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United Fire and Casualty Co. v. Bartlett Bituminous Asphalt

February 12, 2008

UNITED FIRE AND CASUALTY COMPANY, AN IOWA CORPORATION PLAINTIFF,
v.
BARTLETT BITUMINOUS ASPHALT, LLC, AN ILLINOIS CORPORATION; ROSANNA CONSOLE, AN ILLINOIS CITIZEN; PETER T. CONSOLE, AN ILLINOIS CITIZEN; ANTHONY P. CONSOLE, AN ILLINOIS CITIZEN; DONATO P. CONSOLE, AN ILLINOIS CITIZEN; AND NICOLE A. CONSOLE, AN ILLINOIS CITIZEN, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiff's Motion for Summary Judgment ("Pl.'s Mot."). [Dkt 41.] The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt 15, 17.] Defendants have failed to file a response or otherwise oppose Plaintiff's Motion. Plaintiff's Motion for Summary Judgment is granted. This Opinion sets out the reasons for the court's decision.

JURISDICTION

Federal jurisdiction in this case is premised on diversity of citizenship. 28 U.S.C. § 1332. Plaintiff United Fire and Casualty Company ("United Fire") is an Iowa corporation with its principal place of business in Cedar Rapids, Iowa. (Compl. ¶ 1) [Dkt 1.] Individual defendants Rosanna Console, Peter Console, Anthony Console, Donato Console, and Nicole Console are all citizens of Illinois. (Pl.'s Supp. of Rec. on Citizenship ¶¶ 2, 4.) [Dkt 58.] Defendant Bartlett Bituminous Asphalt, LLC ("BBA") is a limited liability company. (Id. ¶ 2.) BBA's members are the named individual defendants, Rosanna Console, Peter Console, Anthony Console, Donato Console, and Nicole Console, who are all citizens of Illinois. (Id.) The parties do not dispute that the amount in controversy exceeds $75,000. (Ans. ¶ 8.) [Dkt 21.]

STATEMENT OF FACTS*fn1

A. BBA's Construction Contracts

In 2004, BBA was retained by the Illinois Department of Transportation ("IDOT") to perform highway and airport improvement and construction at various locations throughout the greater Chicago area. (Pl.'s LR State. ¶¶ 2, 6, 8, 10, 12.) Specifically, BBA entered into five distinct contracts with IDOT for improvement and construction projects related to Highland Avenue (the "Highland Avenue Project"), Route 22 (the "Route 22 Project"), Oak Park (the "Oak Park Project"), Fullerton Avenue (the "Fullerton Avenue Project"), and the DuPage Municipal Airport (the "DuPage Airport Project"). (Id.) BBA also entered into contracts with the Joliet Regional Port District for construction at Lewis Airport (the "Lewis Airport Project"), and the Village of South Barrington for construction related to the widening of Barrington Road (the "Barrington Road Project"). (Id. ¶¶ 4, 14.)

B. Surety Bonds

As a condition of these seven contracts, BBA was required to furnish surety bonds guaranteeing BBA's obligations to perform work and pay for labor and materials necessary for completion of the improvement and constructions projects. (Id. ¶¶ 3, 5, 7, 9, 11, 13, 15.) At the request of BBA, United Fire issued the following seven bonds identifying BBA as principal: (1) for the Highland Avenue Project, a bond in favor of the State of Illinois for the penal sum of $3,482,322.75 (Pl.'s LR State. ¶ 3; Pl.'s LR Ex. A); (2) for the Lewis Airport Project, a bond in favor of the Joliet Regional Port District through its agent IDOT-Division of Aeronautics for the penal sum of $798,362.50 (Pl.'s LR State. ¶ 5; Pl.'s LR Ex. B); (3) for the Route 22 Project, a bond in favor of the State of Illinois for the penal sum of $4,171,427.92 (Pl.'s LR State. ¶ 7; Pl.'s LR Ex. C); (4) for the Oak Park Project, a bond in favor of the State of Illinois for the penal sum of $1,437,128.53 (Pl.'s LR State. ¶ 9; Pl.'s LR Ex. D); (5) for the Fullerton Avenue Project, a bond in favor of the State of Illinois for the penal sum of $3,286,736.09 (Pl.'s LR State. ¶ 11; Pl.'s LR Ex. E); (6) for the DuPage Airport Project, a bond in favor of the DuPage Airport Authority through its agent IDOT for the penal sum of $2,785,345.05 (Pl.'s LR State. ¶ 13; Pl.'s LR Ex. F); and (7) for the Barrington Road Project, a bond in favor of the Village of South Barrington for the penal sum of $315,757.24 (Pl.'s LR State. ¶ 15; Pl.'s LR Ex. G).

In addition to the foregoing payment and performance bonds, United Fire entered into two wage and welfare bonds with BBA as principal in favor of two labor unions for the penal sum of $10,000 each. (Pl.'s LR State. ¶ 50; Pl.'s LR Ex. I.)

C. Indemnification Agreement

In consideration for United Fire's issuance of the foregoing bonds, on or about December 11, 2003, United Fire, as Surety, BBA, as Contractor, and defendants Peter T. Console, Anthony P. Console, Donato P. Console, Nicole A. Console, and Rosanna Console, as Indemnitors, entered into an Agreement of Indemnity ("Indemnity Agreement") whereby BBA and the Indemnitors (hereinafter collectively referred to as "Defendants"), jointly and severally, agreed to indemnify and hold United Fire harmless from any losses, expenses, costs and attorneys' fees incurred by United Fire as a consequence of issuing bonds on behalf of BBA. (Pl.'s LR State. ¶ 16; Pl.'s LR Ex. H, INDEMNITY SECOND.) The Indemnity Agreement was executed by Defendants Peter T. Console, Anthony P. Console, Donato P. Console, and Nicole A. Console in their individual capacity, and Rosanna Console, as managing member of BBA and in her individual capacity. (Pl.'s LR Ex. H.)

Specifically, the Indemnity Agreement states:

INDEMNITY SECOND: The Contractor and the Indemnitors shall exonerate, indemnify, and keep indemnified the Surety from and against any and all liability for losses and/or expenses of whatsoever kind or nature (including, but not limited to, interest, court costs and counsel fees) and from and against any and all such losses and/or expenses which the Surety may sustain and incur: (1) By reason of having executed the Bonds, (2) By reason of the failure of the Contractor or Indemnitors to perform or comply with the covenants and conditions of this Agreement, or (3) in enforcing any of the ...


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