Opinion
21cv01773
01-01-2022
HUDSON INSURANCE COMPANY, a Delaware corporation, Plaintiff, v. ULYSSES ODISE PRIFTI, an Illinois citizen, Defendant.
AFFIDAVIT OF SUSAN MILLER
I, Susan Miller, pursuant to 28 U.S.C. § 1746, on oath state as follows:
1. I am a Surety Claims Specialist for Hudson Insurance Company (“Hudson”). I have personal knowledge of the handling and payment of the claims received by Hudson on this matter, as well as payment of Hudson's outside counsel's fees and expenses.
2. Hudson issued a Freight Broker Bond (FMCSA-BMC 84), with bond No. 10079757, on behalf of W3 Logistics, Inc. (“W3 Logistics”) as its principal, for the benefit of the obligee, the Federal Motor Carrier Safety Administration (the “Bond”), effective, August 31, 2019. The Bond has a penal sum of seventy-five thousand dollars ($75,000.00).
3. In consideration for the issuance of the Bond, Hudson required the execution of a General Indemnity Agreement (“GIA”). A true and correct copy of the GIA is attached as Exhibit 1. See Exhibit 1, GIA.
4. A representative of W3 Logistics executed the GIA on behalf of the entity, and Ulysses O. Prifti (“Defendant”) executed the GIA on behalf of himself personally. Both agreed to indemnify Hudson for any and all losses, including attorneys' fees, costs and expenses, incurred as a result of its issuance of the Bond.
5. The GIA requires that Defendant indemnify and exonerate Hudson from all loss and expenses in connection with any bond, including the Bond, issued by W3 Logistics, as principal. See id.
6. Specifically, by executing the GIA, Defendant agreed to “at all times indemnify, and keep indemnified, [Hudson], and hold and save it harmless from and against any and all liability, loss, costs, damages, charges and expenses of whatsoever kind or nature, including expenses, collection fees and attorneys' fees, costs of adjustment and claims handling (whether in-house or by third parties) which it may, at any time, sustain or incur by reason or in consequence of furnishing any bond or undertaking or enforcing this Agreement.” Id.
7. Defendant also expressly agreed that Hudson “shall have the right to pay, settle or compromise any claim, demand, suit or judgment upon said bond or undertaking.” Id.
8. Under the GIA, Defendant further agreed to “deposit with [Hudson] on demand an amount deemed sufficient by [Hudson] as collateral security against loss or cost on this bond or undertaking, ” the sum of which “may be used by [Hudson] to pay such claim or be held by [Hudson] as collateral security against loss or cost on this bond or undertaking.” Id.
9. The GIA also states that Hudson's loss on the Bond will be “evidenced by an affidavit signed by an authorized representative of [Hudson] setting forth such amount due, plus reasonable attorneys' fees, cost of suit and interest . . .” Id.
10. Between December 2019 and July 2020, the Federal Motor Carrier Safety Administration made 13 claims against the Bond, totaling in excess of $75,000.00 (collectively, the “Claims”). A true and accurate itemization of the Claims made against the Bond is attached as Exhibit 2. See Exhibit 2, April 16, 2020 demand letter, including Itemization of the Claims.
11. Hudson has paid approximately $84,856.40 as a result of the Claims and continues to accrue costs, expenses, and attorneys' fees. A true and accurate copy of the total loss incurred by Hudson as of January 25, 2022 is attached as Exhibit 3.
12. In response to the Claims, on April 16, 2020, Hudson issued a demand letter to Defendant notifying him of his obligations under the GIA, and expressly demanding collateral for the full amount of the Bond (“Indemnity Demand”). See Exh. 2, Demand Letter.
13. The Indemnity Demand required deposit of the collateral, pursuant to the GIA, on or before April 24, 2020, which time has since expired. See Id. at 3.
14. Defendant has not indemnified, exonerated, or held Hudson harmless from the loss is has incurred, and continues to incur, under the Bond, nor did Defendant post collateral security under the GIA.
15. Hudson has incurred legal fees and continues to incur legal fees, for which Hudson is entitled to reimbursement under the GIA. See Exh. 1.
16. The ultimate amount of Hudson's losses will continue to increase as Hudson enforces the terms of the GIA.
17. Hudson has complied with all obligations and conditions under the GIA and is not in breach of the GIA.
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3