Safeco Ins. Co. v. LAKE ASPHALT PAVING & CONST.Safeco Ins. Co. v. LAKE ASPHALT PAVING & CONST.
SAFECO INSURANCE COMPANY OF AMERICA, Plaintiff,
v.
LAKE ASPHALT PAVING & CONSTRUCTION, LLC, et al., Defendants.
Unitеd States District Court, E.D. Missouri, Eastern Division.
*821 Carol Z. Smith, Gilliland and Hayes, P.C., Overland Park, KS, for Plaintiff.
Neil J. Bruntrager, Charles H. Billings, Bruntrager and Billings, St. Louis, MO, for Defendants.
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This matter is before the Court on plaintiff Safeco Insurance Company of America's motion for partial summary judgment on Count IV for specific performance against defendants.[1] Defendants oppose *822 the motion. For the following reasons, the Court will grant the motion for partial summary judgment and order defendants to pay or deposit collateral with plaintiff in the amount of $1,990,070.00 no later than September 8, 2011.
I. Background.
This action arises out of payment and performance bonds issued by plaintiff Safeco Insurance Company of America ("Safeco"), as surety, and defendant Lake Asphalt Paving & Construction, LLC ("Lake Asphalt"), as principal, with respect to two construction projects. In connection with these projects, defendants entered into a General Agreement of Indemnity for Contractors ("Indemnity Agreement") with Safeco, under which defendants pledged to hold Safeco harmless from claims and other expenses incurred by Safeco in connection with the bonds. Lake Asphalt defaulted on both projects. Pursuant to its performance bond obligations, Safeco contracted with other companies to complete the projects.
Safeco asks the Court to grant summary judgment on Count IV of its complaint, which seeks specific performаnce of the portion of the Indemnification Agreement obligating defendants to post collateral security in the amount of Safeco's reserve $1,990,070to cover Safeco's potential liability under the bonds.[2] The motion calls on this Court to address the question of whether a surety is entitled to specific performance to enforce its contractual rights to collateral. For the reasons stated below, the Court finds that in this case Safecо is entitled to enforce the collateral security clause of the Indemnity Agreement through specific performance.
II. Legal Standard.
The standards applicable to summary judgment motions are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett,
Once the burden shifts, the non-moving party may not rest on the allegations in its рleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. *823 Fed.R.Civ.P. 56(e); Herring v. Canada Life Assur. Co.,
III. Facts.[3]
On March 6, 2006, defendants Lake Asphalt; Gaines Leasing & Investment, LLC; Gaines Construction, Inc.; DGN, Inc.; William Gaines; Patricia Gaines; Keith A. Denney; Jeannie M. Denney; Michael L. Rogers; Sandra Rogers; and Harold E. Neumann executed the Indemnity Agreement in favor of Safeco.[4] Safeco, as surety, issued performance bonds and payment bonds on behalf of defendant Lake Asphalt, as contractor, fоr various construction contracts including the following:
1. Performance and Payment Bond No. 6546173 dated June 30, 2008, each in the penal sum of $4,053,658.61, with McAninch, Inc. as obligee, with respect to the Route 54, Camden County Job #J5P0309A and J5P0648A ("Route 54 Project").
2. Performance and Payment Bonds No. 6475121 dated November 1, 2007, each in the penal sum of $3,750,610.42, with Progressive Contractors, Inc. as obligee, with respect to Route 36, Marion and Shelby County Job #J3P0409C and J3P0410 ("Route 36 Project").
In a letter dated March 4, 2010, the general contractor on the Route 54 Project, McAninch Inc. ("McAninch"), declared Lake Asphalt to be in default and called upon Safeco to honor the obligations of its performance bond. Lake Asphalt acknowledged to Safeco that it was unable to complete the performance of the work or comply with its contractual obligations to McAninch on the Route 54 Project and voluntarily abandoned that project.
Pursuаnt to its performance bond obligations, Safeco contracted with Magruder Paving, LLC ("Magruder") to complete the Route 54 Project. Safeco estimated *824 there would be a shortfall of at least $1,549,885.12 between the remaining contract balances to be paid to Safeco by McAninch and the costs to complete the Route 54 Project. Safeco also estimated a potential for the assessment of liquidated damages and other expenses could total as much as $800,000.00.
