United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
CALLIE
V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE
This
matter is before the court on Plaintiff's motion for
summary judgment and brief in support thereof (Docs. 34 and
35), Defendants' response (Doc. 38), and Plaintiff's
reply (Doc. 39). For the reasons explained below,
Plaintiff's motion for summary judgment is due to be
granted.
PROCEDURAL
AND FACTUAL BACKGROUND[1]
This
action arose as a result of payment and performance bonds
that were issued by American Southern Insurance Company
(“ASIC”) on projects to be performed by Peavy
Construction Company, Inc. (Doc. 1; Doc. 55-1).[2] As a condition
precedent to ASIC issuing performance and payment bonds on
behalf of Peavy Construction Company, Defendants John and
Kathleen Peavy (“Defendants”) were required to
execute a General Agreement of Indemnity (“GAI”)
as Indemnitors in favor of ASIC. (Doc. 35-2). The GAI was
executed on March 1, 2013 by John Peavy as the President of
Peavy Construction, John Peavy individually, and Kathleen
Peavy, individually. (Id.)
Pursuant to the GAI, Defendants agreed to
indemnify and save harmless the Surety from and against any
and all liability, loss, costs damages or expenses of
whatever nature or kind and arising out of or in any way
connected with such bonds, including but not limited to fees
of attorneys and other expenses, cost and fees of
investigation, adjustment of claims, procuring or attempting
to procure the discharge of such bonds and attempting to
recover losses or expenses from indemnitors or third parties
whether the Surety shall have paid or incurred same, as
aforesaid.
(Id. at ¶ 2). Defendants granted ASIC,
“the right in its sole discretion to determine whether
any suits or claims shall be paid, compromised, defended,
prosecuted or appealed and to pay out such sums as it deems
necessary to accomplish any of those purposes and its
determination as to whether such suit or claim should be
settled or defended shall be binding and conclusive on
Indemnitors.” (Id. at ¶ 2.A.). Further,
the GAI dictated that, “in any claim or suit hereunder,
an itemized statement of aforesaid loss and expense, sworn to
by an officer or agent of Surety, or the vouchers or other
evidence of disbursement by Surety, shall be prima facie
evidence of the fact and extent of the liability hereunder of
the Indemnitors.” (Id.) Defendants
additionally agreed, “if the Surety has cause to
enforce the terms of this Indemnity Agreement by filing suit
against Indemnitors to recover sums due under this Agreement,
it is understood by the Principal and the Indemnitors that
the Surety may recover its further expenses of such
litigation, accrued interest and including 25% of such sums
as attorneys' fees.” (Id. at ¶ 2.B.).
ASIC
received payment bond claims on Peavy Bond numbers 61154,
61894, 61880, 61176, 61168, and 61876. (Doc. 35-1 at 3, 7).
The City of Mobile also made a performance bond claim against
Performance Bond No. 61880. (Id.) ASIC has incurred
losses in the satisfaction of payment and performance bond
claims on bonds issued on behalf of Peavy Construction
Company in the amount of $266, 716.51 (Doc. 35-1 at 1-53).
ASIC has paid attorneys' fees and costs associated with
the litigation of this action in amount of $12, 609.97
through November 12, 2018, has been billed for fees in the
amount of $2, 679.00 through November 29, 2018; and continues
to incur fees while this action is ongoing. (Doc. 35-1 at
54-57).
Plaintiff
filed its Complaint against Defendants on August 21, 2017,
asserting causes of action for common law indemnity,
statutory indemnity and contractual indemnity and seeking
reimbursement, attorney's fees and cost for payments made
on performance bonds issued on behalf of Peavy Construction
Company. (Doc. 1).[3] On January 2, 2018 and May 3, 2018
respectively, Defendants John Peavy and Kathleen Peavy filed
their Answers to the Complaint and Amended Complaint (Doc.
11, 12, 26, and 27). Peavy Construction did not file an
Answer and a default judgment was entered against the company
on July 11, 2018. (Doc. 25). Thereafter, Plaintiff served
Defendant John and Kathleen Peavy with Requests for
Admissions to which Defendants did not respond. (Doc. 35 at
2; see also docket sheet, generally). On November
27, 2018, Plaintiff sought to have this Court deemed its
unanswered Requests for Admission admitted, which this Court
determined was unnecessary. (Docs. 31 and 32).
On
January 24, 2019, Plaintiff filed the subject motion for
summary judgment. (Doc. 34). This Court entered an Order
setting the response times for Plaintiff's Motion
requiring Defendants to respond by February 21, 2019. (Doc.
36). Defendants did not file a response. This Court again
entered an Order allowing Defendants to respond to
Plaintiff's motion by March 8, 2019. (Doc. 37). On March
8, 2019[4], Defendants hand delivered a letter to
this Court that addresses this action but did not address the
motion for summary judgment or offer any additional facts.
Doc. 38). Plaintiff timely repl(ied on March 22, 2019. (Doc.
39).
DISCUSSION
A.
Summary Judgment Standard
Federal
Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted: “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 trial
court's function is not “to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
“The mere existence of some evidence to support the
non-moving party is not sufficient for denial of summary
judgment; there must be ‘sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party.' ” Bailey v. Allgas, Inc., 284 F.3d
1237, 1243 (11th Cir. 2002) (quoting Anderson, 477
U.S. at 249). "If the evidence is merely colorable, or
is not significantly probative, summary judgment may be
granted." Anderson, at 249-250. (internal
citations omitted).
The
basic issue before the court on a motion for summary judgment
is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” See Anderson, 477 U.S. at 251-252. The
moving party bears the burden of proving that no genuine
issue of material fact exists. O'Ferrell v. United
States, 253 F.3d 1257, 1265 (11th Cir. 2001). In
evaluating the argument of the moving party, the court must
view all evidence in the light most favorable to the
non-moving party, and resolve all reasonable doubts about the
facts in its favor. Burton v. City of Belle Glade,
178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable
minds could differ on the inferences arising from undisputed
facts, then a court should ...