AZTEC ENGINEERING GROUP, INC. et al v. LIBERTY MUTUAL INSURANCE COMPANY et al

Filing 74

ORDER - Aztec-TYPSA's 54 Motion for Leave to File Amended Exhibits is GRANTED IN PART such that [50-3] is STRICKEN and DENIED IN PART such that the belatedly submitted exhibit filed with that motion, [54-3], will not be considered. For the rea sons stated herein, the Court GRANTS Aztec-TYPSA's 32 Motion for Summary Judgment and DENIES the Co-Sureties' 47 Motion for Summary Judgment. The Court DENIES Aztec-TYPSA's 49 Motion to Strike Allegations and Affirmative Defenses in the Co-Sureties' Answer, as well as the Co-Sureties' 59 Motion for Leave to File an Amended Answer. Final judgment in favor of Aztec-TYPSA in the amount of $4,678,451.61 plus prejudgment interest shall enter accordingly. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 4/18/2017. (JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
AZTEC ENGINEERING GROUP, INC.,
TECNICA Y PROYECTOS S.A.,
Plaintiffs,
vs.
LIBERTY MUTUAL INSURANCE
COMPANY,
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND,
XL SPECIALTY INSURANCE COMPANY,
AMERICAN HOME ASSURANCE
COMPANY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 1:16-cv-01657-JMS-TAB

ORDER
Plaintiffs Aztec Engineering Group, Inc., and Tecnica y Proyectos S.A. (collectively,
“Aztec-TYPSA”) have filed a claim on a Payment Bond issued by Defendants Liberty Mutual
Insurance Company, Fidelity and Deposit Company of Maryland, XL Specialty Insurance
Company, and American Home Assurance Company (collectively, the “Co-Sureties”) pursuant to
a Public-Private Agreement between the Indiana Finance Authority (“IFA”) and I-69 Development
Partners LLC (the “Developer”) for design and construction work on Section 5 of the I-69
expansion from Bloomington and Martinsville (the “Project”). Aztec-TYPSA seeks payment from
the Co-Sureties for design work it did for Isolux-Corsán, LLC (“Isolux-Corsán”),1 which was the

1

Isolux-Corsán sought to intervene in this litigation to assert a counterclaim against Aztec-TYPSA
and seek to stay the litigation to pursue arbitration, [Filing No. 35], but the Court denied that
motion, [Filing No. 57]. Isolux-Corsán has appealed that decision, [Filing No. 62], but briefing
before the Seventh Circuit Court of Appeals is currently suspended pursuant to Circuit Rule 33.
See PACER Case Locator, Seventh Circuit Court of Appeals Docket No. 17-1239, available at
www.pacer.gov (last visited April 17, 2017).

general contractor on the Project. The Co-Sureties denied Aztec-TYPSA’s claim. Aztec-TYPSA
and the Co-Sureties have filed cross-motions for summary judgment, presenting diametrically
opposed interpretations of the contracts at issue but each contending that summary judgment is
appropriate for the reasons stated therein. [Filing No. 32; Filing No. 47.] For the reasons that
follow, the Court enters summary judgment in favor of Aztec-TYPSA and awards it $4,678,451.61
plus prejudgment interest.
I.
APPLICABLE STANDARD OF REVIEW
A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear,
whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the
asserted fact by citing to particular parts of the record, including depositions, documents, or
affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the
materials cited do not establish the absence or presence of a genuine dispute or that the adverse
party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).
Affidavits or declarations must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R.
Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion
can result in the movant’s fact being considered undisputed, and potentially in the grant of
summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In
2

other words, while there may be facts that are in dispute, summary judgment is appropriate if those
facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.
2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d
892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th
Cir. 2009). The Court views the record in the light most favorable to the non-moving party and
draws all reasonable inferences in that party’s favor. Darst v. Interstate Brands Corp., 512 F.3d
903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder. O’Leary v. Accretive Health, Inc., 657
F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P.
56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that
they are not required to scour every inch of the record for evidence that is potentially relevant to
the summary judgment motion before them,” Johnson, 325 F.3d at 898. Any doubt as to the
existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension
Plan, 614 F.3d 684, 691 (7th Cir. 2010).
“The existence of cross-motions for summary judgment does not, however, imply that there
are no genuine issues of material fact.” R.J. Corman Derailment Servs., LLC v. Int’l Union of
Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, “[p]arties have different
burdens of proof with respect to particular facts; different legal theories will have an effect on
which facts are material; and the process of taking the facts in the light most favorable to the non3

movant, first for one side and then for the other, may highlight the point that neither side has
enough to prevail without a trial.” Id. at 648. Put another way, cross-motions for summary
judgment do not waive the right to a trial and, instead, are treated separately. McKinney v.
Cadleway Properties, Inc., 548 F.3d 496, 504 (7th Cir. 2008).
II.
BACKGROUND
The facts necessary to decide the pending cross-motions for summary judgment are
undisputed.2
A. The Project and the Public-Private Agreement
The Project involves upgrading approximately 21 miles of existing State Route 37 through
and around Bloomington and Martinsville. [Filing No. 33-1 at 1.] To carry out the Project, the
IFA entered into a Public-Private Agreement (the “PPA”) with the Developer on April 8, 2014.
[Filing No. 33-3 (portions of the PPA); Filing No. 50-4 (the fifty page Abbreviations and

Aztec-TYPSA set forth a “Statement of Material Facts Not in Dispute” supporting its request for
summary judgment. [Filing No. 33 at 4-12.] In response, the Co-Sureties failed to include a
section specifically setting forth any disputed material facts as required by Local Rule 56-1. [Filing
No. 48.] Instead, the Co-Sureties included a section titled “Summary of Relevant Facts,” which
reads like the argument section of a brief. [Filing No. 48 at 6-23.] Aztec-TYPSA also failed to
follow the Court’s specific guidance for filing and citing exhibits, as set forth in the Practices and
Procedures, by not citing to the ECF docket numbers and pages of the exhibits it submitted on
summary judgment. [Filing No. 8 at 16-18.] This made the Court’s review of the extensive record
unnecessarily cumbersome. The Court reminds both parties to review the Local Rules and
applicable Practices and Procedures in future cases.
2

4

Definitions section of the PPA).]3 The PPA acknowledges the intention of the State of Indiana “to
facilitate private sector investment and participation in the development of the Project via a publicprivate agreement.”

