Opinion
Civil Action No. 01-1862
August 5, 2002
Gary J. Rouse, [COR LD NTC], Koch and Rouse, L.L.C., New Orleans, LA for plaintiff.
Terese M. Bennett, [COR LD NTC], Weiss Eason, New Orleans, LA for defendant.
Before this Court is Capitol Indemnity Corporation's ("Capitol") Motion for Summany Judgment. Capitol initiated the present suit pursuant to a General Indemnity Agreement ("Agreement") with defendants Stephen R. Favorite ("Favorite"), Terese M. Bennett ("Bennett"), and Strategic Regional Facilitators, L.L.C. f/k/a Strategic Contract Management, L.L.C. ("Strategic"). Having reviewed the pleadings, affidavits and relevant law, this Court finds there are no genuine questions of material fact and GRANTS plaintiffs motion for Summary Judgment for the reasons that follow.
Background
On or about September 5, 1995, Strategic, Favorite, and Bennett executed an Agreement with Capitol wherein they agreed to:
[I]ndemnify and to keep [Capitol] indemnified against, and hold harmless from, any liability for losses and expenses of whatever kind of nature, including fees and disbursements of counsel, and against all said losses and expenses which [Capitol] may sustain or incur (I) by reason of having executed or procured the execution any bonds presently or hereafter applied for . . ."
See Capitol's LR 56.1 Statement of Material Facts as to Which There is no Genuine Issue to be Tried, p. 2 and Ex. A, Section 2.
Pursuant to the Agreement, Capitol issued bonds to Strategic on September 5, 1995 and September 22, 1995 in connection with its construction projects in Jefferson and Orleans Parishes. Thereafter, Capitol was presented with numerous claims of subcontractors and material suppliers demanding amounts due for labor and materials they had supplied to Strateaics's construction projects. As required by the Agreement, Capitol investigated and paid the claims it deemed due and payable.
See Capitol's Memorandum in Support of Motion for Summary Judgment, Exhibit B.
On June 18, 2001, Capitol filed suit claiming losses for the bonds paid in the amount of One hundred eighty-two thousand one hundred eighteen dollars and eighty-nine cents ($182,118.89). On September 28, 2001 Capitol sent defendants the following requests for admissions:
(1) Admit that the enclosed Exhibit A was a true copy of the General Indemnity Agreement,
(2) Admit that the defendants signed Exhibit A, and;
(3) Admit that by signing the General Indemnity Agreement, the defendants agreed to indemnify Capitol against liability for losses, expenses, fees and disbursements for which Capitol may sustain or incur.
Defendants did not respond to Capitol's request for admissions.
Capitol contends that it has incurred expenses of fourteen thousand sixty-five dollars and ninety-nine cents ($14,065.99) investigating, defending and resolving claims and continues to incur expenses and fees in pursuing the present action.
Analysis
Motion for Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue is material if its resolution could affect the outcome of the action." Daniels v. City of Arlington, Texas, 246 F.3d 500, 502 (5th Cir. 2001).
The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, 76 F.3d 651, 656 (5th Cir. 1996) (citation omitted). When the moving party has carried its burden under Rule 56(c), its opponent must do more that show there is some possible doubt as to the material facts. Rather, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial ." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986); Beck v. Texas State Board of Dental Examiners, 204 F.3d 629, 633 (5th Cir. 2000).
In reviewing the motion, the Court considers the record as a whole, disregarding evidence that the jury is "not required to believe." Thomas v. Great Atlantic and Pacific Tea Company, Inc., 233 F.3d 326, 329 (5th Cir. 2000). Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita at 588. Finally, the Court notes that substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). After reviewing the memoranda and facts presented, this Court finds that plaintiff has established that there are no issues of material fact related to the Agreement or the damages owed to plaintiff by defendants Analysis of the Instant Motion
Capitol contends that there is no issue of material fact because:
(1) The Agreement was undisputably agreed to by the parties;
(2) The Agreement entitles Capitol to be indemnified against losses it incurred pursuant thereto;
(3) The losses Capitol has incurred to date are One hundred ninety-six thousand one hundred eighty-four dollars and eighty-eight cents ($196,184.88); and
(4) By not timely answering Capitol's requests for admissions and by not disproving any of Capitol's evidence, Strategic has not demonstrated any issue of material fact, Defendants contend there is an issue of fact sufficient to defeat
See Capitol's Memorandum in Support of Motion for Summary Judgment, p. 4 and Exhibit B, ¶ 5 and 7.
