Travelers Casualty & Surety Co. of America v. J.O.A. Construction Co., 479 F. App'x 684

Travelers acted as JOA and Akinwusi’s surety for bonds on commercial projects since 1989 under indemnification agreements.
The indemnity agreement allowed Travelers to determine claims and require collateral, with Travelers’ determinations final and binding.
Loss under the agreement included attorneys’ fees and costs Travelers incurred in relation to bonds, among other losses.
Travelers filed suit in 2007 seeking indemnification and collateral after JOA and Akinwusi failed to pay, and the district court granted summary judgment for Travelers in 2009 for over $6 million with substantial collateral.
Appellants later moved for Hirsch post-judgment relief arguing that defense counsel’s concurrent representation of Travelers in collateral proceedings created an attorney-conflict that prevented opposition to Travelers’ motion; the district court denied, and the Sixth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the indemnification agreement require proof that losses were “properly due and owing” to trigger indemnification?	Travelers’ sworn loss statement suffices as prima facie evidence of liability.	Indemnification requires proof that claims were properly due and owing.	No; sworn statement suffices; no separate “properly due and owing” showing needed.
Did Appellants’ failure to plead bad faith as an affirmative defense, and the alleged attorney-conflict, require reversal or withdrawal of summary judgment under Rule 60?	Travelers complied with the indemnity clause; defenses lack merit.	Bad faith and conflict should void or reopen judgment; conflict prevented proper defense.	Appellants forfeited bad-faith defense by not pleading; no abuse of discretion; Rule 60 relief denied.
Whether the district court properly applied the Hirsch remand standard and reviewed the Rule 60(b) claims for abuse of discretion?	District court correctly applied abuse-of-discretion standard after final judgment.	Should apply de novo review given attorney-conflict claims.	Abuse-of-discretion standard applied and affirmed; no reversible error.

First National Bank v. Hirsch, 535 F.2d 343 (6th Cir. 1976) (sets Hirsch remand procedure in Rule 60 context)
Transamerica Premier Ins. Co. v. Nelson, 878 P.2d 314 (Nev. 1994) (treats bad faith as an affirmative defense to coverage in some contexts)
Gordon v. Norman, 788 F.2d 1194 (6th Cir. 1986) (prejudice from attorney-conflict requires evidence of adverse representation and impact)
Grand Trunk Western R.R., Inc. v. Auto Warehousing Co., 686 N.W.2d 756 (Mich. Ct. App. 2004) (due process considerations in indemnification contexts; tender/defense distinctions)
Ajax Paving Indus., Inc. v. Vanopdenbosch Constr. Co., 797 N.W.2d 704 (Mich. Ct. App. 2010) (indemnity regime and burden-shifting for proof of losses; no duty to tender defense absent contract terms in indemnity context)
Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448 (6th Cir. 2008) (fraud under Rule 60(b)(3) requires knowing misrepresentation or concealment with duty to disclose)
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993) (finality policy for post-judgment relief; standards in equity)
Barzingus v. Wilheim, 306 F.3d 17 (10th Cir. 2010) (summary judgment standards related to arbitration/settlement contexts)