City of Murray, Kentucky v. Robertson, Incorporated Bridge & Grading Division et al

Filing 105

MEMORANDUM OPINION AND ORDER Signed by Senior Judge Thomas B. Russell on 7/25/2018: FIC's motion 78 for summary judgment is DENIED. Murray's motion 84 for partial summary judgment is GRANTED in part and DENIED in part. The Court finds that Murray complied with §§ 3.1 and 3.2 of the Performance Bond, and FIC is HEREBY PRECLUDED from asserting any notice defenses arising from these sections. However, the Court will reserve judgment on the remainder of the issues presented in Murray's motion. cc: Counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:17-cv-00008-TBR
CITY OF MURRAY, KENTUCKY,

PLAINTIFF

v.
ROBERTSON INC. BRIDGE
AND GRADING DIVISION, et al.,

DEFENDANTS/THIRD-PARTY PLAINTIFFS

v.
DALE BEARDEN
CONSTRUCTION CO., INC.,

THIRD-PARTY DEFENDANT
Memorandum Opinion & Order

This matter comes before the Court upon two motions. First, Defendant Federal
Insurance Company, (“FIC”), has moved for summary judgment against Plaintiff City of
Murray, Kentucky, (“Murray”). [DN 78.] Second, Murray has moved for partial summary
judgment against FIC. [DN 84.] The merits of these matters are discussed below.
A. Factual Background
This case arises out of events which transpired during a construction project called the
“East Fork Clarks River Pump Station Improvements and Force Main,” (“the Project”). [DN 1-1,
at 1.] On January 12, 2015, Murray and Defendant Robertson Inc. Bridge and Grading Division,
(“Robertson”), entered into a contract, (the “Contract”), whereby Robertson was to complete the
Project on behalf of Murray, which owns the property. [DN 1, at 3.] In relation to the Contract, a
construction performance bond, (“Performance Bond”), and a payment bond, (“Payment Bond”),
were executed. [Id.] Pursuant to the terms of the Performance Bond, FIC and Robertson bound
themselves, jointly and severally, “for the performance of the Construction Contract” and, under

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the Payment Bond, FIC and Robertson bound themselves “to pay for labor, materials, and
equipment…use[d] in the performance of the Contract….” [DN 1-2.]
On January 7, 2016, the Project Engineer, GRW Engineers, Inc., (“GRW”), notified
Robertson “in writing of certain defects in [Robertson’s] work in the construction of a concrete
wet well that is part of the Project.” [DN 84-2, at 4 (Parson’s Affidavit); see also DN 84-5 (GRW
Letter).] According to GRW, Robertson’s work on the concrete wet well “was defective because
it did not comply with the Project plans and specifications,” and GRW “requested [that
Robertson] remove and replace the defective work, unless an acceptable, engineered alternative
was proposed.” [Id. See also DN 84-5.]
Thereafter, Murray, through counsel, wrote to Robertson and FIC on December 1, 2016
and instructed them that, although GRW had made Robertson aware of the alleged defects eleven
months previous, no corrective action had been commenced by Robertson or anyone else. [DN
84-6.] In that same letter, Murray informed Robertson that, “[a]s a result of Robertson’s work on
the Project, the heat in an adjacent existing building has ceased working. That building houses
computers that could be damaged by exposure to cold temperatures.” [Id. at 2.] Murray indicated
that Robertson’s counsel had been notified of this additional issue on November 21, 2016, but
that Murray had “received no indication that Robertson ha[d] investigated this problem.” [Id.]
Murray went on to declare that it was “considering declaring a contractor default
and…request[ed] a conference with Robertson and [FIC] within 15 days to discuss the remedial
plan of action.” [Id.] Murray concluded by clarifying that its letter constituted a formal
“demand[] that Robertson fulfill its obligations under its contract and that [FIC] fulfill its
obligations under the performance bond that it issued in connection with th[e] project.” [Id.]

