Opinion
Civil Action No. 1:11-cv-00543
06-19-2013
LIBERTY MUTUAL INSURANCE COMPANY and SAFECO INSURANCE COMPANY, Plaintiff, v. CL CARSON, INC., CHRIS CARSON, KELLIE ANN CARSON, and STUART THOMAJAN, Defendants.
LANGLEY WEINSTEIN LLP Gregory M. Weinstein ATTORNEY IN CHARGE ATTORNEYS FOR PLAINTIFF LIBERTY MUTUAL INSURANCE COMPANY
PLAINTIFF 'S THIRD AMENDED COMPLAINT
Plaintiffs, Liberty Mutual Insurance Company and Safeco Insurance Company (collectively, the "Surety"), complains of Defendants, CL Carson, Inc., Chris Carson, Kellie Ann Carson, Stuart Thomajan, and respectfully states:
Parties
1. Liberty Mutual Insurance Company is a Massachusetts corporation that is authorized to do business in the State of Texas.
2. Safeco Insurance Company is a Washington corporation that is authorized to do business in the State of Texas.
3. Defendant CL Carson has been served with service of process through its registered agent, Chris Carson, at 15009 General Williamson Drive, Austin, Texas, 78734.
4. Defendant Chris Carson has been served with process at 15009 General Williamson Drive, Austin, Texas, 78734 and filed for Chapter 7 bankruptcy protection before making an appearance in this case.
5. Defendant Kellie Ann Carson has been served with process at 15009 General Williamson Drive, Austin, Texas, 78734 and filed for Chapter 7 bankruptcy protection before making an appearance in this case.
6. Defendant Stuart Thomajan is a Texas citizen and has been served with process at 826 Wagon Trail, Austin, Texas, 78758.
Statement of Jurisdiction
7. The jurisdiction of this Court over the subject matter of this action is predicated on 28 U.S.C. § 1332. The parties are diverse and the amount in controversy exceeds $75,000, exclusive of interest and cost.
Venue
8. Venue is proper in this district under 28 U.S.C. § 1391 in that (a) the Defendants reside in this district in the State of Texas, (b) a substantial part of the events or omissions giving rise to the Surety's claim occurred in this district, and (c) the Defendants are subject to personal jurisdiction in this district at the commencement of this action and there is no district in which the action may otherwise be brought.
Factual Background
9. The Surety issued performance and payment bonds on behalf of CL Carson ("CL Carson") in connection with multiple construction projects in the State of Texas. CL Carson was named as the principal on the bonds. The bonds issued by the Surety included the following (collectively, the "Bonds") for the following projects (collectively, the "Projects") and owners (collectively, the "Owners"):
+-----------------------------------------------------------------------------+ ¦BOND NO. ¦PROJECT NAME ¦OWNER ¦ +----------+----------------------------------------+-------------------------¦ ¦6347321 ¦Boone ES, Patton ES and Small MS - Card ¦Austin Independent School¦ ¦ ¦Access Security Systems Installation ¦District ¦ +----------+----------------------------------------+-------------------------¦ ¦6620989 ¦Eastside Memorial HS Renovations ¦Austin Independent School¦ ¦ ¦ ¦District ¦ +----------+----------------------------------------+-------------------------¦ +----------+----------------------------------------+-------------------------¦ ¦6652930 ¦Hill ES Renovations ¦Austin Independent School¦ ¦ ¦ ¦District ¦ +----------+----------------------------------------+-------------------------¦ ¦6652937 ¦Major Maintenance to the Brenham ¦Adjutant General's ¦ ¦ ¦Readiness Center ¦Department ¦ +----------+----------------------------------------+-------------------------¦ ¦6670211 ¦Austin Convention Center Waller Creek ¦City of Austin ¦ ¦ ¦Terrace Room Configuration ¦ ¦ +----------+----------------------------------------+-------------------------¦ ¦6652980 ¦Travis High School Renovations ¦Austin Independent School¦ ¦ ¦ ¦District ¦ +----------+----------------------------------------+-------------------------¦ ¦6670217 ¦Pleasant Hill ES and Pleasant Hill Annex¦Austin Independent School¦ ¦ ¦ ¦District ¦ +----------+----------------------------------------+-------------------------¦ ¦6670218 ¦EDC Improvements 2009 ¦Lake Travis Independent ¦ ¦ ¦ ¦School District ¦ +----------+----------------------------------------+-------------------------¦ ¦ ¦Installation of Card -Access