North American Specialty Insurance Company v. Masonry Builder's of KY, Inc. et al

2018 | Cited 0 times | E.D. Kentucky | November 19, 2018

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY

SOUTHERN DIVISION

PIKEVILLE NORTH AMERICAN SPECIALTY INSURANCE COMPANY, Plaintiff, v.

1 et al.,

Defendants.

No. 7:17-CV-159-REW-EBA

OPINION AND ORDER

*** *** *** *** , moving for summary judgment, seeks indemnification from owners/guarantors ). DE #16. Having thoroughly analyzed the full briefing, for the reasons that follow, the Court GRANTS the motion on the terms of this Order.

Masonry needed bonding capacity to qualify for a particular contract. NAS signed on as surety, facilitating the project, but Masonry (and its individual owners) induced NAS by entry of much authority with respect to and protection regarding any underlying bond claim. Masonry and the Mitchells Agreement puts them squarely on the hook for

1 The Court uses the style name. The Bond and General Indemnity Agreement have no apostrophe in the name Masonry Builders. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 1 of 20 - Page ID#: 203

I. FACTUAL AND PROCEDURAL BACKGROUND In May 2013, NAS, a licensed surety, issued payment and performance bond #2171269 Morgan County Real Properties I for construction of the Morgan County Wellness and Youth Center (the . DE #1 ¶¶ 2, 8; see DE #1-1 (Bond). Payment bonds serve to ensure that subcontractors and vendors have recourse if the bonded contractor fails to pay them for project goods or services; performance bonds guarantee payment for the balance necessary to complete the project, should the contractor fail to do so. Sureties often logically condition bonding upon execution of an agreement indemnifying the surety s required to obtain the Bond, Masonry and personal indemnitors Tim and Rontona Mitchell executed a General Indemnity agreeing to indemnify and hold NAS harmless the Bond. DE #1 ¶ 9; see DE #1-2 (GIA) ¶ 2. 2

Masonry won the contract for brick work on the Youth Center. The defense tendered various unauthenticated contract documents suggesting that an unauthorized change by the Owner inserted an alternative brick product into the mix. That alternative, supplied by Hinkle Block and

have paid for the difference in materials and costs, but Hinkle looked to Masonry. When Masonry refused payment, Hinkle submitted to NAS a claim for $66, #1 ¶ 11. NAS initially refused payment on the claim, so Hinkle brought suit against Masonry,

(which the GIA includes in its d see DE #1-2 at 1). DE #1 ¶ 12. See Hinkle

2 The Bond is organized by section, while the GIA is organized by paragraph. The Court references the subparts of each document in accordance with its given structure. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 2 of 20 - Page ID#: 204

, Morgan County Civil Action No. 15-CI-00141; DE #18-3 (Hinkle Complaint).

The Hinkle litigation involved various claims, including a breach of contract claim against Masonry, a claim for breach of the Bond against NAS and Washington, and bad faith claims against NAS and Washington. DE #18-3 ¶¶ 15 38. Masonry to settle the Hinkle claims, which Masonry denies, and the litigation persisted for over

two years. DE #1 ¶ 14; DE #7 ¶ 11. In July 2017, Hinkle action and paid Hinkle $64,958.25 to

resolve all claims against NAS, Masonry (without prejudice), and Washington. DE #1 ¶ 15. Masonry adds that this settlement resulted in bad faith claim dismissal with prejudice. The order dismissed the contract claim against Masonry without prejudice, and NAS, as surety, took an assignment of that claim. See DE #18-5 (Agreed Order of Dismissal).

Then, NAS sought reimbursement from Masonry for all expenses incurred in defending and settling the Hinkle litigation. ed payment from Masonry via letter. DE #1 ¶¶ 18 20; DE ##1-3,

1-4. Masonry steadfastly refused payment, and NAS initiated this action to recover the requested sums. NAS asserts three counts against Masonry: (1) breach of the GIA; (2) breach of the implied contractual duty of good faith and fair dealing; and (3) common law indemnity for the sum paid to Hinkle, $64,958.25, as well as any expenses and attorney fees incurred in litigating the Hinkle case. DE #1 ¶¶ 22 38. NAS additionally requests reimbursement for the costs of bringing this action to enforce the GIA, including reasonable attorney fees. Id. at 8.

