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Developers Surety and Indemnity Co. v. Martin

July 14, 2006

DEVELOPERS SURETY AND INDEMNITY COMPANY, PLAINTIFF,
v.
DALE K. MARTIN, DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/GUYTON)

MEMORANDUM OPINION

This civil action is before the Court on the Motion of Plaintiff for Summary Judgment [Doc. 7]. Plaintiff Developers Surety and Indemnity Company ("Developers") contends that it is entitled to judgment as a matter of law based on the terms of a contractual indemnity agreement. Plaintiff has filed a memorandum [Doc. 8] and the affidavit of Sean C. Wozney [Doc. 9] with exhibits in support of the motion for summary judgment. Defendant Dale C. Martin has filed a response [Doc. 18], an affidavit with exhibits [Doc. 19], a memorandum of facts [Doc. 20], and a memorandum of law [Doc. 21] in opposition to the pending motion. Plaintiff has filed a reply brief in support of summary judgment [Doc. 24], along with the affidavit of Conrad Wozney [Doc. 25-2], the supplemental affidavit of Sean C. Wozney [Doc. 25-3] with exhibits, and the affidavit of Jonas Smelcer [Doc. 28]. The defendant requested and was granted leave to file a supplemental brief in opposition to the motion for summary judgment but he has not done so. Accordingly, the motion is ripe for determination.

The Court has carefully reviewed the pending motion and related pleadings in light of the entire record and controlling law. For the reasons set forth herein, the plaintiff's motion for summary judgment will be GRANTED.

I. Facts

This case was filed September 28, 2005, by plaintiff Developers against Dale K. Martin on the basis of diversity jurisdiction. Developers asserts a claim of breach of contract based on an indemnity agreement executed by defendant Martin, individually, Daniel Stetson, individually, and Stetson & Associates, Inc. and Deer Path Vacations, L.P., as principals. A copy of the indemnity agreement is attached to the complaint [Doc. 1] as Exhibit A.

The indemnity agreement was executed on October 8, 2001. The indemnity agreement contains the following pertinent provisions:

1. INDEMNIFICATION

In consideration of the execution and delivery by Surety [Developers] of a bond or any Bonds on behalf of Principal [Deer Path Vacations], Principal and Indemnitor [Martin] shall pay all premiums charged by Surety in connection with any Bond (including extensions, renewals or modifications) issued by Surety on behalf of Principal and shall indemnify and hold harmless Surety from and against any and all liability, loss, claims, demands, costs, damages, attorneys' fees and expenses of whatever kind or nature, together with interest thereon at the maximum rate allowed by law, which Surety may sustain or incur by reason of or in consequence of the execution and delivery by Surety of any Bond on behalf of Principal, whether or not Surety shall have paid any amount on account thereof, including, without limitation, the following:

1.1 To pay to Surety an initial premium upon the execution of each Bond, computed in accordance with the rates then charged at the time such Bond is executed. To also pay all renewals, extensions and premium adjustments billed by Surety until satisfactory evidence of discharge of release shall be furnished to Surety. For Premium computed on the basis of contract price, regardless of amount of such bond, to pay Surety an additional premium or be entitled to receive from Surety, as the case may be, computed on the difference in contract price occurring in the progress or at completion of the project or operation for which the Bond is issued.

1.2 Liability incurred or amounts paid in satisfaction or settlement of any or all claims, demands, damages, costs, losses, suits, proceedings or judgments relating to Principal's nonperformance of an Obligation or any other matter covered by a Bond.

1.3 Liability incurred or expenses paid in connection with claims, suits or judgments relating to an Obligation or a Bond, including, without limitation, attorneys' fees and all legal expenses, and all fees and costs for investigation, accounting, or engineering services related to the adjustment of claims and losses.

1.4 Liability incurred or expenses paid in procuring or attempting to procure a release of liability under or exoneration of a Bond.

1.5 Liability incurred or expenses paid in recovering or attempting to recover losses or expenses paid or incurred in connection with this Agreement, an Obligation or a Bond.

1.6 Liability incurred or demands, claims, damages or expenses caused by the failure of Principal or Indemnitor to perform or comply with any or all of the covenants and conditions of this Agreement, including, without limitation, the costs and expenses of Surety in connection with the enforcement of any of Principal's or Indemnitor's covenants and conditions contained herein or in connection with the exercise of any remedy of Surety hereunder.

1.7 The obligations of Principal and Indemnitor hereunder shall also include, at Surety's election, exercisable by Surety by the delivery of written notice to Principal and/or Indemnitor, the obligation to defend at Principal's and/or Indemnitor's sole cost and expense, and with counsel acceptable to Surety, any suit, action or other proceeding initiated with respect to an Obligation or a Bond.

2. EXERCISE OF RIGHTS BY SURETY

In connection with the exercise of any of Surety's rights ...


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