The Hanover Insurance Co. v. Global Construction, Inc., et al
Filing
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ORDER granting in part and denying in part 44 Motion for Summary Judgment - Trial on the remaining issues described more particularly in the attached order is set for August 19, 2013, at Raleigh, pursuant to notice which issued June 19, 2013, als o setting the case for final pretrial conference at New Bern August 5, 2013. The parties shall make reference in their final pretrial preparations also to the court's case management order entered at docket number 39. Where the court earlier all owed counsel for defendants to withdraw, and set a deadline for new counsel to file notice(s) of appearance, on or before July 9, 2013, with reminder in its order that the corporate defendant cannot by law proceed pro se, the court takes note also of today's deadline for such action to be taken. Signed by District Judge Louise Wood Flanagan on 07/09/2013. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:12-CV-50-FL
THE HANOVER INSURANCE CO.,
Plaintiff,
v.
RICKY A. LANIER; KATRINA P.
LANIER; CARLTON S. LANIER;
ANGELA G. LANIER; and, GLOBAL
CONSTRUCTION, INC.,
Defendants.
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ORDER
This matter is before the court on plaintiffs motion for summary judgment (DE 44 ), to which
defendants responded and plaintiff replied. For the following reasons, plaintiffs motion for
summary judgment is granted in part and denied in part.
BACKGROUND
Plaintiff filed complaint on March 29, 2012, alleging claims against defendants for breach
of contract in relation to the indemnity agreement between the parties, and for recovery of attorney's
fees and expenses oflitigation for enforcement of the indemnity agreement pursuant to N.C. Gen.
Stat. § 6-21.2. Defendants answered complaint on July 16, 2012. On February 28, 2013, plaintiff
moved for summary judgment as to all claims, 1 seeking a sum certain of $206,748.56, which it
alleges is owed under the indemnity agreement. In their response, defendants asserted that North
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The court notes that count two of the complaint has been constructively abandoned where plaintiff recognizes
its losses are now liquidated, obviating the utility of collateral. Pl.'s Mem. 9 (recognizing that count two is now "moot").
Therefore, summary judgment is sought only as to counts one and three of the complaint.
Carolina's three-year statute oflimitations for contract disputes bars recovery. Plaintiff replied that
since the contract was signed under seal, the applicable statute of limitations is ten years, and that
even ifthe statute oflimitations is three years, as defendants alleged, it would not provide a complete
bar to all recovery sought.
STATEMENT OF UNDISPUTED FACTS
Defendant Global Construction, Inc. ("Global") was a North Carolina Corporation at all
relevant times in the complaint, and until dissolution on April4, 2012. Defendant Ricky A. Lanier
was its president and registered agent. Plaintiff is a New Hampshire corporation, with its principal
place of business in Massachusetts, and it is licensed to do business in North Carolina.
Plaintiff issued payment and performance surety bonds on behalf of defendant Global in
connection with multiple construction contracts. In exchange, defendants executed an agreement
on March 5, 2004, to indemnify plaintiff "from and against every claim, demand, liability, cost,
charge, suit, judgment and expense which [plaintiff] may pay or incur, including, but not limited to,
loss, interest, court costs and consultant and attorney fees" arising from the issuance of the payment
and performance bonds. Compl. Ex. A
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2 [hereinafter Agreement].
Under the contract, "[p]ayment shall be made to [plaintiff] by [defendants] as soon as liability
exists or is asserted against [plaintiff]," in sufficient amount "to indemnify and hold [plaintiff]
harmless from and against any loss, cost, interest, and expense."
Agreement~ 3.
The payment from
defendants to plaintiff shall be either "the amount of the claim, demand, or suit asserted against the
bond or bonds by any claimant or obligee, plus the amount [plaintiff] deems sufficient, in its sole
discretion, to indemnify and hold it harmless from and against any loss," or, if the amount is
"unascertainable or unliquidated," then "the amount [plaintiff] deems sufficient, in its sole
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discretion, to indemnify and hold it harmless from and against any loss." ld. The contract further
provides plaintiff"shall have the right to hold such funds [paid by defendants] as collateral ... until
[defendants] serve evidence satisfactory to [plaintiff] of its discharge from all bonds." Id. Plaintiff
also has the right "to use such funds or any part thereof, at any time, in payment or settlement of any
judgment, claim, liability, loss, damage, fees, or any other expense." ld.