NAS moves for summary judgment, seeking $105,444.92 in damages, plus ongoing legal fees. DE #16 at 1, 10. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 3 of 20 - Page ID#: 205 statement of pay designates as DE #1-2 ¶ 9; see DE #16-1 (Affidavit of Bryan Seifert). Defendants responded to the summary

judgment motion (DE #18), and NAS replied (DE #22).

The Court makes certain observations about the record. First, NAS does not discuss the merits of Counts II and III, so the Court does not address those claims. Second, Masonry tendered various documents in response but authenticated none. Further, Masonry offered no affidavit to rejoin the factual claims of the Seifert Affidavit. The Court can process only what the record properly contains and so goes forth to resolve the motion.

II. ANALYSIS A. Summary Judgment Standard

Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and a). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). The movant may satisfy this

burden by demonstrating reviewing the record as a whole a rational factfinder could not find for the nonmoving party Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998). In evaluating a summary judgment motion Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 4 of 20 - Page ID#: 206

Cir. 2005) most favorable to the non-moving party id. (citing Matsushita, 106 S. Ct. at 1356).

If the moving party meets its burden, the burden then shifts to the nonmoving party to Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2253 (1986); Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita, 106 S. Ct. at 1356. The nonmovant has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). Summary judgment is particularly appropriate in a contract action, if the questions are primarily legal rather than factual, and Terry Barr Sales Agency, Inc. v. All-Lock Co., Inc., 96 F.3d 174, 179 (6th

Cir. 1996). Where the contract language is ambiguous, however, disputed fact issues as to intent preclude summary judgment. Id.; see also Parrett v. American Ship Building Co., 990 F.2d 854, 858 (6th Cir. 1993).

B. Validity and Enforceability of the GIA 3

Q including Frear v. P.T.A. Indus., Inc., 103 S.W.3d 99, 105 (Ky. 2003) (quoting First Commonwealth Bank

3 e substantive Rupert v. Daggett, 695 F.3d 417, 423 (6th Cir. 2012) (citing City of Cleveland v. Ameriquest Mortg. Sec., Inc., 615 F.3d 496, 502 (6th Cir. 2010)); see also Kepley v. Lanz In diversity cases, a federal court must rely upon the substantive law of the forum state parties assume Kentucky law applies to the substantive contractual dispute at issue. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 5 of 20 - Page ID#: 207

of Prestonsburg v. West, 55 S.W.3d 829, 835 (Ky. Ct. App. 2000)); accord Zetter v. Griffith Aviation, Inc., 435 F. Supp. 2d 622, 628 29 (E.D. Ky. 2006). Ky. Shakespeare Festival, Inc. v.

Dunaway, 490 S.W.3d 691, 694 (Ky. 2016). n the absence of ambiguity, a written instrument must be enforced strictly according to its terms Wehr Constructors, Inc. v. Assurance Co. of Am., 384 S.W.3d 680, 687 (Ky. 2012) (quoting Frear, 103 S.W.3d at 106). A contract of indemnity is an obligation or duty requiring a promisor . . . to make good any loss or damage which another has incurred while acting at the request or for the benefit of the Intercargo Ins. Co. v. B.W. Farrell, Inc., 89 S.W.3d 422, 426 (Ky. Ct. App. 2002). An indemnification agreement accompanying a performance or payment bond in the construction industry Id. In Kentucky, [t]he right of an indemnitee to recover of the indemnitor under a contract of indemnity according to the terms of such a contract is well recognized. U.S. Fid. & Guar. Co. v. Napier Elec. & Constr. Co., 571 S.W.2d 644, 646 (Ky. Ct. App. 1978) uch a contract is not against public policy and will be enforced if the indemnitee has suffered loss thereunder and has complied with its terms. Id.; accord Thompson v. The Budd Co., 199 F.3d 799, 807 (6th Cir. 1999) ( liability is determined by the provisions of the indemnity

Defendants do not contend that the GIA is ambiguous, or that its terms are subject to different interpretations. Indeed, the Court finds that the relevant, operative language is not ambiguous. See Ky. Shakespeare Festival, 490 S.W.3d at 694 95. To the extent Defendants contest the validity of the GIA itself, they argue that: (1) as a general matter of public policy, ; and (2 Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 6 of 20 - Page ID#: 208 wrongful conduct The argument hinges on the fact that Hinkle sued

both Masonry and the sureties. The claims against NAS included an extra-contractual theory. Thus, per Masonry, NAS spent money and incurred loss for its own alleged improper conduct relative to claim adjustment.