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Next, on January 6, 2017, Murray, through counsel, wrote again to Robertson and FIC
and informed them it had received no response to its December 1, 2016 letter. [DN 84-8, at 1.]
Murray then purported to “exercis[e] its right to terminate the services of [Robertson] for the
Project,” and indicated that it would “exercise all of its rights under its contract with [Robertson]
to correct the defective work and finish the Project.” [Id.] Next, Murray cited to portions of the
Contract, informing Robertson and FIC that it considered Robertson “responsible for all claims,
costs, losses and damages (including but not limited to, all fees and charges of engineers,
architects, attorneys, and other professionals and all court, arbitration or other dispute resolution
costs) sustained by owner arising out of, or relating to, [Murray’s] exercise of its rights and
remedies, including the performance of the corrective work and completion of the Project.” [Id.]
Murray filed suit in this Court five days later, on January 11, 2017. [DN 1.]
B. Summary Judgment Standard
Federal Rule of Civil Procedure 56 instructs that “[t][he court shall grant 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. The court should state on the record the
reasons for granting or denying the motion.” Fed. R. Civ. P. 56(a). “In deciding a motion for
summary judgment, the court must view the evidence and draw all reasonable inferences in favor
of the nonmoving party.” Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir.
2001) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Further, “[t]he judge is not to ‘weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986)).

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“The moving party bears the initial burden of demonstrating that no genuine issue of
material fact exists.” Am. Guarantee and Liability Ins. Co. v. Norfolk S. Rwy. Co., 278 F. Supp.
3d 1025, 1037 (E.D. Tenn. 2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The movant “may discharge this burden either by producing evidence that demonstrates the
absence of a genuine issue of material fact or simply ‘by showing—that is, pointing out to the
district court—that there is an absence of evidence to support the nonmoving party’s case.’” Id.
(quoting Celotex, 477 U.S. at 325). If the movant carries his or her burden here, “[t]he nonmoving party…may not rest upon its mere allegations or denials of the adverse party’s pleadings,
but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan
v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 47 U.S. at 586). Finally,
“[t]he mere existence of a scintilla of evidence in support of the non-moving party’s position will
be insufficient to defeat a motion for summary judgment; there must be evidence on which the
jury could reasonably find for the non-moving party.” Id. (internal citations and brackets
omitted). This means that “[i]f the [non-moving] party fails to make a sufficient showing on
an[y] essential element of its case with respect to which it has the burden of proof, the moving
party is entitled to summary judgment.” Am. Guarantee and Liability Ins. Co., 278 F. Supp. 3d at
1037 (citing Celotex, 477 U.S. 323).
C. FIC’s Motion for Summary Judgment
The first motion is FIC’s motion for summary judgment. [DN 78.] FIC argues that
Murray filed to provide it with adequate notice, as required under the terms of the Performance
Bond, and that this failure precludes any recovery by Murray as against FIC. [DN 78-1, at 7.]
1. Terms of the Performance Bond

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In support of its motion for summary judgment, FIC points to §§ 3-5 of the Performance
Bond, which FIC and Robertson both executed in connection with Robertson’s work on the
Project for Murray. [DN 1-2.] Section 3 explains the steps Murray must take before FIC’s
obligation to perform is invoked due to a contractor default. It provides as follows:
3. If there is no Owner1 Default, the Surety’s2 obligation under this Bond shall
arise after:
3.1 The Owner has notified the Contractor3 and the Surety at its address described
in Paragraph 10 below, that the Owner is considering declaring a Contractor
Default and has requested and attempted to arrange a conference with the
Contractor and the Surety to be held not later than fifteen days after receipt of
such notice to discuss methods of performing the Construction Contract. If the
Owner, the Contractor and the Surety agree, the Contractor shall be allowed a
reasonable time to perform the Construction Contract, but such an agreement shall
not waive the owner’s right, if any, subsequently to declare a (Contractor
Default); and
3.2 The Owner has declared a Contractor Default and formally terminated the
Contractor’s right to complete the contract. Such Contractor Default shall not be
declared earlier than twenty days after the Contractor and the Surety have
received notice as provided in Subparagraph 3.1; and
3.3 The Owner has agreed to pay the balance of the Contract Price to the Surety in
accordance with the terms of the Construction Contract or to a contractor selected
to perform the Construction Contract in accordance with the terms of the contract
with the Owner.
[Id. at 2.]
Where the terms of § 3 are complied with, as Murray claims it has done here, § 4 is
triggered. Section 4 provides that, upon such satisfaction of § 3 by Murray, “the Surety shall
promptly and at the Surety’s expense take one of the following actions:”
4.1 Arrange for the Contractor, with consent of the Owner, to perform and
complete the Construction Contract; or