[Filing No. 33-3 (citing Indiana Code Article 8-15.5 (“Public-Private

Agreements for Toll Road Projects”).]
A section of the PPA titled “Payment and Performance Security” includes a subsection
titled “Design and Construction Security Requirements,” which provides as follows:

[Filing No. 33-3 at 28.] The PPA defines “Total Project Capital Cost” as follows:

[Filing No. 50-4 at 72.] The PPA defines “D&C Work,” “Design Work,” “Construction Work,”
and “Work” as follows:

3

The portion of the PPA initially designated by Aztec-TYPSA on summary judgment does not
include the vast majority of the Abbreviations and Definitions section of that contract. [Filing No.
33-3.] This significant omission is confusing at best and misleading at worst, given the omission
of certain key terms, such as “Construction Work.” [Filing No. 33-3 (including 5 of the 50 pages
of the Abbreviations and Definitions section of the PPA).] The Co-Sureties submitted additional
pages of the PPA with their response brief, [Filing No. 47-1 at 18-21], and Aztec-TYPSA finally
submitted all fifty pages of the Abbreviations and Definitions section with its reply brief, [Filing
No. 50-4]. Because the parties dispute the interpretation and application of various terms in the
PPA, Aztec-TYPSA should have designated the entire Abbreviations and Definitions section of
that contract with its initial brief. The record is now complete, however, so the Court will consider
the full Abbreviations and Definitions section as necessary.
5

***

***

***

[Filing No. 50-4 at 16; Filing No. 50-4 at 18; Filing No. 50-4 at 21; Filing No. 50-4 at 75.]
B. The Design-Build Contract
On April 8, 2014, the Developer entered into a Design-Build Contract (the “DBC”) with
an entity that ultimately assigned its obligations to Isolux-Corsán.4 [Filing No. 33-4 (the DBC);
Filing No. 33-1 at 2.] The DBC recognizes that pursuant to the PPA, the “Developer is authorized
and has agreed to undertake to design, construct, finance, operate and maintain the Project.”
[Filing No. 33-4 at 10.] The DBC recognizes that Isolux-Corsán was “selected by IFA to design,
construct, finance, operate and maintain the Project.” [Filing No. 33-4 at 10.] The DBC
contemplates Isolux-Corsán entering into subcontracts with contractors to facilitate the Project.

4

Because there is no dispute that the entity with which the Developer contracted in the DBC
assigned its rights to Isolux-Corsán, the Court will refer to Isolux-Corsán as if it were a party to
the DBC for the sake of simplicity.
6

[Filing No. 33-4 at 11.] The DBC requires Isolux-Corsán—as the “Design-Build Contractor”—to
obtain payment security as follows:

[Filing No. 33-4 at 15.] The DBC defines “D&C Work” and “Payment Bond” as follows:

***

[Filing No. 50-5 at 4; Filing No. 50-5 at 13.]
C. The Payment Bond
On August 20, 2014, the Co-Sureties issued a Payment Bond in the amount of $15,350,000.
[Filing No. 33-5.] Isolux-Corsán is the “Principal” on the Payment Bond. [Filing No. 33-5 at 1.]
7

The Payment Bond acknowledges that it is being executed as “one of the conditions of” the PPA
and the DBC, it specifically incorporates the DBC by reference, and it characterizes the DBC as a
contract “related to the performance of design and construction work for the Project . . . .” [Filing
No. 33-5 at 1.] With regard to its payment obligation, the Payment Bond provides as follows:
If [Isolux-Corsán] shall comply with all requirements of law and pay, as they
become due, all just claims for labor performed and materials and supplies
furnished upon or for the work under the [DBC], whether said labor be performed
and said materials and supplies be furnished under the original [DBC], any
subcontract, or any and all duly authorized modifications thereto, then these
presents shall become null and void; otherwise they shall remain in full force and
effect.
[Filing No. 33-5 at 1.]
D. The Engineering Services Agreement
On August 15, 2014, Isolux-Corsán5 entered into an Engineering Services Agreement (the
“ESA”) with Aztec-TYPSA “for the performance of professional consulting services in connection
with the project and work and services related to the development, construction and operations
during Construction Works of 21 miles of what is known as I-69, Section 5.” [Filing No. 33-6 at
5.] The ESA identified Aztec-TYPSA as the “Design-Consultant” and specified its “Scope of
Services” as follows:

5

As with the DBC, Isolux-Corsán is the assignee of an original party to the ESA, but since there
is no dispute that those rights were assigned to Isolux-Corsán, the Court will refer to Isolux-Corsán
as if it were a party to the ESA for the sake of simplicity.
8

[Filing No. 33-6 at 105.]
The ESA required Aztec-TYPSA to submit an Application for Payment each month with
supporting documentation. [Filing No. 33-6 at 16 (ESA ¶ 6.2).] Within 10 business days, IsoluxCorsán was required to either approve the Application for Payment or issue a written deficiency
notice to Aztec-TYPSA setting forth with specificity any items Isolux-Corsán refused to approve.
[Filing No. 33-6 at 16 (ESA ¶ 6.2).] Within 60 days of receiving an acceptable Application for
Payment, Isolux-Corsán “shall order its paying bank to issue the order of payment for all
undisputed amounts plus or minus any adjustments that are mutually agreed upon . . . .” [Filing
No. 33-6 at 17 (ESA ¶ 6.3).]
If Isolux-Corsán disputed any items in any Application for Payment, it could withhold
payment on the disputed items and pay the remaining amount of the Application for Payment.
[Filing No. 33-6 at 17 (ESA ¶ 6.4).] If the parties could not resolve the disputed items, the ESA
provided that Isolux-Corsán “shall pay [Aztec-TYPSA] the uncontested amount of the Application
for Payment.” [Filing No. 33-6 at 17 (ESA ¶ 6.4).] The ESA further provided that Isolux-Corsán
“shall be in breach under this [ESA]” if it “fails to make any payment due [Aztec-TYPSA] under
this [ESA] when due, provided that such payment is not subject to a Dispute.” [Filing No. 33-6 at

