract claim against Sumo-Nan.
3
Indeed, given the contractual right to do so, pursuing any other course, as alleged by Sumo-Nan,
simply makes no sense.

9

Sumo Defendants’ Answer; Barker Decl. ¶ 6-10. Thus, Sumo-Nan fails to create a
genuine issue of fact that an “implied condition” of the 2003 GAI or Amendment
No. 9 was “violated” by Liberty Mutual and that this somehow prevented Sumo-Nan
from performing its obligations.4
Regardless of the status of either the Nan Defendants or Sumo Defendants as
indemnitors, Sumo-Nan itself is bound under Amendment No. 9 by the terms of the
2003 GAI. It fails to present any evidence to the contrary. Any argument relating
to Nan, Inc.’s purported discharge is untethered from Sumo-Nan’s independent
obligation under the GAI. To be clear, in opposition to the motion, Sumo-Nan
presents no facts showing that Liberty Mutual did anything to prevent Sumo-Nan’s
performance. Under the GAI, Sumo-Nan (as indemnitor and principal), is
obligated to:
exonerate, hold harmless, indemnify, and keep indemnified the
Surety from and against any and all liability for losses, fees, costs
4

The source of the “implied condition” is vague, but appears to be an undated “request” by Nan,
Inc. to Liberty Mutual—not an agreement between the parties—to seek indemnification from the
Sumo Defendants:
Nan, Inc. is 49% owner of [Sumo-Nan] and was ready, willing and able to
pay [Sumo-Nan’s] subcontractors’ claims under the TAMC Bond, but
requested that [Liberty Mutual] also demand exoneration and
indemnification from the Sumo Defendants as co-guarantors under the
GAI.
Freestone Decl. ¶ 2.

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and expenses of whatsoever kind or nature including, but not
limited to pre- and post-judgment interest from the date of
breach of this Agreement or a breach of any other written
agreements between or for the benefit of the Surety and the
Indemnitor(s) and/or Principal(s) . . . court costs, counsel fees,
accounting, engineering and any other outside consulting fees
and from and against any and all such losses, fees, costs and
expenses which the Surety may sustain or incur: (1) by reason of
being requested to execute or procure the execution of any Bond;
or (2) by having executed or procured the execution of any Bond;
or (3) by reason of the failure of the Indemnitors or Principals to
perform or comply with any of the covenants and conditions of
this Agreement or Other Agreements . . . If the Surety
determines, it its sole judgment, that potential liability exists for
losses and/or fees, costs and expenses for which the Indemnitors
and Principals will be obligated to Indemnify the Surety under
the terms of this Agreement or Other Agreements, the
Indemnitors and/or Principals shall deposit with the Surety,
promptly upon demand, a sum of money equal to an amount
determined by the Surety or collateral security of a type and
value satisfactory to the Surety, to cover that liability . . . .
Ex. 3 (2003 GAI). When Liberty Mutual requested collateral security to cover
losses caused by claims made on the Bond, Sumo-Nan did not comply, failing to
deposit cash or other property to cover Liberty Mutual’s expenditures. See
Complaint ¶ 29; Sumo-Nan Answer ¶ 4; Liberty Mutual Ex. 8. Sumo-Nan
breached the GAI by failing to indemnify, exonerate, and hold harmless Liberty
Mutual. Accordingly, Liberty Mutual is entitled to summary judgment on Count I
against Sumo-Nan.

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II.

Sumo-Nan’s Rule 56(d) Request is Denied
Sumo-Nan requests time to conduct additional discovery pursuant to Federal

Rule of Civil Procedure 56(d) because Liberty Mutual’s “motion is premature and
should be denied on the ground that the facts essential to justify Sumo-Nan LLC’s
opposition to [the motion] cannot be presented because [Sumo-Nan’s] discovery of
Liberty Mutual’s employees and witness residing on the mainland [has] not been
completed[.]” Sumo-Nan Mem. in Opp. at 9. Rule 56(d) states:
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
Whether to deny a Rule 56(d) request for further discovery by a party
opposing summary judgment is within the discretion of the district court. Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 920-21 (9th Cir. 1996). To obtain a
continuance under Rule 56(d), the party opposing a motion for summary judgment
must make “(a) a timely application which (b) specifically identifies (c) relevant
information, (d) where there is some basis for believing that the information sought
actually exists.” Blough v. Holland Realty, Inc, 574 F.3d 1084, 1091 n.5 (9th Cir.