1

In the Performance Bond, Murray is referred to as “Owner.”
In the Performance Bond, FIC is referred to as “Surety.”
3
In the Performance Bond, Robertson is referred to as “Contractor.”
2

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4.2 Undertake to perform and complete the Construction Contract itself, through
its agents or through independent contractors; or
4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to
the Owner for a contract for performance and completion of the Construction
Contract, arrange for a contract to be prepared for execution by the Owner and the
contract selected with the Owner’s concurrence, to be secured with performance
and payment bonds executed by a qualified surety equivalent to the bonds issued
on the Construction Contact, and pay to the Owner the amount of damages as
described in Paragraph 6 in excess of the Balance of the Contract Price incurred
by the Owner resulting from the Contractor’s default; or
4.4 Waive its right to perform and complete, arrange for completion, or obtain a
new contractor and with reasonable promptness under the circumstances:
(1) After investigation, determine the amount for which it may be liable to
the Owner and, as soon as practicable, after the amount is determined, tender
payment therefor to the Owner; or
(2) Deny liability in whole or in part and notify the Owner citing reasons
therefor.
[DN 1-2, at 2.] Finally, § 5 provides as follows:
If the Surety does not proceed as provided in Paragraph 4 with reasonable
promptness, the Surety shall be deemed to be in default on this Bond fifteen days
after receipt of an additional written notice from the Owner to the Surety
demanding that the Surety perform its obligations under this Bond, and the Owner
shall be entitled to enforce any remedy available to the Owner, if the Surety
proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment
tendered or the Surety has denied liability, in whole or in part without further
notice, the Owner shall be entitled to enforce any remedy available to the Owner.
[Id.] FIC contends that Murray failed under § 3.1 to attempt to arrange a conference with FIC
and Robertson, and that Murray further failed to comply with the time constraints for declaring a
contractor default against Robertson under § 3.2. [DN 78-1, at 4.] Thus, according to FIC, its § 4
obligations were never triggered, and this Court should dismiss all claims against it.
2. Condensed Timeline
Because the Performance Bond and, relatedly, FIC’s motion, relies heavily on the dates
on which certain events occurred, the Court finds it helpful to lay out in concise and
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chronological fashion the pertinent dates which have been established through documentary
evidence contained in the Record:
January 12, 2015: Murray and Robertson enter into the Contract to complete the Project.
[DN 1-1, at 1.] Robertson and FIC execute the Performance Bond and Payment Bond that same
day. [DN 1-2.]
January 7, 2016: The Project Engineer, GRW, sends a letter to Robertson indicating
what GRW views as defects in Robertson’s work on the Project. [DN 84-5.]
December 1, 2016: Murray, through counsel, sends via certified mail a letter to
Robertson and FIC, (Murray’s “December 2016 Letter”), indicating that it is considering
declaring a contractor default, and requests a conference with Robertson and FIC within fifteen
days to discuss the issue. [DN 84-6.]
December 5, 2016: Murray’s December 2016 Letter is signed for at the offices of
Robertson’s counsel. [DN 84-6, at 43; see also DN 84-2, at 4-5.]
December 6, 2016: Murray’s December 2016 Letter is signed for at the listed address for
FIC. [DN 84-6, at 42; see also DN 84-2, at 4-5.]
January 3, 2017: Derek Popeil, Assistant Vice President and Surety Claims Manager of
Chubb Surety Claims,4 sends an email to Robertson stating the following: “Federal has been
contacted about a potential bond claim by the City as a result of the an [sic] alleged failure to
correct certain defective work and failure to provide a remedial plan. Kindly advise how
Robertson plans to proceed.” [DN 84-7.]
January 6, 2017: Murray, again through counsel, sends another letter via certified mail
to Robertson and FIC, (Murray’s “January 2017 Letter”), wherein it purports to terminate
Robertson’s services. [DN 84-8.]
4

Chubb is a parent organization of FIC.