9

82 (ESA ¶ 19.3.1.1).] The ESA included an arbitration provision requiring Aztec-TYPSA and
Isolux-Corsán to arbitrate certain disputes.6 [Filing No. 33-6 at 87 (ESA ¶ 19.6).]
E. Isolux-Corsán’s Non-Payment and Federal Lawsuit
Aztec-TYPSA performed services pursuant to the ESA and submitted Applications for
Payment to Isolux-Corsán for those services. [Filing No. 33-1 at 3.] Isolux-Corsán “accepted
almost all of the invoices, but fully disputed some invoices and partially disputed portions of
others.” [Filing No. 33-1 at 3.] Isolux-Corsán failed to pay some of the undisputed items on the
Applications for Payment beginning in April 2015. [Filing No. 33-1 at 3.] Aztec-TYPSA issued
Notices of Default to Isolux-Corsán pursuant to the ESA for the items Isolux-Corsán had not timely
disputed pursuant to the procedure set forth in the ESA. [Filing No. 33-1 at 3-4 (citing Filing No.
33-7).] After continuing to work on the Project and not receiving payment, Aztec-TYPSA stopped
working on the Project on June 1, 2016. [Filing No. 33-1 at 5.]
The total of the items that Aztec-TYPSA submitted to Isolux-Corsán that Isolux-Corsán
did not dispute or pay pursuant to the ESA is $4,678,451.61.7 [Filing No. 33-1 at 6 (citing Filing
No. 33-10).] Aztec-TYPSA submitted a Statement to Sureties of Amount Due, [Filing No. 3311], but the Co-Sureties have not paid that claim, [see, e.g., Filing No. 1-13; Filing No. 33 at 12].

The Co-Sureties previously asked this Court to compel arbitration on Aztec-TYPSA’s claims
against the Co-Sureties in this litigation. [Filing No. 9.] The Court denied that request after finding
that “Aztec-TYPSA’s Complaint seeks payment from the Co-Sureties under the Payment Bond
for amounts that there is no evidence Isolux-Corsán disputed pursuant to the ESA. The ESA’s
arbitration provision cannot be read to encompass a dispute of this nature.” [Filing No. 30 at 9.]
6

7

Aztec-TYPSA designates evidence to support this amount. [Filing No. 32 at 2 (summary
judgment request for that amount); Filing No. 33-1 at 6 (affidavit stating that “the undisputed
amount owed now totals $4,678,451.61”) (citing Filing No. 33-10 (“Summary of Undisputed
Corsan Overdue Invoices”)).] While the Co-Sureties dispute that Aztec-TYPSA is entitled to this
amount, as set forth more fully below, they do not dispute the proffered amount or designate
contrary evidence.
10

On June 24, 2016, Aztec-TYPSA filed a Complaint against the Co-Sureties in this Court,
alleging that the Co-Sureties breached the Payment Bond by not paying the Statement of Amount
Due after more than sixty days elapsed. [Filing No. 1 at 9-10.] Aztec-TYPSA and the Co-Sureties
have filed Cross-Motions for Summary Judgment, which are now fully briefed and ready for the
Court’s consideration. [Filing No. 32; Filing No. 47.]
After filing its summary judgment briefs, Aztec-TYPSA filed a Motion for Leave to File
Amended Exhibits. [Filing No. 54.] The Co-Sureties do not object to the portion of AztecTYPSA’s motion asking to substitute an erroneously filed exhibit with the proper exhibit, [Filing
No. 55 at 1], but they do object to the extent Aztec-TYPSA uses the motion “to introduce extrinsic
evidence to add to, vary/contradict, or explain the clear and unambiguous terms of the Payment
Bond and the contracts to which the Payment Bond relates, which the terms of the extrinsic
evidence at issue and Indiana’s ‘four corners’ rule bar [Aztec-TYPSA] from doing[,]” [Filing No.
55 at 1]. The Court grants Aztec-TYPSA’s Motion for Leave to Amend Exhibits to the extent that
its erroneously filed exhibit is stricken,8 [Filing No. 50-3], but it denies the Motion for Leave to
Amend Exhibits to the extent that Aztec-TYPSA tries to belatedly introduce extrinsic evidence to
construe the contracts at issue, [Filing No. 54-3].
III.
DISCUSSION
Aztec-TYPSA moves for summary judgment on its claim against the Co-Sureties for
payment under the Payment Bond because it contends that there is no dispute that Isolux-Corsán
is liable for its non-payment of the claims that it did not timely dispute pursuant to the procedure

8

Aztec-TYPSA asks the Court to replace Filing No. 50-3 with Filing No. 54-2, but that is
unnecessary because the correct pages of the Payment Bond it asks the Court to consider are
already part of the designated evidence on summary judgment, [see Filing No. 33-5].
11

set forth in the ESA. [Filing No. 33 at 13-23.] In response, the Co-Sureties file a cross-motion for
summary judgment and contend that Aztec-TYPSA’s design services are not covered by the
Payment Bond. [Filing No. 48 at 25-38.] Alternatively, the Co-Sureties argue that even if the
Payment Bond covered Aztec-TYPSA’s design services, genuine issues of material fact preclude
summary judgment in Aztec-TYPSA’s favor because of alleged defenses, offsets, set-offs, and
counterclaims that Isolux-Corsán may have against Aztec-TYPSA. [Filing No. 48 at 39-47.]
Federal courts deciding state law claims under diversity jurisdiction apply the forum state’s
choice of law rules to select the applicable state substantive law. McCoy v. Iberdrola Renewables,
Inc., 760 F.3d 674, 684 (7th Cir. 2014) (citations omitted). If no party raises a choice of law issue
to the district court, “the federal court may simply apply the forum state’s substantive law.” Id.
Aztec-TYPSA and the Co-Sureties rely on Indiana law in their respective briefs, and the Court
will follow suit in its decision.9
A. Payment Bond Coverage for Design Services
In its motion, Aztec-TYPSA anticipates the Co-Sureties’ argument that the Payment Bond
does not cover the design work that Aztec-TYPSA performed for the Project. Aztec-TYPSA
emphasizes that the Payment Bond expressly incorporates the DBC and characterizes the DBC as
a contract “related to the performance of design and construction work.” [Filing No. 33 at 17-19
(citing Filing No. 33-5 at 1 (emphasis added)).] Aztec-TYPSA also emphasizes that the Payment
Bond states that it applies to “all just claims for labor performed and materials and supplies
furnished upon or for the work under the [DBC], whether said labor be performed and said