Plaintiff has "the exclusive right to adjust, settle, or compromise any ... proceeding arising
out of any bond against [plaintiff] and/or [defendants], take whatever action it deems appropriate in
response thereto, and its determination of whether to defend or settle the same shall be binding and
conclusive upon [defendants]." Agreement ,-r 3. To prove the amount owed to plaintiff, "[v]ouchers
or other evidence of payment by [plaintiff] shall be conclusive evidence of the fact and amount of
such liability, necessity, or expediency and of [defendants'] liability to [plaintiff] therefor." Id.
Defendants executed the document as indemnitors, with each individual signing as such and
defendant Ricky A. Lanier also signing on behalf of defendant Global, as its president. Agreement 3.
Above the signatures, the indemnity agreement states: "IN WITNESS WHEREOF, the lndemnitors
who are individuals have hereunder set their hands and seals, and the Indemnitors which are ...
corporations ... have caused the Agreement to be duly executed by their authorized representatives
. . . ." Id. The instructions for the execution of the document, found immediately after the
signatures, read as follows: "If the Indemnitor is an individual, type full name, sign on next line, and
fill in address, SS#, and DO B. If the Indemnitor is a corporation, type full name, impress with seal,
sign on next line along with capacity of officer signing, and fill in corporate address and Fed. Tax
ID #." Id. at 4. No seals or placeholders such as "(SEAL)'' or "L.S.," appear next to the individual
defendants' signatures, and defendant Global's corporate seal is not impressed upon the document.
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Several claims have been brought against plaintiff in connection with the contract surety
bonds on defendants' account. Plaintiff settled and paid all but one of the claims, and incurred costs
and expenses in the course of investigating and defending the claims and lawsuits. Plaintiff also
hired an accounting firm to review defendant Global's books and records. Finally, plaintiff has
incurred, and continues to incur, expenses enforcing its rights under the indemnity agreement. The
payment issuance dates range from June 19, 2008, to February 26, 2013. The total calculation of
expenses plaintiff seeks pursuant to the indemnity agreement from defendants is $206,748.56.
On June 20, 2009, counsel for plaintiff sent an e-mail correspondence to defendants
explaining the expenses already incurred at that time were approximately $81,000 and that plaintiff
expected to expend another $85,000 in the near future.
Therefore, plaintiffs counsel stated,
"[plaintiff] hereby demands that [defendants] post cash collateral as provided in their Agreement of
Indemnity ... in the amount of$170,000." Pl.'s Interrogs. Ex. 1. In the alternative, plaintiff sought
financial information on defendants' ability to pay.
In a letter dated May 11 , 20 11, counsel for plaintiff summarized further expenses that had
been paid and would be pending in order to settle claims on defendants' account. The letter further
stated that plaintiff"demands that [defendants] immediately reimburse and indemnify [plaintiff] in
the amount of $140,000." Pl.'s Interrogs. Ex. 2. Plaintiff also "demands that the indemnitors post
cash collateral in the amount of $11 0,000." Id. Counsel for plaintiff also repeated the request for
defendants' financial information.
A second letter dated March 20, 2012, from plaintiffs counsel states as follows:
At this time, [plaintiff] has incurred a total of$178,903.97 in loss and expense but
has not received any collateral from you or been indemnified in any amount.
[Plaintiff] hereby demands that you fully reimburse the above amount immediately
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or, if you dispute that debt, post cash collateral in the amount of$205,000 within five
days of the date of this letter.
Pl.'s Interrogs. Ex. 3. The letter further stated that plaintiff would "enforce its rights under the
Agreement oflndemnity, if necessary by filing suit to recover its loss and expense." Id. Defendants
did not make any payments to plaintiff, giving rise to the current action.
COURT'S DISCUSSION
A.
Standard of Review
Summary judgment is appropriate where "the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986) (holding that a factual
dispute is "material" only if it might affect the outcome of the suit and "genuine" only if there is
sufficient evidence for a reasonable jury to find for the non-moving party). The party seeking
summary judgment bears the initial burden of demonstrating the absence of any genuine issue of
material fact. Celotex Com. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met
its burden, the nonmoving party then must affirmatively demonstrate with specific evidence that
there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith
Radio Com., 475 U.S. 574, 586-87 (1986).
Summary judgment is not a vehicle for the court to weigh the evidence and determine the
truth of the matter, but to determine whether a genuine issue exists for trial. Anderson, 4 77 U.S. at
249.
In making this determination, the court must view the inferences drawn from the underlying
facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S.
654, 655 (1962). Only disputes between the parties over facts that might affect the outcome of the
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case properly preclude the entry of summary judgment. Anderson, 4 77 U.S. at 24 7-48. Accordingly,
the court must examine the materiality and the genuineness of the alleged fact issues in ruling on this
motion. Id. at 248-49.
B.
