524 F. App'x 946
5th Cir.2013Background
- ABS entered a subcontract with Yates to install a retaining wall at Emerald Star Casino; NYM Insurance and Allstar issued a performance bond and indemnity agreement securing ABS’s obligations.
- ABS and its principal Bertas executed an indemnity agreement assigning bond claims to NYM and giving NYM authority to determine bond payments and apply collateral.
- The indemnity agreement contains a Georgia choice-of-law provision governing interpretation.
- Project delays and cost overruns led to ABS’s claim against Yates; negotiations occurred April–July 2008, ending with NYM settling with Yates for $155,000 and releasing NYM’s bond obligations.
- ABS and Bertas sued NYM and Allstar for breach of indemnity, fiduciary duty, conspiracy, tortious interference, and outrage; court granted partial summary judgment and held Georgia law would govern contract claims.
- Trial ended with a deadlocked jury; court gave a modified Allen charge and final judgment for defendants on all counts
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law governs contract claims | ABS argues Mississippi law should apply | NYM/Allstar claim Georgia law applies due to the clause and relationship | Georgia law governs the contract claims |
| Summary judgment on fiduciary duty and conspiracy | Record could support breach of fiduciary duty and conspiracy | No genuine issue; conduct consistent with good faith | No triable issue; district court correct to grant summary judgment |
| Allen charge modification | Modification was coercive or prejudicial | Modifications were permissible and Civil pattern used | No reversible error; charge within acceptable bounds |
Key Cases Cited
- Ellis v. Trustmark Builders, Inc., 625 F.3d 222 (5th Cir. 2010) (de novo choice-of-law review in diversity cases)
- Herring Gas Co. v. Magee, 22 F.3d 603 (5th Cir. 1994) (enforceability of chosen-state law when substantial relationship exists)
- Asbury MS Gray-Daniels, L.L.C. v. Daniels, 812 F. Supp. 2d 771 (S.D. Miss. 2011) (supporting enforcement of choice-of-law provision)
- Moss v. BMC Software, Inc., 610 F.3d 917 (5th Cir. 2010) (summary judgment standard and record viewed in movant’s favor)
- Copsey v. Swearingen, 36 F.3d 1336 (5th Cir. 1994) (need for specific evidence to support breach claims on summary judgment)