12

2009) (citation omitted). “A party requesting a continuance pursuant to Rule
[56(d)] must identify by affidavit the specific facts that further discovery would
reveal, and explain why those facts would preclude summary judgment.” Tatum v.
City & Cnty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). Moreover,
“[t]he burden is on the party seeking additional discovery to proffer sufficient facts
to show that the evidence sought exists.” Nidds, 113 F.3d at 921. The movant
must also show diligence in previously pursuing discovery. See Pfingston v. Ronan
Engineering Co., 284 F.3d 999, 1005 (9th Cir. 2002) (“The failure to conduct
discovery diligently is grounds for the denial of a Rule 56[d] motion.”).
Sumo-Nan’s effort falls short of the rule’s requirements. Counsel’s
declaration does not identify particular facts that the requested discovery would
reveal. Rather, it conclusorily states in pertinent part:
3. Facts essential to justify Sumo Nan LLC’s
(“SNLLC”) opposition to Liberty Mutual’s Motion for Partial
Summary Judgment cannot be presented because Nan, Inc.’s
depositions of Liberty Mutual’s employees, agents and witnesses
residing on the mainland, have not been conducted pending
determination of the relevant issues raised by the affirmative
defenses and counterclaims filed by SNLLC,[5] the Sumo
Defendants and Nan, Inc. herein.

5

The Court notes that Sumo-Nan did not assert any counterclaims against Liberty Mutual. See
11/4/2015 Order at 27 (“[T]he parties agree that the Nan Defendants do not assert any
counterclaims on behalf of Sumo-Nan LLC.”).

13

4. Nan’s proposed depositions include, without
limitation, Liberty Mutual employee, Sam Barker, its designated
representatives regarding the form of the Liberty Mutual General
Agreement of Indemnity, including drafting and interpretations
thereof. To minimize SNLLC’s fees and travel expenses, all the
issues need to be identified before taking the depositions of
Liberty Mutual’s employees and agents residing on the
mainland. Accordingly, SNLLC respectfully requests that the
court deny the motion, and allow SNLLC time to conduct
discovery of Liberty Mutual as to SNLLC’s affirmative
defenses, including the depositions of its employees and
designated witnesses.
Declaration of Samuel P. King, Jr. ¶¶ 3-4.
The declaration notably fails to identify any discoverable facts, fails to
identify the basis for believing that such facts exist, and fails to discuss what the
specific discovery sought would establish. Nor does the declaration establish the
requisite diligence. “Rule [56(d)] is not a license for a fishing expedition in the
hopes that one might find facts to support its claims.” Painsolvers, Inc. v. State
Farm Mut. Auto. Ins. Co., 732 F. Supp. 2d 1107, 1125 (D. Haw. 2010); see also
Tatum, 441 F.3d at 1100-01 (finding that an attorney declaration was insufficient to
support a Rule 56 continuance where the declaration failed to specify specific facts
to be discovered or explain how a continuance would allow the party to produce
evidence precluding summary judgment).

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Accordingly, the Court DENIES Sumo-Nan’s request for a Rule 56(d)
continuance.
CONCLUSION
For the foregoing reasons, Liberty Mutual’s motion for partial summary
judgment against Sumo-Nan LLC is GRANTED as to Count I.
IT IS SO ORDERED.
DATED: November 18, 2015 at Honolulu, Hawai‘i.

Liberty Mutual Insurance Company v. Sumo-Nan LLC, et al.; Civil No. 14-00520
DKW KSC; ORDER GRANTING LIBERTY MUTUAL INSURANCE
COMPANY’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO
COUNT I AGAINST DEFENDANT SUMO-NAN LLC

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