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January 11, 2017: Murray files suit in this Court on January 11, 2017. [DN 1.]
With this chronology in mind, the Court will now turn its attention to a substantive
analysis of FIC’s motion for summary judgment.
3. Discussion
The main thrust of FIC’s argument is that its claims department did not receive Murray’s
December 2016 Letter until January 19, 2017, eight days after Murray filed suit. [DN 78-1, at 4.]
Thus, FIC argues, it was not provided with notice of Murray’s consideration of potentially
declaring a contractor default, or of Murray’s desire to arrange a conference to discuss remedial
plans, as required by § 3.1 of the Performance Bond. [DN 1-2, at 2.] That failure would mean
that FIC’s obligations under § 4 would never have been triggered. [See id.]
FIC’s motion homes in on the term “notice,” in reference to § 3.1’s requirement that
Murray “notif[y] the Contractor and the Surety at its address…that [Murray] is considering
declaring a Contractor Default and has requested and attempted to arrange a conference with
[Robertson] and [FIC]….” [Id.] Importantly though, while FIC refers exclusively to whether
notice was received by its claims department, there is no such requirement contained in the
Performance Bond. Indeed, by the terms of the Performance Bond, notification was required to
be sent to the address provided on the signature page, consistent with § 10 contained therein.
[Id.] With respect to FIC, that address is “Federal Insurance Company, 15 Mountain View Road,
P.O. Box 1615, Warren, NJ 07061-1615.” [Id. at 1.] There is no mention of the claims
department or any requirement imposed upon Murray to forward any such notice specifically to
FIC’s claims department. [See generally id.] Thus, the Court must reject any attempt by FIC to
create a distinction between notice to it generally and notice to its claims department. The
Performance Bond creates no distinction and FIC has provided no additional evidence which

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would tend to show that this was the intent of the parties when they executed it. See Cumberland
Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007) (“[T]he
interpretation and legal effect of a contract is a matter of law.”).
However, even setting aside FIC’s attempt to frame Murray’s notice obligation narrowly
as one involving FIC’s claims department, FIC’s motion fails for a lack of evidence that notice
was not received until January 19, 2017. [See DN 78-1.] In other words, even if this Court were
inclined to construe the Performance Bond as dictating that notice be provided by Murray to
FIC’s claims department, which it is not, FIC’s motion would still fail. Federal Rule of Civil
Procedure 56(c) provides that:
[a] party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations…, admissions, interrogatory answers, or other materials;
or (B) showing that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1)(A)-(B). Here, FIC failed to satisfy either subsection (A) or subsection
(B). Apart from citing to the Performance Bond generally for the provisions it contains, FIC
largely fails to cite to any evidence in the Record which would tend to support its contention that
notice was not received until January 19, 2017, either by its designated recipient or its claims
department. Indeed, FIC’s contentions that it did not receive notice until January 19, 2017
consist largely of unsworn arguments in the body of its motion. See Harris v. J.B. Robinson
Jewelers, 627 F.3d 235, 239 n.1 (6th Cir. 2010) (“[A] court may not consider unsworn
statements when ruling on a motion for summary judgment.”) (citation omitted). FIC failed to
attach any evidence to its instant motion that would support its claim, only providing the
aforementioned correspondence between Murray, Robertson, and FIC, and a contextless