a. The GIA Does Not Violate Public Policy

Defendants offer no real support for their first proposition, which is contrary to Kentucky precedent. Kentucky law does not disfavor, nor does it discriminate against, indemnity agreements. See U.S. Fid. & Guar. Co., 571 S.W.2d at 646; see also Enerfab, Inc. v. Ky. Power Co., 433 S.W.3d act construction apply U.S. Fid. & Gaur. Co. court that ; accord , 57 F. Supp. 281, 282 (W.D. Ky. The right of an indemnitee to recover of the indemnitor under a contract of indemnity according to the terms of such a contract is well recognized. Such a contract is not against public policy and will be enforced if the indemnitee has suffered loss thereunder and has complied with its terms. Defendants proffer no authority to cast doubt upon this longstanding precedent, and consequently, the Court disposes of to the GIA.

The central purpose of the GIA is protection of include:

The Indemnitors shall exonerate, hold harmless and indemnify the Surety from and against any and all Loss. For the purpose of this Agreement, Loss means any liability, loss, costs, damages, attorneys' fees, consultants' fees, and other expenses, including interest, which the Surety may sustain or incur by reason of, or in consequence of, the execution of the Bonds (or any renewals, continuations or extensions). Loss includes but is not limited to the. following: (a) sums paid or Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 7 of 20 - Page ID#: 209

liabilities incurred in the settlement of claims; (b) expenses paid or incurred in connection with the investigation of any claims; (c) sums paid in attempting to procure a release from liability; (d) expenses paid or incurred in the prosecution or defense of any suits; (e) any judgments under the Bonds; (f) expenses paid or incurred in enforcing the terms of this Agreement; (g) sums or, expenses paid or liabilities incurred in the performance of any Bonded contract or related obligation; and (h) expenses paid in recovering or attempting to recover losses or expenses paid or incurred. Loss expressly includes attorney fees incurred in defending claims . . . [and] seeking recovery under the terms of this Agreement from the Indemnitors[.] DE #1-2 ¶ 2.

The Surety shall have the right to decide and determine in its sole discretion whether any claim, liability, suit or judgment made or brought against the Surety or any of the Indemnitors on any Bond shall or shall not be paid, compromised, resisted, defended, tried or appealed, and the Surety's decision shall be final, binding and conclusive upon the Indemnitors. The Surety shall be entitled to immediate reimbursement for any and all Loss under this Agreement . . . An itemized statement of payments made by the Surety sworn to by an officer of the Surety shall be prima facie evidence of the liability of the Indemnitors to reimburse the Surety. Id. at ¶ 9. NAS resolved the Hinkle claim and now seeks to recover what it paid and other related Loss from the GIA Indemnitors.

b. The GIA Is Not an Exculpatory Agreement

Defendants creatively (if unpersuasively) liken the GIA to the preinjury release invalidated in Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). An exculpatory contract is one that seeks to release the drafter from liability for his or her own wrongful conduct An exculpatory contract for exemption from future liability for negligence, whether ordinary or gross, is not invalid per se. Hargis However, such contracts are disfavored and are strictly construed against the parties relying upon them. Id. (citing City of Hazard Mun. Hous. Comm'n v. Hinch, 411 S.W.2d 686, 689 (Ky. 1967)). The exculpator must be so clear and Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 8 of 20 - Page ID#: 210

understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable. Id. (citation omitted). 4

The Hargis court analyzed the validity of a preinjury release purporting to exonerate a lumber mill employer for its own future negligence. The at-issue release, between the mill and an independent contractor it hired, attempted to absolve personal injuries while working negligence. Id. The court

invalidated the exculpatory d[id] not explicitly release [the mill] from liability for personal injury caused by [its] own

conduct Id. The court reasoned that an ordinarily prudent party would not have realized he was contracting away his right to hold the mill accountable for its own negligent conduct. Id.