Capitol's Motion for Summary Judgment. Specifically, Strategic argues that:
(1) There is a dispute as to all monies claimed under the Agreement because Capitol failed to provide prima facie proof of evidence of payment required under section 4 of the Indemnity Agreement;
(2) Capitol has interfered with Strategic by instructing a third-party, Hearthwood, not to pay monies owed to Strategic; and
(3) Capitol has failed to mitigate its own damages in several way's.
In pertinent part Section 4 of the Agreement states: "The vouchers or other evidence of any loss paid by the Surety under the bonds shall be taken as prima facie evidence . . . against the Undersigned . . . and assigns of the fact and extent of liability under the obligation of the Surety."
Defendants' arguments are unpersuasive. First, the Court notes that by not responding to Capitol's request for admissions, the information therein is deemed admitted. Therefore, there is no dispute that defendants signed the Agreement at issue, and by doing so, agreed to indemnify Capitol for losses and expenses incurred in connection with that Agreement.
Defendants were served with Requests for Admissions on September 28, 2001 and never responded. According to Fed.R.Civ.P. 33(b)(3), a party has 30 days to answer a request for admissions. See also Theriot v. Jefferson, 1996 WL 732533 (E.D La.) and Thomson v Tuff-n-Rumble, 200 WL 180843l(E.D. La. 2000) noting that:
. . . Rule 36(a) gives a party served with requests for admissions thirty days in which to respond. If the party to whom the request is directed does not answer or object to the admissions within that time period, the matter is deemed admitted. Rule 36(b) adds that: "[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." The conclusive effect of Rule 36(b) "applies equally to those admissions made affirmatively and those established by default, even if the matters admitted relate to material facts that defeat a party's claim." American Auto. Ass'n v. AAA Legal Clinic of Jefferson, 930 F.2d 1117, 1120 (5th Cir. 1991). (Citations omitted).
In addition, this Court must enforce the plain language of the Agreement. The case of National American Ins. Co. V. Contours Unlimited, Inc., 1998 WL 252141 (E.D.La.), is instructive:
Under Louisiana law, the Court must read a contract for its plain meaning. La.C.C. art .2047; Lloyds, 101 F.3d at 429. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation maybe made in search of the parties' intent." La. C.C. art 2046. When the terms of a contract are unambiguous and lead to no absurd consequences, the Court interprets them as a matter of law. Liberty Mutual Insurance Company v. Pine Bluff Sand Gravel Company, Inc., 89 F.3d 243, 246 (5th Cir. 1996). A contract is ambiguous when it is uncertain as to the parties' intentions and susceptible to more than one reasonable meaning under the circumstances and after applying established rules of construction. Lloyds of London v. Transcontinental Gas Pipe Line Corp., 101 F.3d 425, 429 (5th Cir. 1996). "Under Louisiana law, a contract is ambiguous when it is uncertain as to the parties' intentions and susceptible to more than one reasonable meaning under the circumstances and after applying established rules of construction." Lloyds, 101 F.3d at 429. However, ambiguity in a contract is to be construed against the drafter. Zapata Marine Services, Inc. v. O/Y Finn Lines, Ltd., 571 F.2d 208, 209 (5th Cir. 1978). Nonetheless, where a contract is unambiguous, no further inquiry may be made as to the parties' intent. Lloyds, 101 F.3d 429.
In the case at bar, the Court has reviewed the General Indemnity Agreement and finds it clear and unambiguous. Under its plain language, Strategic agreed to indemnify Capitol for any liability for losses and expenses of whatever kind or nature, including fees and disbursements of counsel which Capitol may sustain or incur. Further, Section 4 of the Agreement permits "vouchers or other evidence" to be prima facie proof of any amount owed.
The Court accepts the sworn affidavit by one of Capitol's employees, Scott A. Raybuck, Recovery Specialist for Capitol, who represented that the total expenses Capitol has incurred in this matter is $196,184.88. Finally, the Court notes that defendants have not provided any evidence, by affidavit or otherwise, to suggest that there is a genuine issue of material fact.
See Affidavit of Scott A. Raybuck, Recovery Specialist for Capitol, which is attached to Capitol's Memorandum in Support of Motion for Summary Judgment as Exhibit B.
Accordingly,
IT IS ORDERED that plaintiffs Motion for Summary Judgment is GRANTED.