The Court has confirmed that based on the representations in the parties’ Amended Joint
Jurisdictional Statement, it can exercise diversity jurisdiction over this action. [Filing No. 28.]
Given the application of Indiana law, the Co-Sureties’ Supplemental Authority in Support of their
Motion for Summary Judgment, which directed the Court to a case recently decided by an
intermediate appellate court in Pennsylvania, is not persuasive. [Filing No. 72.]
9

12

materials and supplies be furnished under the original [DBC], any subcontract, or any and all duly
authorized modifications thereto.” [Filing No. 33 at 18-19 (citing Filing No. 33-5 at 1) (emphasis
added).] Aztec-TYPSA points out that there is no design exclusion in the Payment Bond, and it
asks the Court to enter summary judgment in its favor on its claim against the Co-Sureties. [Filing
No. 33 at 18-21.]
In response, the Co-Sureties contend that they are entitled to summary judgment because
the Payment Bond does not cover design services encompassed by the DBC and only covers “just
claims for labor performed” under the DBC. [Filing No. 48 at 25; Filing No. 48 at 33-38.] The
Co-Sureties argue that design services are not “labor” because the Payment Bond must be
interpreted in light of the surrounding circumstances and Indiana does not require payment bond
coverage for the design portion of public design-build construction projects. [Filing No. 48 at 26.]
The Co-Sureties emphasize that the statute referenced in the PPA “does not require design-build
contractors to provide payment bond coverage for the part of a public-private agreement that
includes design. In fact, Article [15.510] of Title 8 of the Indiana Code does not require designbuild contractors to provide any payment bond coverage whatsoever.” [Filing No. 48 at 27 (citing
Indiana Code Article § 8-15.5).] The Co-Sureties ask the Court to apply the “strict terms” of the
contracts at issue, and they cite case law that they argue confirms Indiana’s recognition of “the
distinction between design services and labor.” [Filing No. 48 at 28-30; Filing No. 48 at 36-38.]
In its reply brief, Aztec-TYPSA emphasizes that the Payment Bond does not exclude
design work, that it incorporates the DBC, and that the DBC covers design work. [Filing No. 50
at 23-24.] Aztec-TYPSA points out that Isolux-Corsán’s total bid amount for the DBC—including

While the Co-Sureties’ brief references Article 15.7, [Filing No. 48 at 27], they confirm in their
reply brief that they meant to reference Article 15.5 and instead made a scrivener’s error, [Filing
No. 53 at 17].
13
10

costs for design and engineering services—was $307,000,000 and that the Payment Bond was
issued for 5% of that total amount pursuant to the PPA and the DBC. [Filing No. 50 at 26.] It
argues that this confirms the Co-Sureties’ intent to cover design work. [Filing No. 50 at 26-27.]
Aztec-TYPSA rejects the Co-Sureties’ interpretation of the word “labor” in the Payment Bond to
exclude design services, pointing out that most of the cited statutes and case law are inapplicable.
[Filing No. 50 at 28.] Aztec-TYPSA urges the Court to construe the unambiguous language at
issue in the PPA, DBC, and the Payment Bond to include coverage for Aztec-TYPSA’s design
work, pointing out that the PPA only references Indiana Code 8-15.5 and that Article places no
restrictions on the scope of bond coverage. [Filing No. 50 at 29-33.]
In its final brief, the Co-Sureties emphasize that the Payment Bond is not an insurance
policy and that “a surety does not automatically become liable for all of its principal’s debts to
subcontractors by issuing a payment bond.” [Filing No. 53 at 3-4.] They contend that the Payment
Bond must be strictly construed and that the Court cannot add terms and conditions to extend
coverage. [Filing No. 53 at 4-5.] The Co-Sureties rely on the Payment Bond’s use of the term
“labor,” which they argue excludes design work, [Filing No. 53 at 6-7], and they reject AztecTYPSA’s reliance on the broad definition of the term “Work” in the PPA, [Filing No. 53 at 1114]. They conclude that neither the PPA nor the DBC required payment bond coverage for design
work and that, instead, they only required coverage for the portion of D&C Work based on a
portion of the Indiana Code “that does not require or even contemplate coverage for
design/engineering services.” [Filing No. 53 at 14-16 (citing Indiana Code 8-23-9, et seq.).]
Finally, although the Co-Sureties concede that “Indiana has adopted a policy of requiring surety
protection for certain services that are provided in the actual construction of public projects,” they

14

deny that it extends to “any services that do not relate to actual construction.” [Filing No. 53 at
16.]
Under applicable Indiana law, “a surety contract obligates the surety to answer for the debt,
default, or miscarriage of another.” BMD Contractors, Inc. v. Fid. & Deposit Co. of Maryland,
679 F.3d 643, 653 (7th Cir. 2012) (citation omitted). Surety contracts are not bilateral; instead,
they “create a tripartite relation between the party secured, the principal obligor, and the party
secondarily liable, and the rights, remedies, and defenses of a surety cannot be disassociated from
this relationship.” Id. Indiana surety law is “quite clear on two general points: (1) sureties are
generally liable only where the principal itself is liable; and (2) concurrently executed bonds and
the contracts they secure are construed together.” Id. at 654.
Surety contracts are interpreted using general contract standards. See id. at 653-54.
Interpretation of a written contract is typically a question of law for which summary judgment is
particularly appropriate. Zemco Mfg., Inc. v. Navistar Int’l Transp. Corp., 270 F.3d 1117, 1123
(7th Cir. 2001); Tri-Central High Sch. v. Mason, 738 N.E.2d 341, 344 (Ind. Ct. App. 2000). The
goal of contract interpretation is to ascertain and give effect to the parties’ intent, as reasonably
manifested by the language of the agreement. Reuille v. E.E. Brandenberger Const., Inc., 888
N.E.2d 770, 771 (Ind. 2008). The Court is required to “consider a contract’s provisions together
and in a way that harmonizes them.” Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 64445 (7th Cir. 2016) (citing Indiana law). Other contracts that are referred to in the contract being
interpreted “may be regarded as incorporated by the reference as a part of the contract and,
therefore, may properly be considered in the construction of the contract.” Id. at 644. This
principle also applies to statutes and regulations referenced in a contract. Id.