NAS fairly asserts that the circumstances and facts of Hargis, involving a preinjury release purporting to exonerate the drafter from personal injury liability for its own future negligence, are inapposite. DE #22 at 2. Defendants do not allege that NAS was negligent toward them in this matter or the underlying Hinkle litigation, or that NAS ever sought to absolve itself of liability for future negligence. , analogizing the Hargis attempt to avoid liability for its own negligent acts via preinjury release with avoid liability for its own bad faith conduct via the GIA. 5

See DE #18 at 5 6. Defendants argue

4 Cf. Budd Co., 199 F.3d at 808 09 (discussing Fosson v. Ashland Oil & Ref. Co., 309 S.W.2d 176, 178 (Ky. 1958) and finding, based on the Fosson negligence).

5 Defendants contend that NAS seeks indemnification for not only its own wrongful conduct, but against whom Hinkle also lodged a bad is no contract contention as foreclosed by the plain language of the GIA, which denominates Washington ns, successors, assigns, co-sureties, or Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 9 of 20 - Page ID#: 211

seek indemnity for its settlement of the bad faith claims against it in the Hinkle litigation is functionally an attempt to exculpate itself for its own wrongdoing, and, as such, per Hargis the language of the GIA must unmistakably state that NAS would be absolved of liability for its own bad faith for the GIA to be enforceable in that regard. Id. Defendants contend that the language of the GIA does not unequivocally exculpate NAS for its own bad faith conduct, and accordingly, it is invalid and unenforceable to that extent.

Defendants do not pinpoint which provisions of the GIA allegedly contemplate exonerating NAS for its own wrongdoing, and the Court notes the only two potential candidates: ¶¶ 2 and 9. See DE #1-2. Paragraph 2 essentially provides that Defendants will indemnify NAS for any and all losses incurred in investigating and settling claims related to the Bond.

The broad scope of the language in this provision encompasses indemnification for all claims resulting in loss to NAS, including those against NAS itself, provided the loss was by reason of, or execution of the Bond. Id. at ¶ 2. Paragraph 9 reinforces this broad reading, stating that

decide and determine in its sole discretion whether any claim, liability, suit, or judgment made or brought against the Surety or any of the Indemnitors on any Bond shall or Id. at ¶ 9 (emphasis added). Clearly, reading these provisions together, the GIA contemplates Masonry categorically indemnifying NAS for claims brought against NAS itself, provided they arise out of the Bond.

U that the GIA is exculpatory is the supposition that the filing of a bad faith claim against a bonding surety evinces some level of culpability or wrongdoing

-2 at 1. Accordingly, for all practical purposes in this case and in the underlying Hinkle litigation, the Court treats NAS and Washington International as a singular entity. The state complaint lacked distinct substance as to Washington. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 10 of 20 - Page ID#: 212

on the part of the surety. See, e.g., DE #18 at 6 (noting the absence of language in the GIA wrongful conduct . . . as would 6

This assumption is required, if following the logic of the theory, to bring the GIA within Hargis and trigger the attendant heightened clarity requirements that Defendants argue apply; otherwise, NAS would not have any wrongdoing from which to seek exculpation.

The suggested analogy is untenable in view of posture on behalf of the principal and the plain language of the Bond itself. duty to Defendants, as bonding surety, necessarily entailed refusing (at least pending evaluation) a claim against the Bond, if NAS reasonably believed an adequate defense existed. See, e.g., Niagara Fire Ins. Co. v. Bryan & Hewgley, Inc., 195 F.2d 154, 156 (6th Cir. 1952) (quoting South. Sur. Co. v. Motlow, 61 F.2d 464, 468 South. Sur. Co., 61 F.2d at 468

was reasonably justified in asserting its defense). It is unsurprising that Hinkle disputed the adequacy of defense and deemed the refusal to pay unreasonable, giving rise to the bad faith claims. See, e.g., DE #18-3 at ¶ 34 (in its complaint, Hinkle alleged lacks a

6 The Court observes that the notion of ascribing wrongdoing to NAS as a result of the bad faith claims in the Hinkle litigation is at odds with indemnity claim, for example, Defendants argue unreasonableness in allegedly prematurely settling the Hinkle claims, despite what Defendants deemed an adequate defense. DE #18 at 8. The bad faith claims against NAS and Washington International in the Hinkle action, however, focused on the obverse See DE #18-3 at ¶¶ 26 38. It is difficult to reconcil argument that NAS also acted improperly by not further refusing payment to Hinkle. Defendants

wanted NAS to steadfastly refuse payment to Hinkle, see DE #18 at 8, but faults them for the action Hinkle unsurprisingly took in response, see id. at 5. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 11 of 20 - Page ID#: 213