In an e-mail dated March 17, 2010, the general contractor on the Route 36 Project, Progressive Contractors, Inc. ("Progressive"), directed Lake Asphalt to begin work on the Route 36 Project no later than March 29, 2010 and requested confirmation that Lake Asphalt could complete the work. Lake Asphalt acknowledged to Safeco that it was unable to complete the work or comply with its contraсtual obligations to Progressive on the Route 36 Project and voluntarily abandoned that project.
Pursuant to its performance bond obligations, Safeco contracted with Magruder to complete the Route 36 Project. Safeco estimated that there would be a shortfall of at least $225,405.85 between the remaining contract balances to be paid to Safeco by Progressive and the cost to complete the Route 36 Project. Safeco anticipated it would incur consultant and legal fees and expenses of $303,920.00 as a result of issuing the bonds and in conjunction with the completion of the bonded projects.
As of May 18, 2010, Safeco had set a reserve in the amount of $2,890,270.00. At the time of posting this reserve, completion work on the two bonded projects was just starting. Since that time, construction on both projects has been completed and certain contingencies that werе budgeted for in the reserve have not occurred. After briefing on Safeco's motion for partial summary judgment closed, Safeco reduced its reserve to $1,990,070.00. Consequently, Safeco amended and reduced its prayer for relief in Count IV to an order requiring defendants to provide cash or collateral in the amount of $1,990,070.00, the amount of Safeco's amended reserve. See Supplement to Pl's Mot. for Partial Summ. J. (Doc. 79).
The Indemnity Agreement obligates Indеmnitors to pay Safeco, upon demand:
1. All loss, costs and expenses of whatsoever kind and nature, including court costs, reasonable attorney fees (whether [Safeco] at its sole option elects to employ its own attorney, or permits or requires [Indemnitors] to make arrangements for [Safeco's] legal representation), consultant fees, investigative costs and any other losses, costs or expenses incurred by [Safeco] by reason of having executed any Bond, or incurred by it on account of any Default under this agreement by any of the [Indemnitors], or by reason of the refusal to execute any Bond. In addition the [Indemnitors] agree to pay to [Safeco] interest on all disbursements made by [Safeco] in connection with such loss, costs and expenses incurred by [Safeco] at the maximum rate permitted by law calculated from the date of each disbursement.
2. An amount sufficient tо discharge any claim made against [Safeco] on any Bond whether [Safeco] will have made any payment or established any reserve therefor. Such payment to be in the minimum amount of any reserve set by [Safeco]. This sum may be used by [Safeco] to pay such claim or be held by [Safeco] as collateral security against loss on any Bond. The [Indemnitors] acknowledge that their failure to pay, immediately upon demand, that sum demanded by [Safeсo] will cause irreparable harm for which [Safeco] has no adequate remedy at law. The [Indemnitors] confirm and acknowledge that [Safeco] is entitled to injunctive relief *825 for specific enforcement of the foregoing provision.
The Indemnity Agreement further provides in the GENERAL PROVISIONS section:
The [Indemnitors] will, on request of [Safeco], procure the discharge of [Safeco] from any bond and all liability by reason thereof. If such discharge is unattainable, the [Indemnitors] will, if requested by [Safeco], either deposit collateral with [Safeco], acceptable to [Safeco], sufficient to cover all exposure under such bond or bonds, or make provisions acceptable to [Safeco] for the funding of the bonded obligation(s).
On May 18, 2010, Safeco demanded the defendants as indemnitors indemnify it for its payment of expenses through March 31, 2010 of $10,859 and provide cash or collateral security in the amount of its remaining reserve of $2,879,211 (as stated above, now reducеd to $1,990,070) on or before June 7, 2010. Defendants have not indemnified Safeco for any of its losses or expenses and have not provided any cash or acceptable collateral to Safeco in response to its demand.
