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May 9, 1980


The opinion of the court was delivered by: Aspen, District Judge:


This action arises out of the performance by plaintiff("Hartford") of a Hartford Accident and Indemnity Company construction contract with Boise Cascade Corporation ("Boise"). The undisputed facts are as follows. On July 17, 1974, Boise retained McCollough Construction Company ("McCollough") to construct additions and improvements to Boise's Corrugated Container Division manufacturing plant located in LaPorte, Indiana. The contract between Boise and McCollough specified that the construction was to be substantially complete by late March, 1975. As required by Boise, McCollough obtained a performance bond and a labor and material payment bond from Hartford. Pursuant to these bonds, Hartford assumed the role of a surety, guaranteeing that if McCollough defaulted on the contract, it either would remedy the default, complete the contract itself, or arrange for the completion of the contract by another contractor.

Thereafter, Hartford paid all valid claims of McCollough's materialmen, procured the necessary labor and materials for completion of the LaPorte project, and in fact did secure the completion of that project.*fn2 Boise, however, has refused Hartford's demand for payment of the remaining contract balance of $261,571.96. As a result, Hartford filed this diversity action seeking recovery of the sum due under the contract. Boise has counterclaimed, alleging that Hartford's failure to secure completion of the construction project by the scheduled date of late March, 1975, has caused it to suffer losses totalling $560,842.44. Thus, Boise seeks recovery of this amount as offset by the amount due to Hartford for completion of the project.

The case now is before the Court on Hartford's motion under Fed.R.Civ.P. 56(a) for summary judgment on its claim for payment of the contract balance. In addition, Hartford asks the Court to enter this ruling as a final judgment pursuant to Fed.R.Civ.P. 54(b). For the reasons that follow, the Court finds it appropriate to grant both of Hartford's requests.

I. Summary Judgment

The Seventh Circuit has observed that "[w]ith the ever increasing burden upon the judiciary, persuasive reasons exist for the utilization of summary judgment procedure whenever appropriate." Kirk v. Home Indemnity Co., 431 F.2d 554, 560 (7th Cir. 1970). The Court is mindful that it is not its function to resolve disputed issues of fact — particularly those which involve questions of motive or intent — in a trial by affidavit. Cedillo v. International Association of Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10-11 (7th Cir. 1979). Nonetheless, it is the function of the Court to make a discerning inquiry into the allegations and supporting documentation to determine whether there are any factual disputes which require resolution by trial. Any doubts must be resolved against the moving party. Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 576 (7th Cir. 1961).

Applying these standards, the Court is satisfied that there remain in dispute no facts material to Hartford's claim. Boise does not dispute Hartford's allegations that it completed the construction project at LaPorte, and that there remains an outstanding contract balance of $261,571.96. Indeed, the prayer for relief in Boise's counterclaim explicitly recognizes that any recovery it obtains thereunder will be diminished by the amount it owes to Hartford. Boise, however, seeks to defeat the motion for summary judgment by construing Hartford's right to payment upon completion as subject to any claims against Hartford or McCollough.

Under Indiana law, however,*fn3 the construction of a written contract is a question of law rather than one of fact. McGann & Marsh Company, Inc. v. K. & F. Mfg. Co., 385 N.E.2d 1183, 1187 (3d Dist., Ind. App. 1979); Kleen Leen, Inc. v. Mylcraine, 369 N.E.2d 638, 640 (1st Dist., Ind. App. 1978). Only where the Court determines that the contract is ambiguous in that certain terms are susceptible of more than one reasonable interpretation is a question of fact raised. Mylcraine, 369 N.E.2d at 641. In support of its position, Boise cites to the provisions of its agreement with Hartford which reserve any claims under the original contract and which incorporate the provisions of the original contract. The Court, however, finds no ambiguity in either the agreement between Hartford and Boise or the original contract which it incorporates by reference. Boise can point to no clause of the original contract which in any way suggests that Hartford's right to payment upon completion is conditional upon completion of the project within the specified time period. The clause which establishes the projected completion date is silent as to any such contingency. Moreover, Article 4 of the original contract provides for insertion of any "provisions for liquidated damages relating to failure to complete [the project] on time." Yet, no such provisions were inserted.*fn4 Indeed, Boise's inability to make specific reference to any points of ambiguity in the original contract is eloquent testimony to the clarity of the contract.