15

“Indiana follows ‘the four corners rule’ that extrinsic evidence is not admissible to add to,
vary or explain the terms of a written instrument if the terms of the instrument are susceptible of a
clear and unambiguous construction.” Univ. of S. Indiana Found. v. Baker, 843 N.E.2d 528, 532
(Ind. 2006). “Clear and unambiguous terms in the contract are deemed conclusive, and when they
are present [the Court] will not construe the contract or look to extrinsic evidence, but will merely
apply the contractual provisions.” Ryan v. Ryan, 972 N.E.2d 359, 364 (Ind. 2012). An ambiguity
does not arise simply because the parties disagree on the interpretation; instead, “language is
ambiguous only if reasonable people could come to different conclusions about its meaning.” RLI
Ins. Co. v. Conseco, Inc., 543 F.3d 384, 390 (7th Cir. 2008) (citing Simon Prop. Group, L.P. v.
Mich. Sporting Goods Distrib., Inc., 837 N.E.2d 1058, 1070 (Ind. Ct. App. 2005)).
The Payment Bond is a short contract that expressly incorporates the DBC and
characterizes the DBC as “related to the performance of design and construction work for the
Project.” [Filing No. 33-5 at 1 (emphasis added).] The DBC includes a payment security provision
titled “Design and Construction Security Requirements,” [Filing No. 33-4 at 15], that required
Isolux-Corsán to obtain and maintain a payment bond “required under Section 17.2.1 of the PPA
securing Developer’s obligations under the PPA, in the same amounts and forms and having the
same terms required for the Payment Bond and Performance Security required of Developer by
Section 17.2.1 of the PPA . . . .” [Filing No. 33-4 at 15.] Section 17.2.1 of the PPA is also titled
“Design and Construction Security Requirements,” [Filing No. 33-3 at 28], and provides as
follows:

16

[Filing No. 33-3 at 28.] There is no dispute that Section 17.2.1 of the PPA governed the required
Payment Bond for the Project. [Filing No. 53 at 11 (Co-Sureties’ reply brief confirming no dispute
on this point).]
The Co-Sureties argue that the language of the PPA’s security requirement provision only
covers “Construction Work,” [Filing No. 48 at 8-9], but that argument directly contradicts the
unambiguous title of the PPA’s security provision, which also references “Design.” [Filing No.
33-3 at 28.] Additionally, Section 17.2 links the amount of the required payment bond to the
“Total Project Capital Cost,” and the PPA’s definition of that term states that “[f]or purposes of
Section 17.2 of the [PPA], the term ‘Total Project Capital Cost’ includes costs associated with . . .
D&C Work . . . .” [Filing No. 50-4 at 72.] The PPA defines “D&C Work” as “Design Work and
Construction Work . . . .” [Filing No. 50-4 at 18.] Based on these definitions and incorporations,
the PPA’s security requirement was tied to the total amount of Design Work and Construction
Work. The Court finds that this language unambiguously confirms the parties’ intent that the
required payment bond cover both Design Work and Construction Work.
Alternatively, even if the Court accepts the Co-Sureties’ argument that the PPA’s security
requirement only covers the Project “with respect to Construction Work,” [Filing No. 33-3 at 28],
the PPA defines “Construction Work” as “all Work to build or construct, reconstruct, rehabilitate,
make, form, manufacture, furnish, install, integrate, supply, deliver or equip the Project . . . ,”
17

[Filing No. 50-4 at 16 (emphasis added)]. The PPA defines the term “Work” to include, among
other things, “design.” [Filing No. 50-4 at 75.] The “Abbreviations and Definitions” section of
the PPA states that “[u]nless otherwise specified, whenever the following abbreviations or terms
are used in the [PPA] and the Technical Provisions, they have the meanings set forth below.”
[Filing No. 33-3 at 30.] Because “Work” is a defined term referenced within the definition of
“Construction Work” and the definition of “Work” includes “design,” the Court concludes that the
term “Construction Work” as used in the security provision of the PPA also includes “design.”11
To support their argument, the Co-Sureties heavily rely on various portions of the Indiana
Code that they contend confirm that payment bonds for public-private agreements do not cover
design services. [Filing No. 48 at 25-33 (citing Indiana Code §§ 5-30-1-2, 5-30-1-7, 5-30-3-2, 530-8-4, 8-15.7-1-5, and 8-23-9, et seq.).] But the PPA specifies that Indiana Code Article 8-15.5
is the applicable statutory authority on which the PPA relies as a public-private agreement. [Filing
No. 33-3 at 15.] The Co-Sureties contend that Indiana Code Article 8-15.5 “does not require
design-build contractors to provide payment bond coverage for the part of a public-private
agreement that includes design.” [Filing No. 48 at 27.] The Co-Sureties’ argument suggests that
the lack of a statutory requirement for payment bond coverage for design services means that such

The Court rejects the Co-Sureties’ argument that this construction of the contract renders the
PPA’s separate definitions of various subcategories of work meaningless. [Filing No. 53 at 1213.] The term “Work” is a defined term in the PPA that is specifically referenced in the definition
of “Construction Work.” [Filing No. 50-4 at 16; Filing No. 50-4 at 75.] Unlike the term
“Construction Work,” the majority of the subcategories on which the Co-Sureties rely to make
their argument do not reference “Work” in their definitions. [See Filing No. 53 at 12-13 (relying
on “Aesthetics and Landscaping Work,” “Karst Feature Treatment Work,” “O&M Work,”
“Railroad Force Account Work,” and “Rehabilitation Work” to make their argument, but none of
those subcategories reference “Work” in their definitions).] Accordingly, the Court rejects the CoSureties’ argument that construing the term “Construction Work” to incorporate “design” for
purposes of the PPA’s security requirement renders other subcategories of work defined in the
PPA meaningless.
11

18

coverage would be prohibited under a public-private agreement. But that position ignores the wellestablished principle that “Indiana courts zealously defend the freedom to contract,” Indiana v.
Int’l Bus. Machines Corp., 51 N.E.3d 150, 160 (Ind. 2016), and that the Indiana Supreme Court
has confirmed that courts “must leave to the individual parties the right to make the terms of their
agreements as they deem fit and proper, and, as long as those terms are clear and unambiguous
and are not unlawful, [courts] can only enforce them as agreed upon[,]” New Welton Homes v.
Eckman, 830 N.E.2d 32, 35 (Ind. 2005). The Co-Sureties do not argue that any exception to this
general rule applies,12 and, in fact, their reply brief confirms that
[t]o the extent Indiana’s public policy is relevant, Indiana’s legislature has signaled
a policy of either not requiring and/or expressly excluding payment bond protection
for services that are unrelated to the actual construction of a public project. In
reality, while Indiana has adopted a policy of favoring/requiring payment bond
protection for labor/material/services provided in the actual construction of public
project[s], no such policy exists relative to design/engineering services on public
projects.
[Filing No. 53 at 3.] While Indiana may not have a statutorily confirmed policy favoring payment
bond protection for design services on public-private agreements, it cannot be said that Indiana