Analysis
An indemnity agreement "obligates the indemnitor to reimburse his indemnitee for loss
suffered or save him harmless from liability." New Amsterdam Cas. Co. v. Waller, 64 S.E.2d 836,
828 (N.C. 1951 ). Indemnity contracts generally are enforced according to their terms. See. e.g.,
American Ins. Co. v. Egerton, No. 94-1911, 1995 WL 371452, at *2-3 (4th Cir. 1995) (unpublished
per curiam opinion) (enforcing a North Carolina indemnity agreement with substantially identical
language according to its terms); First Nat. Ins. Co. Of America v. Sappah Bros. Inc., 771 F. Supp.
2d 569, 576 (E.D.N.C. 2011) (enforcing a substantially similar indemnity agreement between a
construction contractor and the surety on its payment and performance bonds). "[A] cause of action
on an obligation to indemnify normally accrues when the indemnitee suffers actual loss." Premier
Corp. v. Economic Research Analysts. Inc., 578 F.2d 551, 553-54 (4th Cir. 1978) (holding that
plaintiff's claim for indemnity under the contract was not barred by North Carolina's statute of
limitations).
In this case, there is no genuine issue of fact that defendants signed the indemnity agreement
or that it is a valid contract. See Resp. 1-2. There is also no genuine issue of fact that some portion
of plaintiff's losses were suffered since March 29, 2009, and thus are not barred by any statute of
limitations. See Cotto Aff. Ex. A (detailing indemnity costs with dates ranging from June 19,2008,
to February 26, 2013); Reply 4-5 (alleging that the total costs incurred since March 29, 2009, are
$14 7, 131.06). Therefore, the court grants summary judgment in favor of plaintiff on the issue of
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liability and holds that plaintiff is entitled to that portion of losses suffered since March 29, 2009,
specified to be $14 7, 131.06. The remaining issue is whether plaintiff is also entitled to damages in
excess of this amount.
Plaintiff raises two arguments in support of full recovery of $206,748.56: first, that the
indemnity agreement was signed under seal, and therefore the statute of limitations is ten years
pursuant to N.C. Gen. Stat. 1-47(2); and second, that the contractual provision on posting collateral
was breached within three years pursuant to plaintiffs June 20, 2009, letter demanding $170,000.00
in collateral. Reply 1-5. The court turns first to the ten-year statute oflimitations question.
If the indemnity agreement was signed under seal, then the statute oflimitations is ten years,
otherwise it is three years. See N.C. Gen. Stat.§§ 1-47(2), 1-52(1). In North Carolina, "if it appears
without ambiguity, on the face of the contract, that a party signed under seal, it is held as a matter
of law that the contract is under seal. If it is ambiguous as to whether a party adopted a seal, it is a
jury question as to whether the party signed under seal." Central Systems. Inc. v. General Heating
& Air Conditioning Co. of Greenville. Inc., 268 S.E.2d 822,824 (N.C. Ct. App. 1980) (citing Bank
ofN.C .. N.A. v. Cranfill, 253 S.E.2d 1 (N.C. 1979).
Contracts with a preprinted seal, the word "SEAL" in parentheses or brackets, or "L.S."
(locus sigilli) next to or otherwise close by each individual signature are considered unambiguously
sealed. See. e.g., Cameron v. Martin Marietta Corp., 729 F. Supp. 1529, 1530-31 (E.D.N.C. 1990)
(holding that the presence of the word "seal" next to signatures qualifies the document as sealed);
Bank of N.C., 253 S.E.2d at 1 (finding that "witness our hands and seals" plus (SEAL) next to
signature qualifies document as unambiguously sealed); Mobil Oil Corp. v. Wolfe, 252 S.E.2d 809,
809-11 (N.C. 1979) (indicating that "L.S." next to signatures qualifies document as unambiguously
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sealed); Bell v. Chadwick, 39 S.E.2d 743, 744 (N.C. 1946) (holding that [SEAL] next to signatures
qualifies document as unambiguously sealed). However, the mere attachment of a corporate seal to
a contract, which shows that the corporation is a party to the contract, does not make that contract
signed under seal. See Square D Co. v. C.J. Kern Contractors. Inc., 334 S.E.2d 63, 65-66 (N.C.
1985) (affirming summary judgment for defendants where the corporate seal was attached to the
contract to show that the execution of the contract was duly authorized by the corporation as a party
to that agreement, but no other indicators of a contract under seal were present).