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photocopy of an envelope that shows Murray’s counsel as the letter’s sender and FIC as its
recipient. [DN 78-5.] The envelope is date-stamped January 6, 2017 with the following
corresponding stamp: “WTO Surety by TBH.” [Id.] The postage stamp is dated December 1,
2016. [Id.] There is no clarification of what exactly this envelope purports to show, nor is there a
corresponding affidavit or other verification. All FIC has provided is the following unsworn
statement: “[o]n January 19, 2017, the claims department of [FIC] received the December 1,
2016 letter, as well as, [sic] the January 6, 2017 letter. The envelope containing the December 1,
2016 letter is attached hereto as Exhibit ‘D’.” [DN 78-1, at 2.] But the envelope date stamp is
January 6 and not January 19, and so even setting aside the contextless nature of FIC’s
presentation of this unauthenticated envelope, it still does not provide support for FIC’s ultimate
contention.
Finally, with respect to FIC’s “notice” argument, in its response/counter-motion, Murray
includes as an exhibit the aforementioned email to Robertson from Chubb Assistant Vice
President Derek Popeil, (“Popeil”), dated January 3, 2017 at 1:04 p.m., wherein Popeil makes
specific references the potential bond claim by Murray due to alleged defects in Robertson’s
work. [DN 84-7.] This evidence tends to show that Chubb, the parent organization of FIC, was
on notice of Murray’s potential bond claim by, at the latest, January 3, 2017, thereby casting
further doubt on FIC’s January 19, 2017 argument.
Because the Court has rejected FIC’s “notice” argument, the Court must also reject FIC’s
secondary argument that Murray failed to properly attempt to arrange a conference as required
under § 3.1 of the Performance Bond. [See DN 78-1, at 4.] FIC argues that Murray’s December
2016 Letter was “not timely received” by FIC because FIC’s claims department did not receive it
until January 19, 2017. [Id. at n.1.] Of course, the Court has already dispensed with FIC’s

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argument that notice was required to have been given to its claims department, and so any
corresponding argument regarding Murray’s attempts to schedule a conference must also fail.
However, FIC also argues that Murray “did not attempt to arrange a conference with Robertson
thereby failing to abide by Section 3.1 of the [Performance] Bond because…it merely mentioned
a conference which is never arranged….” [Id. at 5.] This argument, too, fails to warrant the grant
of summary judgment in FIC’s favor because Murray’s December 2016 Letter specifically states
Murray’s “request[] [for] a conference with Robertson and [FIC] within 15 days to discuss the
remedial plan of action.” [DN 84-6, at 2.] This appears to be consistent with the requirement of §
3.1 of the Performance Bond, which indicates that the “Owner,” Murray, must request and
attempt to arrange a conference with the “Contractor,” Robertson, and the “Surety,” FIC, “to
discuss methods of performing the Construction Contract.” [DN 1-2, at 2.] There is no
requirement that a conference must be held, and the Court must therefore reject FIC’s argument.
D. Murray’s Motion for Partial Summary Judgment
Having disposed of FIC’s motion for summary judgment, the next issue is that of
Murray’s response/counter-motion, wherein it asks for summary judgment in its favor on the
issue of any notice-based defenses FIC may seek to raise in the future. [DN 84.] Murray’s
motion largely tracks FIC’s motion for summary judgment, discussed above, and argues that the
evidence shows that notice was provided to Robertson and FIC in accordance with the terms of
the Performance Bond, thereby precluding any further arguments by FIC that notice was
somehow inadequate. Neither FIC nor Robertson responded to this motion. Pursuant to Local
Rule 7.1(c), a party’s “[f]ailure to timely respond to a motion may be grounds for granting the
motion.” With this in mind, though, the Court will address the motion on its merits.

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In its motion, Murray points specifically to § 3 of the Performance Bond, laid out above,
contends that it complied with §§ 3.1, 3.2, and 3.3, as it was required to do, and asks the Court,
in addition to denying FIC’s motion for summary judgment, to issue an additional order
precluding FIC from hereafter contending that Murray failed to provide it with adequate notice.
The Court agrees with Murray on this issue and will grant the motion in part.
The requirements of § 3.1 are laid out above in this Memorandum Opinion, but they bear
repeating here. Sequentially, Murray was required to first notify Robertson and FIC at the
addresses ascribed to them on the first page of the Performance Bond that it was “considering
declaring a Contractor Default” and, further, to “request[] and attempt[] to arrange a conference
with” Robertson and FIC “to be held not later than fifteen days after receipt of such notice to
discuss methods of performing the Construction Contract.” [DN 1-2, at 2.] The Court finds that
Murray complied with § 3.1.
First, Murray utilized the correct address for FIC, as the address listed in Murray’s
December 2016 Letter matches the one on the first page of the Performance Bond, in accordance
with § 10 of the bond, and Murray further sent the letter to Robertson’s legal counsel. Second,
the language utilized by Murray’s counsel in the December 2016 Letter tracks closely the
language of § 3.1 of the Performance Bond: “[f]or the foregoing reasons, the City of Murray is
considering declaring a contractor default and is requesting a conference with Robertson and
[FIC] within 15 days to discuss the remedial plan of action.” [DN 84-6, at 2.] The only remaining
issue with respect to § 3.1, then, is that of actual notice to Robertson and FIC, i.e., whether the
December 2016 Letter was actually received at the respective addresses. In its instant motion,
Murray provides ample proof of receipt of the letter. Murray has included with its motion the
certified mail receipt regarding the December 2016 Letter’s delivery at FIC’s listed address. [DN