Under Indiana law, the Court may refuse to enforce a contract “that (1) contravenes a statute,
(2) clearly tends to injure the public in some way, or (3) is otherwise contrary to the declared public
policy of [Indiana].” WellPoint, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 29 N.E.3d
716, 724 (Ind. 2015).
12

19

has prohibited parties from contracting for such protection.13
The Co-Sureties argue that the Payment Bond itself excludes coverage for design services
because it covers “all just claims for labor performed,” and Aztec-TYPSA’s design services were
allegedly not “labor.” [Filing No. 48 at 32-38.] As an initial matter, the Co-Sureties’ quotation
ignores the language following the portion they cite, which states that the Payment Bond covers
“all just claims for labor performed and materials and supplies furnished upon or for the work
under the [DBC]” regardless of whether it was performed “under the original [DBC], any
subcontract, or any and all authorized modifications thereto . . . .” [Filing No. 33-5 at 1 (emphases
added).] It is beyond dispute that Aztec-TYPSA’s design services were work performed pursuant
to the ESA, which is a subcontract of the DBC. But even if the Payment Bond only covered
“labor,” as the Co-Sureties contend, Aztec-TYPSA’s services were “labor” within the scope of
that contract. The word “labor” is not defined in the Payment Bond, [Filing No. 33-5], or in the
DBC, which is the contract expressly incorporated into the Payment Bond, [see Filing No. 50-5 at
10-11 (portion of DBC where “labor” would be defined)]. When terms are not defined, Indiana
courts apply the “plain and ordinary meaning” of contract language “and enforce the contract
according to those terms.” Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012); see

Despite conceding that the PPA’s security provision governs the required payment bond for the
Project, [Filing No. 53 at 11], the Co-Sureties frequently cite a portion of the DBC’s security
provision providing that “[t]he requirements of Section 17.2.1 of the PPA shall apply to new,
reconstructed or rehabilitated improvements during the Term, and any other D&C Work [IsoluxCorsán] performs for which a bond is required under IC 8-23-9[,]” [Filing No. 48 at 29-32 (citing
Filing No. 33-4 at 15)]. The Co-Sureties emphasize that this portion of the Indiana Code does not
require any payment bond coverage for design services. [Filing No. 48 at 29-32.] While that may
be true, it also does not prevent parties from contracting to provide payment bond coverage for
design services, as they did here. Additionally, the Court notes that while the Co-Sureties cite
“Section 17.2.1.11” of the PPA to support their argument, [Filing No. 48 at 29], that provision was
not included in the portions of the PPA designated on summary judgment, [Filing No. 33-3; Filing
No. 47-1 at 18-21; Filing No. 50-4], and cannot be considered.
20
13

also Sans v. Monticello Ins. Co., 676 N.E.2d 1099, 1101 (Ind. Ct. App. 1997) (emphasizing that
“there is no rule of construction that every term in an insurance contract must be defined, and the
mere fact that a term is not defined does not render it ambiguous”). The Court agrees with AztecTYPSA that the common meaning of the word “labor” includes human activity that provides
services.

[Filing No. 50 at 28 (citing Merriam Webster Online Dictionary, available at

www.merriam-webster.com/dictionary/labor) (“human activity that provides the goods or services
in an economy”).] In the context of the Payment Bond, the plain and ordinary meaning of the
word “labor” encompasses design services, as evidenced by the fact that the Payment Bond
repeatedly recognizes that the contracts at issue relate to, among other things, the “design” of the
Project. [Filing No. 33-5 at 1.]
The Indiana Supreme Court has emphasized that the goal of contract interpretation is to
ascertain and give effect to the parties’ intent, as reasonably manifested by the language of the
agreement. Reuille, 888 N.E.2d at 771. For the reasons stated herein, the Court concludes that the
unambiguous language of the Payment Bond, the PPA, and the DBC confirm that the parties
contracted for the Payment Bond to cover design work on the Project furnished under the DBC or
any subcontract of the DBC.
B. Isolux-Corsán’s Possible Claims and Defenses against Aztec-TYPSA
The Co-Sureties argue that even if the Court concludes that the Payment Bond covers
design services, genuine issues of material fact preclude summary judgment in Aztec-TYPSA’s
favor based on defenses, offsets, set-offs, and counterclaims that Isolux-Corsán may have against

21

Aztec-TYPSA under the ESA or the Team Member Agreement (“TMA”).14 [Filing No. 48 at 3947.] The Co-Sureties emphasize that under Indiana law, they stand in the shoes of Isolux-Corsán
and that “the Co-Sureties cannot face any liability to the Plaintiffs unless [Isolux-Corsán] actually
owes something to [Aztec-TYPSA] after those defenses, offsets, set-offs, counterclaims, etc. are
considered.” [Filing No. 48 at 40.] The Co-Sureties designate evidence that Isolux-Corsán
believes that Aztec-TYPSA’s performance under the TMA and ESA was deficient, contained
numerous errors and omissions, and resulted in at least $10,000,000 of damages to Isolux-Corsán.
[Filing No. 47-1 at 1-16.] Consequently, the Co-Sureties ask the Court to find that genuine issues
of material fact on Isolux-Corsán’s possible recovery against Aztec-TYPSA pursuant to claims
Isolux-Corsán may have under the ESA and the TMA preclude summary judgment in this action.
[Filing No. 48 at 46-47.]
In response, Aztec-TYPSA disputes that the Co-Sureties can rely on any set-off rights that
Isolux-Corsán may have under the TMA because Indiana common law requires that the debt be
ascertained and the Co-Sureties make the “fatal admission . . . that the TMA-related claims are
nothing more than ‘unrelated debts [Aztec-TYPSA] may owe.’” [Filing No. 50 at 12-13 (citing
Filing No. 48 at 43) (emphasis added).] Aztec-TYPSA also points out that the TMA has an
Arizona forum selection clause and that Isolux-Corsán has never sued it—in Indiana, Arizona, or
elsewhere—to recover on any claims it may have under the TMA. [Filing No. 50 at 11-18.] With
regard to the Co-Sureties’ attempt to rely on the offset provision in the ESA, Aztec-TYPSA