The indemnity agreement in this case contains language above the signatures which suggests
some intent to sign under seal. See Agreement 3 (stating "set their hands and seals"). No such
language was contained in the contract at issue in SquareD, where the court held as a matter oflaw
that the contract was not signed under seal. See SquareD, 334 S.E.2d at 66. However, this contract
is missing any actual seals or seal equivalents, which would indicate that the document is
unambiguously sealed. See Bank ofN.C., 253 S.E.2d at 1. Thus, there is a genuine issue of fact as
to whether the contract is signed under seal. Accordingly, plaintiff is not entitled to summary
judgment on the basis that the statute of limitations is ten years.
Plaintiff argues that even under the three-year statute of limitations it is entitled to the full
recovery of$206, 748.56 through the collateral demand provision ofthe indemnity agreement. Reply
4. This provision provides:
Payment shall be made to [plaintiff] by [defendants] as soon as liability exists or is
asserted against [plaintiff], whether or not [plaintiff] shall have made any payment
therefor. Such payment to [plaintiff] shall be: a) if the amount asserted as a claim,
demand or suit is an ascertainable or liquidated amount, the amount of the claim,
demand, or suit asserted against the bond or bonds by any claimant or obligee. plus
the amount [plaintiff] deems sufficient, in its sole discretion, to indemnify and hold
it harmless from and against any loss, cost, interest, and expense necessary to defend,
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investigate, or adjust the claim, demand, or suit; or b) if the amount asserted as a
claim, demand, or suit is an unascertainable or unliquidated amount, the amount
[plaintiff] deems sufficient, in its sole discretion, to indemnify and hold it harmless
from and against any loss, cost, interest, and expense necessary to defend, investigate,
or adjust the claim, demand, or suit. [Plaintiff] shall have the right to hold such funds
as collateral (without any obligation to earn interest on the collateral for
[defendants]) until [defendants] serve evidence satisfactory to [plaintiff] of its
discharge from all bonds and all liability by reason thereof, and to use such funds or
any part thereof, at any time, in payment or settlement of any judgment, claim,
liability, loss, damage, fees, or any other expense.
Agreement ~ 3 (emphasis added). Plaintiff asserts that its e-mail correspondence, characterized as
a "collateral demand" for $170,000.00 on June 20, 2009, provides an alternate avenue aside from
direct indemnity through which to recover. Reply 4. The "demand" was sent within the three-year
statute oflimitations, and may be combined with losses and expenses actually incurred since March
29, 2009, to provide full recovery. Reply 4.
The court finds plaintiffs argument to be without merit. The undersigned notes plaintiff cites
no legal authority for the assertion that its collateral demand provides the proper date for accrual of
the statute oflimitations. Reply 4-5. Furthermore, the plain language of the contract indicates that
the payment which plaintiff may hold as collateral, "shall be made ... as soon as liability exists or
is asserted."
Agreement~
3. Thus, the provision on holding funds as collateral is not sufficient to
disturb North Carolina's general rule that the statute of limitation for an indemnity agreement
accrues "when the indemnitee suffers actual loss." See Premier Corp., 578 F.2d at 553-54.
In sum, plaintiff is entitled to summary judgment on the issue of liability, and for purposes
of recovery to $14 7, 131.06, plus pre-judgment interest on that amount accruing at the legal rate of
eight percent per annum from and after March 29, 2009, up to and until date ofjudgment. However,
given that there is a triable issue of fact as to whether the indemnity agreement was signed under
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seal, the vehicle of a summary judgment for the additional amount of$59,617.50, accruing prior to
March 29, 2009, for recovery of the total amount of $206,748.56, as of February 28, 2013, is
unavailable.
Plaintiffs entitlement to that additional sum of$59,617.50, as well at to any amounts owing
from and after February 28,2013, remain at issue in the case, and where it appears plaintiff also is
entitled to its reasonable attorneys fees, final determination of the dollar amount of those fees. Trial
on these remaining issues is set for August 19, 2013, at Raleigh, pursuant to notice which issued
June 19, 2013, also setting the case for final pretrial conference at New Bern August 5, 2013. The
parties shall make reference in their final pretrial preparations also to the court's case management
order entered at docket number 39.
Where the court earlier allowed counsel for defendants to withdraw, and set a deadline for
new counsel to file notice(s) of appearance, on or before July 9, 2013, with reminder in its order that
the corporate defendant cannot by law proceed prose, the court takes note also oftoday's deadline
for such action to be taken.
CONCLUSION
For the foregoing reasons, plaintiffs motion for summary judgment is GRANTED in part
and DENIED in part, in accordance with this order. The clerk shall serve this order upon plaintiff
through counsel and on the individual defendants at the address(es) provided by formal counsel.
SO ORDERED, this the 9th day of July, 2013.
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