Indeed, Defendants do not dispute see DE #18 at 8 in fact, they contend that the defense still applies. See id. Hinkle] litigation, in fact, continues

Furthermore, the plain language of the payment Bond permits NAS to dispute or refuse payment on a claim where there exists a basis for refusal. 7

The Court cannot fault NAS for following the terms of the Bond. Unlike Hargis, a personal injury context involving important public policy limitations, Kentucky suretyship law offers longstanding protection to the freedom of contract and predictability interests in the construction and insurance markets. The owner requires the solvent surety to be in the mix, and the contractor promises broad indemnity to induce #1-2 at 1 Contractor and the Surety . . . bind themselves . . . to the Owner to pay for labor, materials and

#1-1 at § 1.

The Hinkle claim may indeed have been or be debatable. Masonry posits that the new brick may have been an undocumented bid alternative and contends the Owner should have paid the difference. NAS let that defense play out over two years of litigation, but ultimately decided to resolve the Hinkle claim via mediation. As the Agreed Order shows, Masonry was in the loop on

7 See DE #1- 6 When the claimant satisfies the conditions of Section 4 [outlining the method for making a claim against the Bond], the Surety : § 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed, and the basis for challenging any amounts that are disputed added). Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 12 of 20 - Page ID#: 214

this development. It may disagree on the merits, but the Bond and GIA vest significant discretion in NAS on how to fulfill its Bond obligations. Again, to quote the instrument itself:

The Surety shall have the right to decide and determine in its sole discretion whether any claim, liability, suit or judgment made or brought against any the Surety or any of the Indemnitors on any Bond shall or shall not be paid, compromised be final, binding and conclusive upon the Indemnitors.

DE #1-2 ¶ 9 (emphasis added) would have sole discretion in adjusting any Bond claim.

discretion to then erode the strength of an underlying indemnity agreement. This is a world away

from the Hargis notion of pre-conduct tort exoneration. The Court rejects the parallel. Instead, Kentucky law clearly endorses indemnity agreements such as the GIA as consistent with public policy. Further, Kentucky enforces such agreements as written. Finally, potential principal defenses do not thwart or modify operation of an indemnity agreement. See Frontier Ins. Co. in Rehab. v. MC Mgmt., Inc., No. 3:06-CV-597-H, 2009 WL 541301, at *9 10 (W.D. Ky. Mar. 4, 2009) for losses paid on payment bond claims if the owner of the project defaulted in its obligations to

aff'd sub nom. Frontier Ins. Co. in Rehab. v. RLM Const. Co., 468 F. App'x 506 (6th Cir. 2012). The GIA here does not purport to release NAS from prospective fault. Rather, it creates an ordered process for bond-claim resolution, one in which Masonry voluntarily contracted away the NAS role and then balk when that role operates as the documents permit. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 13 of 20 - Page ID#: 215

C.

Having concluded that the Bond and GIA are unambiguous, valid, and enforceable, the duty to indemnify NAS under the GIA. The of the Surety shall be prima facie evidence of the liability of the Indemnitors to reimburse the

-2 at ¶ 9. NAS submitted the affidavit of Bryan Seifert, Vice President of Swiss Re Corporate Solutions, parent corporation of Westport Insurance Corporation, of which NAS is a specialty surety subsidiary. DE #16-1 at ¶ 2. That filing also contains a listing of payments purportedly made in consequen Id. at 20 21. Pursuant to the may qualify as prima facie evidence See, e.g., Travelers Cas. and Sur. Co. of Am. v. Ream, No. 07-171-DLB, 2009 WL 2969897, at *6