Although Boise now might wish otherwise, the Court believes it clear that the various agreements between Boise and Cascade do not condition Hartford's right to payment on its completion of the project within the specified time period. Since there are no other questions of fact with respect to Hartford's right to payment, the Court grants Hartford's motion for summary judgment on its claim for payment of the outstanding balance of the original contract.

II. Final Judgment Under Rule 54(b)

Since this action involves multiple claims, the Court's grant of summary judgment on Hartford's claim may assume finality at this time only upon an express determination under Rule 54(b) that there is no just reason for delay in the entry of final judgment.*fn5 As the Supreme Court recently recognized in Curtiss-Wright Corp. v. General Electric Co., ___ U.S. ___, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980), there are two components in the inquiry into whether there exist reasons to delay the entry of final judgment on one claim in a multiple-claim case.*fn6 First, the Court must consider whether certification under Rule 54(b) would offend the "historic policy against piecemeal appeals." General Electric Co., ___ U.S. at ___, 100 S.Ct. at 1462, citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438, 76 S.Ct. 895, 901, 100 L.Ed. 1297 (1956). This inquiry takes into consideration such factors as the separability of the adjudicated claim from those remaining in the case; whether certification would require the appellate court to decide the same issues more than once in the event of subsequent appeals of the remaining claims; whether the need for appellate review might be obviated by future developments in the district court; and whether certification and immediate appeal of an adjudicated claim might impede unduly the progress of the trial of the remaining claims. See Wright & Miller, Federal Practice and Procedure: Civil § 2659 at 78-81. Second, the Court must examine the equities in a given case to ascertain whether certification — or the failure to certify — would result in injustice to any of the parties involved. General Electric, ___ U.S. at ___, 100 S.Ct. at 1465. Whereas a reviewing court will scrutinize a district court's assessment of the first component, it will accord substantial deference to the district court's judgment with respect to the second inquiry, disturbing its assessment of the equities only if clearly unreasonable. General Electric.

With respect to the first inquiry, the Court finds that Rule 54(b) certification in the instant case would not be inconsistent with the interests of sound judicial administration. Although Boise's counterclaim arises from the same general transaction as does Hartford's claim and thus may be termed compulsory under Fed.R.Civ.P. 13(a), this in itself poses no bar to certification. Cold Metal Process Co. v. United Engineering, 351 U.S. 445, 452, 76 S.Ct. 904, 908, 100 L.Ed. 1311 (1956). Indeed, despite its compulsory nature, the claim and counterclaim herein raise distinct factual questions. Whereas Hartford's claim involves the question of whether it finished the project and the amount due as a result thereof, Boise's counterclaim raises the issue of when Hartford finished the project and the extent of damage suffered as a result of any delay in completion. As a result of this separability between the claim and counterclaim, it is unlikely that certification would result in duplicative appeals. For the same reason, it is doubtful that appellate review would be obviated by future developments at the district court or that trial of the counterclaim would be delayed by an immediate appeal of the grant of summary judgment on Hartford's claim. Thus, the Court finds that these judicial considerations do not militate against certification.

Conversely, the Court believes that the equities of this case weigh in favor of certification. Under Indiana law, the prejudgment rate of interest is fixed by statute at eight percent. Ind. Code Ann. § 24-4.6-1-103(b) (Burns).*fn7 This interest rate is lower than that available in the open market. Until the Court enters an order of final judgment, however, Hartford could be awarded only the statutory rate of prejudgment interest. Therefore, failure to certify the order of summary judgment would result in a real financial loss to Hartford until resolution of the counterclaim would conclude the entire case. Since it is possible that final adjudication of the counterclaim may not occur before the end of the year, this loss could be significant. Moreover, there has been no allegation by Boise that Hartford is insolvent, and that it would be impossible for Boise to recoup the money paid out on Hartford's claim should Boise prevail on its counterclaim.*fn8 Thus, the balance of the equities, in conjunction with the considerations of sound judicial administration, ...

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