14

Aztec-TYPSA and Isolux-Corsán entered into the TMA in August 2013, approximately one year
before they entered into the ESA. [Filing No. 47-2 at 6-9 (the TMA).] The Court need not address
the details of the TMA because, for the reasons stated below, the Co-Sureties cannot rely on the
set-off for any potential claims Isolux-Corsán may have against Aztec-TYPSA pursuant to the
TMA. Underscoring this point is Isolux-Corsán’s concession in its unsuccessful bid to intervene
in this action that this litigation is not the appropriate forum to assert any claims under the TMA.
[Filing No. 45 at 16; Filing No. 57 at 5.]
22

emphasizes that even if Isolux-Corsán has claims that could offset what Aztec-TYPSA is owed,
those claims have not been reduced to judgment because Isolux-Corsán never pursued arbitration.
[Filing No. 50 at 18-21.] Aztec-TYPSA concludes that any potential factual dispute regarding the
claims Isolux-Corsán may have against Aztec-TYPSA does not prevent summary judgment in
favor of Aztec-TYPSA because “the [Co-]Sureties are not able to assert those allegations, if they
were factually valid, as defenses in this lawsuit at all.” [Filing No. 50 at 4.]
In their reply brief, the Co-Sureties do not reassert their arguments regarding potential
defenses, offsets, set-offs, and counterclaims that Isolux-Corsán may have against Aztec-TYPSA
under the ESA or the TMA. [Filing No. 53.] They also do not respond to Aztec-TYPSA’s
arguments on this issue. [Filing No. 53.] The Court will not develop reply arguments for the CoSureties and, instead, construes their silence as a waiver of any challenge to factual contentions
regarding Isolux-Corsán’s failure to pursue relief against Aztec-TYPSA for alleged deficiencies
in its work. See Blackwell v. Cole Taylor Bank, 152 F.3d 666, 673 (7th Cir. 1998) (emphasizing
that silence in a reply brief does not constitute waiver of the legal issue but “does constitute a
waiver of the specific factual contentions made by the opposing party in a brief filed earlier”).
The Court agrees with the Co-Sureties that they cannot be liable in this Payment Bond
action to the extent that Isolux-Corsán itself is not liable to Aztec-TYPSA. That is a wellestablished principle of surety law in Indiana.

See BMD Contractors, 679 F.3d at 654

(emphasizing that Indiana surety law is “quite clear [that] sureties are generally liable only where
the principal itself is liable”). The problem with the Co-Sureties’ attempt to invoke the ESA’s
offset provision as a defense in this action is that the provision on which the Co-Sureties rely for
Isolux-Corsán’s offset rights clearly states that Isolux-Corsán “may deduct and offset any damages
owing to it under the DBC Documents or this [ESA] . . . .” [Filing No. 33-6 at 75 (ESA ¶ 19.2.5.5)
23

(emphasis added); Filing No. 48 at 44 (Co-Sureties’ brief citing that section for Isolux-Corsán’s
offset rights).] The Co-Sureties’ argument erroneously assumes that the word “owing” in that
provision includes damages that Aztec-TYPSA could someday owe Isolux-Corsán if IsoluxCorsán pursued arbitration. But the plain and ordinary meaning of the word “owing” is “due to
be

paid.”

Merriam-Webster

Online

Dictionary,

available

at

www.merriam-

webster.com/dictionary/owing. The Co-Sureties designate no evidence that Isolux-Corsán is due
to be paid anything from Aztec-TYPSA at this time, and they cannot designate such evidence
because Isolux-Corsán has not pursued arbitration against Aztec-TYPSA on the claims it timely
disputed, such that Isolux-Corsán has “damages owing to it” from Aztec-TYPSA that can trigger
the ESA’s offset provision.15 [Filing No. 33-6 at 75.] Accordingly, the Co-Sureties cannot rely
on the offset provision of the ESA to reduce the amount of Aztec-TYPSA’s claim against the
Payment Bond for Isolux-Corsán’s non-payment at issue in this litigation.
Indiana common law set-off rights for damages Isolux-Corsán may be able to recover for
Aztec-TYPSA’s alleged breach of the TMA also fails. Even setting aside that the TMA contains
an Arizona choice-of-law provision and that Isolux-Corsán previously conceded that this litigation
is not the appropriate forum in which to assert claims related to the TMA, [Filing No. 45 at 16;
Filing No. 57 at 5], applicable law precludes the Co-Sureties’ set-off request. Indiana recognizes
“the right that exists between two persons, each of whom under an independent contract, express
or implied, owes an ascertained amount to the other, to set off their mutual debt by way of

15

Isolux-Corsán sent Aztec-TYPSA a letter on May 20, 2016 invoking the dispute resolution
proceedings pursuant to the ESA and stating that it would pursue arbitration if an agreement was
not reached. [Filing No. 47-1 at 12-14 (letter from Isolux-Corsán to Aztec-TYPSA titled “Notice
of Invocation of Dispute Resolution Procedures” and concluding that “[i]f Isolux and AztecTYPSA cannot reach an agreement by the conclusion of that ten business day period, Isolux will
commence arbitration proceedings”).] Isolux-Corsán never initiated arbitration against AztecTYPSA as required by the ESA’s dispute resolution provision. [Filing No. 50-1 at 2 (affidavit).]
24