IV. Discussion.
A. The Indemnity Agreement
Pursuant to the terms of the Indemnity Agreement, defendants are required to pay Safeco, upon demand, "an amount sufficient to discharge any claim made against [it], whether [Safeco] will have made any payment or established any reserve therefor. Such payment to be the minimum amount of any reserve set by [Safeco]." Indemnity Agreement at 1. The payment may be used by Safeco as collateral security against any loss on the bonds. Thus, upon Safeco's demand, the defendants are required to pay funds to Safeco in the minimum amount of its reserve, and these funds may be held by Safeco as collateral security against loss on the bonds. Additionally, defendants agreed that if thеy could not procure the discharge of Safeco from any bond and all liability, defendants would "deposit collateral with [Safeco], acceptable to [Safeco], sufficient to cover all exposure under such bond or bonds, or make provisions acceptable to [Safeco] for the funding of the bonded obligation(s)." Id. at 2.
Defendants do not argue any ambiguity in the terms of the Indemnity Agreement. Nor do they dispute that (1) they executed the Indemnity Agrеement; (2) Safeco issued bonds and received claims on those bonds; (3) Safeco demanded cash or collateral in the amount if its reserve; and (4) defendants did not provide cash or collateral. See Pl.'s Statement of Facts; Defs.' Mem. in Opp'n to Pl.'s Mot. for Partial Summ. J.
In this diversity action, the Court must look to Missouri state law to establish the validity and enforceability of indemnity agreements between a principal and a surety. The Court has not found, and the parties do not cite, any Missouri cases addressing enforcement of a collateral security provision of a surety's indemnity agreement. Numerous courts in other states, however, have held that similar provisions require indemnitors to provide funds or post collateral security in the amount of the surety's reserve. See Safeco Ins. Co. of Am. v. Schwab,
Under the terms of the Indemnity Agreement, the event that triggered defendants' obligation to provide collateral was Safeco's demand for payment in the amount of the established reserve. Safeco argues that defendants hаve breached the clear terms of the Indemnity Agreement, and defendants do not dispute this. As of May 18, 2010, Safeco had established a reserve in the amount of $2,890,270, which it has subsequently lowered to $1,990,070, with respect to the claims it received on its performance bond obligations. See Rockenbach Aff. at ¶¶ 5-9. Pursuant to the terms of the Indemnity Agreement, Safeco made demand upon defendants to provide it with funds or collateral security in the amount of the reservе. Defendants have refused.
B. The Equitable Remedy of Specific Performance
By its motion for partial summary judgment, Safeco seeks injunctive relief to compel defendants to post collateral in the amount of Safeco's reserve. Specific performance, as sought by plaintiff, is purely an equitable remedy, governed by equitable principles. See Kopp v. Franks,
Although defendants signed the Indemnity Agreement, agreeing that "[plaintiff] is entitled to injunctive relief for specific enforcement of the foregoing [collateralization] provision," it is for the Court to decide whether to grant the remedy of specific performance. "Specific performance of a contract is never decreed when its enforcement would be inequitable or unconscionable, or produce injustice or hardship or where the specific performance of the contract would operate oppressively as to either party, even though there is no sufficient ground for recision or cancellation." Kopp,
Safeco argues that an adequate remedy at law does not exist because it would deprive Safeco of its contractual prejudgment relief. Safeco cites case law in support of the proposition that for a surety in this situation, "it is not simply an issue of monetary loss; rather, it is an issue of impairing a surety's expectation and requiring it to suffer any loss, even if only temporary, associated with the performance of a primary obligor's duty." Travelers Cas. & Surety Co. v. Ockerlund, 2004 *827 WL 1794915, *5 (N.D.Ill. Aug. 6, 2004). Several courts have found that the law favors protecting a surety's right to collateralization by granting specific performance. These courts find that although damages might be available to the surety in the future, the surety would be deprived of its contractual right to be placed in funds to be used to pay claims and expenses incurred on the bonded projects. In such cases, as in this case, the surety bargained for a collateral sеcurity clause to protect it from the impending risks of liability once a claim had been made on the bond. See Far West Ins. Co.,
The plain language of the Indemnity Agreement requires defendants to pay Safeco, upon demand, an amount sufficient to cover all exposure under the bonds issued on behalf of Lake Asphalt. See Indemnity Agreement at 1. This includes all loss, costs, and expenses of whatsoever kind and nature. Id. Courts have required indemnitors to post collateral security under similar language, and routinely grant motions for summary judgment in favor of a surety for specific performance of the collateral security obligation. See, e.g., Fidelity & Deposit Co. of Md. v. D.M. Ward Constr. Co., Inc.,
The Court finds that Safeco is entitled to the equitable remedy of specific performance of its contractual right to collateralization in the amount of its reserve. As the Ninth Circuit has observed, sureties are ordinarily entitled to specific performance of collateral security clauses. See Schwab,
C. The Amount of the Reserve
Defendants argue that other facts are relevant to the Court's determination of summary judgment. Specifically, defendants complain about the amount of the reserve set by Safeco: (1) they claim that the conditions that led to Lake Asphalt's default were due to the failure of the general contractors to complete work in a timely fashion, preventing Lake Asphalt from commencing work at the contracted time; and (2) they claim that Safeco's reserve amount is more thаn what the defendants *828 contend it should cost to complete the actual construction of the projects.
