Opinion
CIVIL ACTION NO. 02-2629, SECTION "L" (2).
July 18, 2003.
ORDER REASONS
Before the Court is plaintiff United States Fidelity Guaranty Company's ("USFG") Motion for Summary Judgment against defendants Primelink Systems, Inc. ("Primelink"), Bobbie R. Clemons, Nancy D. Clemons, and John R. Wade. For the following reasons, the Court GRANTS the plaintiff's Motion for Summary Judgment.
I. FACTS
The present motion was set for hearing before this Court without oral argument on June 25, 2003. To date, no opposition has been received. According to this Court's Local Rule 56.2, an opposing party's failure to controvert the movant's statement of uncontested material facts shall result in those facts being deemed admitted. Therefore, the plaintiff's statement of uncontested material facts shall be deemed admitted and shall form the basis of the Court's discussion of the facts of this case.
Plaintiff USFG is a surety company in the business of issuing payment and performance bonds for select contractors. Defendant Primelink is such a contractor engaged in the construction business. Defendants Bobbie Clemons, Nancy Clemons, and Jack Wade are the officers and/or directors of Primelink. Primelink requested that USFG issue payment and performance bonds for work they were undertaking. As a pre-condition to the issuance of those bonds, USFG requested that the defendants execute an indemnity agreement. On October 9, 2002, Primelink, as principal and indemnitor, and the other defendants, individually and as indemnitors, executed a General Agreement of Indemnity ("GAI"), which provided that the defendants would pay to the surety "such sum as may be necessary to exonerate and hold it harmless with respect to any liability which may be asserted against the SURETY as soon as liability exists or is asserted against the SURETY." See Copy of GAI, attached as Exhibit A to Plaintiff's Motion for Summary Judgment. The amounts included any liability, losses, costs, damages, and attorney's fees, which USFG might sustain. See id.
USFG, in reliance on the GAI, issued payment and performance bonds with Primelink as principal and Adesta Communications, Inc. ("Adesta") as obligee for projects between Adesta and the Colorado Department of Transportation. Primelink failed to pay its subcontractor Waste Energy Technology, LLC ("WET"), which promptly made a claim against USFG for payment pursuant to the bonds. USFG thereafter settled claims against WET and paid a total of $2,683,647.00 to the company. Plaintiff thereafter brought this lawsuit against the defendants seeking indemnification, attorneys' fees, and costs according to the terms of the GAI. USFG did recover $495,776.90 from XL Specialty Insurance Company, Adesta's insurer, reducing USFG's net loss to $2,187,870. 10. Furthermore, USFG claims attorney's fees in the amount of $36,863.89 incurred in the satisfaction of its obligations under the bond. Plaintiff now moves for summary judgment in the amount of $2,224,733.99, claiming that the defendants owe this amount in satisfaction of its indemnity obligations under the GAI.
II. ANALYSIS
A district court can grant a motion for summary judgment only when 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322 — 24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249 — 50 (citations omitted).
As noted above, defendants have not opposed this motion for summary judgment. Having reviewed the plaintiff's motion, the facts of the case, and the applicable law, the Court finds that the plaintiff is entitled to judgment as a matter of law against the defendants in the amount of $2,224,733.99 in enforcement of the defendants' indemnity obligations.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the plaintiff's Motion for Summary Judgment be GRANTED. Accordingly, judgment shall be entered in favor of plaintiff USFG and against defendants Primelink, Bobbie R. Clemons, Nancy D. Clemons, and John R. Wade in the amount of $2,224,733.99.