Security ¦Austin Independent School¦ ¦6670228 ¦Systems and Door Repairs at Covington ¦District ¦ ¦ ¦and Mendez ¦ ¦ +----------+----------------------------------------+-------------------------¦ ¦ ¦Installation of Card ¦ ¦ ¦6670229 ¦ ¦Austin Independent School¦ ¦ ¦Access Security Systems and Door Repairs¦District ¦ ¦ ¦at Houston and Rodriguez ¦ ¦ +----------+----------------------------------------+-------------------------¦ ¦6670230 ¦HVAC Equipment Replacement ¦Austin Independent School¦ ¦ ¦ ¦District ¦ +----------+----------------------------------------+-------------------------¦ ¦6697507 ¦District Wide Accessability ¦Del Valle Independent ¦ ¦ ¦ ¦School District ¦ +----------+----------------------------------------+-------------------------¦ ¦6697509 ¦Wells Branch and Forest Creek Elementary¦Round Rock Independent ¦ ¦ ¦Schools Nurse Office Renovations ¦School District ¦ +----------+----------------------------------------+-------------------------¦ ¦ ¦Renovations to South Austin Community ¦Travis County Healthcare ¦ ¦6697514 ¦Care Clinic ¦District d/b/a Central ¦ ¦ ¦ ¦Health ¦ +-----------------------------------------------------------------------------+
10. On or about April 9, 2007, to induce the Surety to issue the Bonds, CL Carson, Chris Carson, and Kellie Ann Carson executed a Genera! Agreement of Indemnity for Contractors (the "Indemnity Agreement") in favor of the Surety for any and all loss or expense the Surety incurred in connection with issuing the Bonds. A true and correct copy of the Indemnity Agreement is attached hereto as Exhibit "A" and fully incorporated herein for all purposes.
11. Stuart Thomajan executed a Signature Addendum in January 2009 that made him a party to the Indemnity Agreement. CL Carson, Chris Carson, Kellie Ann Carson, and Stuart Thomajan shall be collectively referred to in this Motion as the "Indemnitors." A true and correct copy of the Signature Addendum is attached hereto as Exhibit "B" and fully incorporated herein for all purposes.
12. The paragraph of the Indemnity Agreement, entitled Indemnity to Surety, provides, in pertinent part, the following:
Undersigned agree to pay to the Surety upon demand:
1. All loss, costs and expenses of whatsoever kind and nature, including court costs, reasonable attorney fees (whether Surety at its sole option elects to employ its own attorney, or permits or requires Undersigned to make arrangements for Surety's legal representation), consultant fees, investigative costs and any other losses, costs or expenses incurred by Surety by reason of having executed any Bond, or incurred by I on account of any Default under this agreement by any of the Undersigned, or by reason of the refusal to execute any Bond. In addition, the Undersigned agree to pay to Surety interest on all disbursements made by Surety in connection with such loss, costs and expenses incurred by Surety at the maximum rate permitted by law calculated from the date of each disbursement.
2. An amount sufficient to discharge any claim made against Surety on any Bond, whether Surety will have made any payment or established any reserve thereof. Such payment to be the minimum amount of any reserve set by Surety. This sum may be used by Surety to pay such claim or demand, that sum demanded by Surety will cause irreparable harm for which Surety has no adequate remedy at law. The Undersigned confirm and acknowledge that Surety is entitled to injunctive relief for specific enforcement of the foregoing provision.
3. Any original, additional or renewal premium due for any Bond.
13. To the extent the Surety makes any payments under the Bonds, the Indemnitors further agree in the Indemnity Agreement that "an itemized statement of loss and expenses incurred by Surety, sworn to by an officer of Surety, shall be prima facie evidence of the fact and extent of the liability of Undersigned to Surety in any claim or suit by Surety against Undersigned".
14. On or about February 1, 2011, CL Carson ceased its business operations and began taking the necessary steps to close down (demobilize) the Projects. This resulted in demands being made by subcontractors and suppliers of CL Carson on the Surety for payment of unpaid balances under the payment bonds issued by the Surety on behalf of CL Carson.