deduction.” Benjamin v. Benjamin, 849 N.E.2d 719, 725 (Ind. Ct. App. 2006) (emphasis added)
(citation omitted); see also Am. Mgmt., Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 432 (Ind. Ct.
App. 1996) (“a set-off exists between two persons, each of whom under an independent contract,
express or implied, owes an ascertained amount to the other . . . . In other words, the set-off amount
must be subtracted from the total amount of the larger debt.”). But in the case at bar, the CoSureties concede that any amount Aztec-TYPSA may owe Isolux-Corsán for an alleged breach of
the TMA has not been ascertained. [See Filing No. 48 at 43 (“Isolux also possesses a common
law right to set-off any unrelated debts [Aztec-TYPSA] may owe—such as those arising from the
Plaintiffs’ breach of the TMA”) (emphasis added).] This is because Isolux-Corsán has never
initiated litigation against Aztec-TYPSA—in Indiana, Arizona, or elsewhere—for any alleged
breaches of the TMA. [Filing No. 50-1 at 3.] Accordingly, the Court concludes that the CoSureties cannot rely on a hypothetical, unascertained debt that Aztec-TYPSA may owe IsoluxCorsán because of its alleged breach of the TMA to invoke a common law right to set-off at this
time.
The Co-Sureties’ attempt to invoke the principles of offset and set-off as defenses in this
action ring hollow. Other than generally referencing the future possibility of those claims to try to
avoid paying Aztec-TYPSA’s Payment Bond claim, neither Isolux-Corsán nor the Co-Sureties
have done anything to pursue legal action for Aztec-TYPSA’s alleged breaches of the TMA or the
ESA. [Filing No. 50-1 at 2-3.] In fact, the Co-Sureties confirm in a proposed amended answer
that “[t]he Co-Sureties do not independently possess and are not independently asserting any
affirmative counterclaims for damages against the Plaintiffs, and the Co-Sureties do not contend
that they are entitled to recover any sums/damages from the Plaintiffs at this time.” [Filing No.
59-1 at 17]. The Court would have expected the Co-Sureties or Isolux-Corsán (or both) to take
25

affirmative steps to pursue claims against Aztec-TYPSA for its alleged breaches of the ESA and
the TMA if their belief in the availability of set-off or offset were sincere. The Co-Sureties’
defensive attempt to rely on the potential existence of such claims without actually pursuing them,
however, cannot defeat Aztec-TYPSA’s request for summary judgment under the Payment Bond
for unpaid, undisputed amounts.16
C. Effect of Court’s Rulings
For the reasons set forth in the previous sections, the Court concludes that the parties to the
PPA, the DBC, and the Payment Bond contracted for bond coverage that included design services
on the Project that were furnished under the DBC or any subcontract. It is undisputed that AztecTYPSA performed design services on the Project pursuant to the ESA, which was a subcontract
of the DBC. Thus, Aztec-TYPSA’s design services were covered by the Payment Bond if IsoluxCorsán failed to “pay, as they become due, all just claims . . . .” [Filing No. 33-5 at 1.] It is
undisputed that Isolux-Corsán failed to pay certain claims Aztec-TYPSA made on Applications
for Payment after they became due, and that Isolux-Corsán also did not dispute those claims
pursuant to the procedure set forth in the ESA. [See Filing No. 30 at 8-9; Filing No. 33-1 at 3-7.]
Accordingly, Aztec-TYPSA is entitled to summary judgment as a matter of law on its claim against
the Co-Sureties for payment under the Payment Bond. This resolves all pending claims in this
litigation.
Typically when the Court enters summary judgment in favor of a plaintiff, it will request
briefing or hold a hearing to determine the amount of damages to award. In this case, however,
the amount of damages is not in dispute. Aztec-TYPSA designated evidence to support its request

Accordingly, Aztec-TYPSA’s Motion to Strike Allegations and Affirmative Defenses in the CoSureties’ Answer, [Filing No. 49], and the Co-Sureties’ Motion for Leave to File an Amended
Answer, [Filing No. 59], are both denied.
26
16

that the Court enter summary judgment in its favor and award it $4,678,451.61 plus prejudgment
interest for the amount of claims that Isolux-Corsán did not pay and did not dispute pursuant to
the procedure set forth in the ESA. [Filing No. 32 at 2 (summary judgment request for that
amount); Filing No. 33-1 at 6 (affidavit stating that “the undisputed amount owed now totals
$4,678,451.61”) (citing Filing No. 33-10 (“Summary of Undisputed Corsan Overdue Invoices”)).]
Although the Co-Sureties criticize Aztec-TYPSA for not submitting the actual invoices upon
which that amount is based, [Filing No. 48 at 23], the Co-Sureties do not dispute the amount or
designate any contrary evidence. Summary judgment is the moment in a lawsuit when a party
must show what evidence it has that would convince a trier of fact to accept its version of events.
Johnson, 325 F.3d at 901. Because the Co-Sureties did not offer contradictory evidence in
response to Aztec-TYPSA’s damages evidence, the amount that Isolux-Corsán failed to pay AztecTYPSA for its design services and did not dispute pursuant to the procedure set forth in the ESA
is not in question. See Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 795 (7th Cir. 2014)
(“Northern introduced no evidence whatsoever to contradict Hanover’s [monetary] figure. There
is no issue of fact, here, let alone a genuine issue.”). Accordingly, the Court concludes that AztecTYPSA is entitled to summary judgment in its favor and an award of $4,678,451.61 plus
prejudgment interest. [See Filing No. 1 at 10 (requesting prejudgment interest with any damages
award).] Final judgment shall enter accordingly.
IV.
CONCLUSION
Aztec-TYPSA’s Motion for Leave to File Amended Exhibits is GRANTED IN PART
such that Filing No. 50-3 is STRICKEN and DENIED IN PART such that the belatedly
submitted exhibit filed with that motion, [Filing No. 54-3], will not be considered. [Filing No.
54.] For the reasons stated herein, the Court GRANTS Aztec-TYPSA’s Motion for Summary
27

Judgment, [Filing No. 32], and DENIES the Co-Sureties’ Motion for Summary Judgment, [Filing
No. 47]. The Court DENIES Aztec-TYPSA’s Motion to Strike Allegations and Affirmative
Defenses in the Co-Sureties’ Answer, [Filing No. 49], as well as the Co-Sureties’ Motion for Leave
to File an Amended Answer, [Filing No. 59]. Final judgment in favor of Aztec-TYPSA in the
amount of $4,678,451.61 plus prejudgment interest shall enter accordingly.

Date: April 18, 2017

Electronic Distribution via CM/ECF:
J. Michael Cavosie
EASTER & CAVOSIE
[e-mail]
Jarrod W. Stone
MANIER & HEROD PC
[e-mail]
John M. Gillum
MANIER & HEROD PC
[e-mail]
Charles E. Harper
QUARLES & BRADY LLP
[e-mail]
Hunter Gerard DeKoninck
QUARLES & BRADY LLP (Indianapolis)
[e-mail]
Michael A. Rogers
QUARLES & BRADY LLP (Indianapolis)
[e-mail]

28