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84-6, at 42.] The letter was signed for by FIC on December 6, 2016. [Id.] Also, another copy of
the letter was signed for at the address of Robertson’s legal counsel on December 5, 2016. [Id. at
43.] Thus, Robertson had actual notice under § 3.1 no later than December 5, 2016 and FIC had
the same no later than December 6, 2016, meaning Murray discharged its obligations under § 3
of the Performance Bond on December 6. [See id. at 42-43.] The Court’s decision here is
bolstered not only by the certified mail receipts and the corresponding affidavit provided by
Murray, but also by FIC’s failure to refute any of this, not only in its original motion for
summary judgment, but also by its failure to respond to Murray’s instant motion at all.
Next, the Court finds that Murray complied with § 3.2 of the Performance Bond, which
required Murray to formally declare a contractor default as against Robertson and formally
terminate Robertson’s right to complete the contract. [DN 1-2, at 2.] Murray was precluded by
the terms of the Performance Bond from declaring the default until at least twenty days after both
Robertson and FIC received notice in accordance with § 3.1. [Id.] As noted above, Robertson
received notice on December 5, 2016 and FIC received notice on December 6, 2016. [DN 84-6,
at 42-43.] Attached to Murray’s motion is the formal termination letter counsel for Murray sent
to Robertson and FIC at the same aforementioned addresses. That letter, dated January 6, 2017,
informed Robertson and FIC of Murray’s formal termination of Robertson’s services. [DN 84, at
1.] Importantly, the January 6, 2017 date shows that the termination came thirty-two days after
Robertson received notice under § 3.1 and thirty-one days after FIC received the same. This
means that the letter complied with § 3.2 of the Performance Bond because it fell outside the
twenty-day buffer afforded Robertson and FIC. [See DN 1-2, at 2.] Certified mail receipts for
this letter have also been supplied by Murray with respect to both Robertson and FIC, [DN 84-8,
at 3-4], as well as a corresponding affidavit. [DN 84-2, at 7.] Accordingly, the Court finds that

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Murray has complied with §§ 3.1 and 3.2, and further finds that FIC is precluded from asserting
any “notice” defenses under either of these sections of the Performance Bond.
Finally, Murray has laid out further arguments in its instant motion that it also complied
with § 3.3 of the Performance Bond, thereby triggering FIC’s obligations under § 4, and that
Murray complied with all of its obligations under § 5 as well. However, the Court finds that the
issues it would confront in analyzing §§ 3.3, 4, and 5 go beyond the question of “notice” and
whether and when FIC received Murray’s December 2016 Letter and January 2017 Letter, and
so the Court will reserve judgment on these further issues at this time.
E. Conclusion
For the reasons stated in this Memorandum Opinion, and the Court being otherwise
sufficiently advised, IT IS HEREBY ORDERED as follows:
1. FIC’s motion for summary judgment, [DN 78], is DENIED.
2. Murray’s motion for partial summary judgment, [DN 84], is GRANTED in part and
DENIED in part. The Court finds that Murray complied with §§ 3.1 and 3.2 of the Performance
Bond, and FIC is HEREBY PRECLUDED from asserting any “notice” defenses arising from
these sections. However, the Court will reserve judgment on the remainder of the issues
presented in Murray’s motion.
IT IS SO ORDERED.

July 25, 2018

cc:

Counsel of Record

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