(E.D. Ky. Sept. 9, 2009); U. S. Fid. & Guar. Co., indemnity agreement that vouchers or other evidence of payments or an itemized statement of

payments sworn to by an officer of the surety shall be prima facie evidence of the fact and extent of the liability of the indemnitor to the surety, and provisions that the indemnitor shall be liable for all liabilities, losses and expenses incurred by the surety and all sums paid by the surety in good faith under the belief that surety was or might be liable for said payments or that said payments are necessary and advisable to protect the surety's right or to avoid and lessen the surety's liability id. (enforcing full indemnity However, the propriety of the amounts claimed, and accordingly the ultimate extent complex consideration. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 14 of 20 - Page ID#: 216

1. The Hinkle Settlement Was Reasonable and Reached in Good Faith

The itemized statement identifies a $64,958.25 payment to Hinkle with the accompanying , ostensibly representing the settlement value. 8

DE #16-1 at 21. In defense , Defendants assert that there is, at minimum, a genuine dispute over the reasonableness of the amount. DE #18 at 8. If the surety or the indemnitee has the legal right to adjust or settle the claim . . . it is only necessary that such an adjustment or settlement be a reasonable one and made in good faith. Transamerica Ins. Co. v. Bloomfield, 401 F.2d 357, 362 63 (6th Cir. 1968) (quoting Nat l Sur. Corp. v. Peoples Milling Co., 57 F. Supp. 281, 282 83 (W.D. Ky. 1944). Provisions in indemnity agreements permitting sureties to settle claims on behalf of themselves and the contractors they have bonded, 9

and stating that evidence of the propriety thereof, have been upheld as not against public policy and enforced by

Id. at 362. NAS is entitled to indemnity under the GIA. The record establishes that Hinkle made a claim for materials used in the Project. Response See DE #18 at 2. There may have been a colorable defense related to bid and contract particulars, but NAS, following two years of this. The GIA vests discretion in NAS on bond adjustment, and NAS rationally determined to pay

8 This number is consistent with the amount NAS provides in its Complaint. DE #1 at ¶¶ 15, 24, and 38. The amount is also consistent with the sum requested under the Bond by Hinkle in the underlying litigation. DE #18- 9 Again, t ght to decide and determine in its sole discretion whether any claim, liability, suit or judgment brought against the Surety or any of the Indemnitors on any Bond shall or shall not be paid[.]. DE #1-2 ¶ 9. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 15 of 20 - Page ID#: 217

the claim and terminate the bond liability. The Bond required payment for materials used in the construction contract.

A potential defense related to owner default does not affect a claim and does not impact the underlying indemnity claim, as long as the surety complied with the

relevant contracts. See Frontier, 2009 WL 541301, at *9 (collecting cases concluding that a asserted indemnification from the principal). Here, Masonry points to nothing that would be contractual noncompliance by NAS. To the extent it seeks to label the Hinkle resolution as too expensive or the invested expenses excessive, Masonry contracted away those arguments when it entered a GIA of such breadth. It gave NAS discretion to respond to and resolve Bond matters. Further, the GIA specifically placed claims

against NAS, resulting from the Bond, within the indemnity umbrella and duty. 10

For all of these reasons, and perceiving no legal impediment to operation of the GIA, the Court enforces it according to the plain terms of the contract. NAS is entitled to indemnity for the $64,958.25 Hinkle Bond claim.

2. Defendants Are Liable for Reasonable and Necessary a. Fees Incurred in the Hinkle Litigation

NAS seeks indemnification for attorney fees incurred in litigating the Hinkle claims. DE #1 at ¶ 38. The GIA provides NAS with the right to be reimbursed for attorney fees incurred in litigating claims against the Bond. DE #1-2 at ¶ 2. Accordingly, pursuant to the valid and enforceable GIA, NAS may collect attorney fees quence of the

10 Again, Washington International is a named GIA - argument related to that affiliate. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 16 of 20 - Page ID#: 218

from Defendants. In support of its request, and as required by the GIA (id. at ¶ 9), NAS Affidavit, accompanied by a listing of payments made. DE #16-1. The statement lists nineteen entries payable to Frost Brown Todd LLC, with the notation following each entry. Id. at 20 21. The net claim is for $72,444.92.