15. As of the filing of this Third Amended Complaint, the Surety estimates a loss under the Bonds in excess of $400,000.
16. All conditions precedent to recovery by the Surety from the Indemnitors has occurred or has been performed.
Count I
Breach of Indemnity Agreement
17. The Surety incorporates herein by reference, as if fully set forth, the allegationscontained in paragraphs 1 through 16.
18. The Indemnitors have failed, delayed, refused, or are unable to pay bills or other indebtedness incurred in connection with the Projects for which the Bonds were issued.
19. Despite demand, the Indemnitors have failed and/or refused to pay the Surety an amount sufficient to discharge claims against the Surety from having issued the Bonds.
20. Under the Indemnity Agreement, the Indemnitors are jointly and severally liable to the Surety for all of the Surety's loss and expense, including attorney's fees, in connection with claims on the Bonds.
Count II
Common Law Indemnity
21. The Surety incorporates herein by reference, as if fully set forth, the allegations contained in paragraphs 1 through 20.
22. The Surety has been called upon as a surety to pay for CL Carson's alleged defaults under the Bonds.
23. CL Carson benefitted from the Surety's posting of the Bonds, as CL Carson could not have performed the contracts for which the Bonds were issued without the Bonds.
24. Under the theories of common law indemnity, unjust enrichment, and restitution, the Surety is entitled to payment by CL Carson for all of the Surety's loss and expense resulting from issuance of the Bonds.
Count III
Exoneration
25. The Surety incorporates herein by reference, as if fully set forth, the allegations contained in paragraphs 1 through 24.
26. The Indemnitors are jointly and severally liable to the Surety under the Indemnity Agreement for all amounts necessary to exonerate the Surety from liability asserted against it.
Count IV
Collateralization/Quia Timet
27. The Surety incorporates herein by reference, as if fully set forth, the allegations contained in paragraphs 1 through 26.
28. The Indemnitors are jointly and severally liable to the Surety under the Indemnity Agreement for any amount of collateral necessary to cover all losses of the Surety under the Bonds.
Count V
Specific Performance of Indemnity Agreement
29.The Surety incorporates herein by reference, as if fully set forth, the allegations contained in paragraphs 1 through 28.
30. The Surety requests that the Court compel the Indemnitors to provide the Surety with access to its books, records, and accounts and other documents identified in the Indemnity Agreement so that the Surety may determine any additional exposure under the Bonds.
31. The Surety also requests that the Court compel the Indemnitors to assign all its rights to payment of any contract balance, retainage, or other sum due under any construction contract bonded by the Surety pursuant to the provisions of the Indemnity Agreement.
Count VI
Recovery of Attorneys' Fees and Expenses
32. The Surety incorporates herein by reference, as if fully set forth, the allegations contained in paragraphs 1 through 31.
33. The Surety is entitled to recover its attorneys' fees and expenses from the Indemnitors under the Indemnity Agreement.
34. Additionally, and alternatively, the Indemnitors are obligated to reimburse the Surety for its reasonable attorneys' fees incurred in the bringing of this complaint under § 38.001, et seq. of the Texas Civil Practice & Remedies Code.
Request for Relief
For the foregoing reasons Plaintiff, Liberty Mutual Insurance Company, respectfully requests that CL Carson, Inc. and Stuart Thomajan be cited to appear and answer herein and, upon final trial thereof, that the Surety receive:
1. Judgment against CL Carson, Inc. and Stuart Thomajan jointly and severally, in the amount of damages incurred by the Surety;
2. Judgment against CL Carson, Inc. and Stuart Thomajan jointly and severally, for amounts necessary to exonerate the Surety from all liability asserted against it;
3. An Order of the Court compelling CL Carson, Inc. and Stuart Thomajan to perform their obligations under the Indemnity Agreement;
4. Attorneys' fees and expenses;
5. Pre-judgment and post judgment interest at the maximum permissible at law or in equity;
6. Costs of court;
7. Such other and further relief to which the Surety is justly entitled.
Respectfully submitted,
LANGLEY WEINSTEIN LLP
By: __________
Gregory M. Weinstein
ATTORNEY IN CHARGE
ATTORNEYS FOR PLAINTIFF LIBERTY
MUTUAL INSURANCE COMPANY
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