While it might be true that Lake Asphalt's default was caused by the general contractors' delays, this is immaterial to Safeco's motion for partial summary judgment. As stated in Fidelity & Deposit Co. v. D.M. Ward. Const. Co., Inc., the issue currently before the court is not whether plaintiff is entitled to an award of damages. Rather, the Court only determines whether defendants must post collateral security in acсordance with the Indemnity Agreement. Id.,
Also, the Court is not persuaded by defendants' argument that the reserve is too high, and therefore they should not be required to post collateral. Safeco detailed the process by which it set the reserve in the affidavit of Kenneth W. Rockenbach. See Rockenbach Aff., Ex. C. Mr. Rockenbach is the Home Office Counsel for Liberty Mutual Surety and is responsible for handling claims made against bonds issued by Safeco, including the bonds at issue. Safeco based the amount of its reserve on anticipated and estimated loss and expense, and has subsequently lowered this amount. See id.; see also Pl.'s Response to Supplement to Defs.' Mot. in Opp'n to Pl.'s Mot. for Partial Summ. J. (Doc. 87). The Court cannot find any evidence of bad faith in the actions of Safeco in setting the reserve. Moreover, the only case law cited by defendants in support of their position is Centronics Corp. v. Genicom Corp.,
The Court determines, based on uncontroverted facts, that plaintiff is entitled to specific performance as requested in Count IV of its complaint. The Court will enter partial summary judgment in favor of plaintiff.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for partial summary judgment on Count IV is GRANTED. [Doc. 52]
IT IS FURTHER ORDERED that pursuant to the terms of the General Agreement of Indemnity for Contractors, defendants shall pay or deposit collateral with plaintiff in the amount of $1,990,070.00 no later than September 8, 2011.
An order of partial judgment will accompany this memorandum and order.
NOTES
Notes
[1] Safeco's motion is not directed to defendant Donald G. Mantle. Sаfeco obtained a Clerk's Entry of Default against Mr. Mantle on January 31, 2011. Currently pending before the Court is Safeco's motion for entry of default judgment against Mr. Mantle.
[2] Originally, in its motion for partial summary judgment, Safeco sought collateral security in the amount of $2,890,270. At the time it posted this reserve, completion work on the two bonded projects had just started. Since that time, and after briefing on summary judgment closed, construction on both projects has been completed and certain contingencies that were budgeted for in the reserve have not occurred. Consequently, Safeco lowered its reserve to $1,990,070. See Supplement to Pl.'s Mot. for Partial Summ. J. (Doc. 79).
[3] This statement of facts is taken from plaintiff's Statement of Uncontroverted Material Facts, filed with its motion for partial summary judgment. See Doc. 53. In response, defendants filed both a "Motion in Opposition to [Safeco's Motion for Partial Summary Judgment]" (Doc. 70) and a "Memorandum in Support of Motion in Opposition to [Safeco's Motion for Partial Summary Judgment]" (Doc. 71). Neither document includes a statement of material facts as to which the party contends a genuine issue exists as required by Local Rule 7-4.01(E). Defendants have not controverted plaintiff's Statement of Uncontroverted Material Facts, and therefore these facts are deemed admitted. See E.D. Mo. L.R. 7-4.01(E).
[4] The Indemnity Agreement refers to the defendants as the "Undersigned." Each of the individual defendants signed the Indemnity Agreement individually, and none have made any argument that they are not bound by the Indemnity Agreement.