In Kentucky, attorney fees typically are recoverable in an indemnity action only if they are reasonable and were necessarily incurred. See Middlesboro Home Tel. Co. v. Louisville & N.R. Co., 284 S.W. 104, 108 (Ky. Ct. App. 1926); see also Chittum v. Abell, 485 S.W.2d 231, 237 (Ky. Ct. App. 19 ttorney fees reasonably incurred in the defense of the claim for damages may in appropriate circumstances be allowed in the judgment of indemnity for the damages . Determining the reasonableness of reserved for the Court, 11

based on a variety of factors, including the: (1) amount and character of the services; (2) labor and time involved; (3) nature and importance of the litigation; (3) responsibility imposed; (4) amount of money involved in the controversy; (5) skill and experience necessary to perform the services; (6) professional standing of the attorney(s); and (7) the result ultimately achieved. See Mo-Jack Dist., LLC v. Tamarak Snacks, LLC, 476 S.W.3d 900, 910 (Ky. Ct. App. 2015) (citing Axton v. Vance, 269 S.W. 534, 536 37 (Ky. 1925)).

Here, of course, the GIA broadly vests discretion in NAS, as this decision has noted #22 at 4. What NAS tendered is a table of payments made, backed up by

11 See Capitol Cadillac Olds, Inc. v. Roberts generally in the best position to consider all relevant factors and require proof of reasonableness Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 17 of 20 - Page ID#: 219

the Seifert Affidavit. DE #16- Id.

¶ 12. 12

payments made . . . shall be prima facie DE #1-2 ¶ 9.

The Court finds this record insufficient to support a judgment on the precise amount owed. ting of undifferentiated totals. It has no pre-compromise demand letter seeking $47,000. See DE #18- [Masonry and the The Court is unable to discern the particular reason or purpose behind

each payment and whether each involves only attorney fees or is another potential The payments began only in 2017, well after the Hinkle suit commenced. This perhaps conflicts

with the letter claim of $47,000 from as early as October of 2016. With due deference to contract breadth, the Court simply cannot adjudge payment propriety with this black box description. To be sure, NAS is entitled to and the Indemnitors must pay the full recoverable Loss. Getting to that number will require additional proof. 13

12 See U.S. Fidelity & Guaranty Co., 571 S.W.2d at 646 (stating that, where an indemnity indemnitor

13 The Indemnitors, under an agreement such as the GIA, face a hard calculus in proceeding relative to the Bond obligations. In opposing Hinkle, Masonry always was potentially on the hook not only to Hinkle but also to NAS for Bond-related Loss. This is part of the principal-surety dynamic under documents of this type. Thus, Masonry and the other Indemnitors can continue to fight, but the GIA puts most of the battle load onto the Indemnitors. That is the deal they signed up for. The enforcement as is. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 18 of 20 - Page ID#: 220

The same analysis applies to the claim for expenses related to GIA enforcement. NAS is entitled to recover what it reasonably spends to enforce the GIA. The Indemnitors so agreed, DE #1-2 at ¶ 2(h); see Travelers, 2009 WL 2969897, at *7 n.6 (citing United

States v. Hardy, 916 F. Supp. 1385, 1391 (W.D. Ky. 1996)) (discussing the Hardy of attorney fees under similar circumstances and pursuant to a broad indemnification agreement

for any and all loss, damage, injury . . . resulting directly or indirectly ); see also Lyndon Prop. Ins. Co. v. Overby Grain Farms, Inc., No. 5:06-CV-80, 2007 WL 1728263, at *3 (W.D. Ky. 2007) (awarding to which the Company shall at any time sustain or incur, for or by reason or in consequence of the Company having become surety on any such bond(s) The Court simply defers the precise award for precise proof.

III. CONCLUSION Based on the foregoing reasoning, the Court ORDERS as follows: 1. The Court GRANTS ) on Count I, to

the extent NAS seeks a determination as to liability; 2. The Court GRANTS DE #16 insofar as it seeks indemnification for the $64,958.25

Hinkle settlement amount; 3. The Court GRANTS DE #16, in part, to the extent NAS seeks a determination that

Defendants are liable for attorney fees, but DENIES DE #16, to the extent NAS seeks a determination as a matter of law regarding the amount of fees owed; and 4. The Court DENIES DE #16 as to Counts II and III, which the motion does not discuss. This the 19th day of November, 2018. Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 19 of 20 - Page ID#: 221 Case: 7:17-cv-00159-REW-EBA Doc #: 26 Filed: 11/19/18 Page: 20 of 20 - Page ID#: 222

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