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Developers Surety & Indemnity Co. v. Bartlett Bituminous Asphalt

February 27, 2008

DEVELOPERS SURETY & INDEMNITY COMPANY, AN IOWA CORPORATION, PLAINTIFF,
v.
BARTLETT BITUMINOUS ASPHALT, LLC, D/B/A BBA, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY, DONATO P. CONSOLE, AN INDIVIDUAL, PETER T. CONSOLE, AN INDIVIDUAL, ROSANNA CONSOLE, AN INDIVIDUAL, AND ANTHONY P. CONSOLE, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff Developers Surety & Indemnity Company ("Developers") filed this diversity suit against Defendants Bartlett Bituminous Asphalt, LLC, d/b/a BBA, LLC ("BBA"), Donato P. Console, Peter T. Console, Rosanna Console, and Anthony P. Console, seeking indemnification for losses sustained in connection with certain projects on which Developers issued performance and payment (i.e., surety) bonds. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Developers has now filed a motion for summary judgment on its claims. For the reasons set forth here, the motion is granted.

BACKGROUND

The facts of this case are largely undisputed. Developers is an Iowa corporation with its principal place of business in Irvine, California. (Pl. Facts ¶ 1.) BBA is an Illinois Limited Liability Company with its principal place of business in Elmhurst, Illinois. Donato Console is an Illinois resident living in DuPage County. Peter Console, Rosanna Console and Anthony Console, also residents of Illinois, live in Cook County.*fn1 (Id. ¶¶ 2-6.)

A. The Indemnity Agreement

On December 27, 2002, Defendants executed an Indemnity Agreement ("Agreement") stating that each of them would be jointly and severally liable to Developers for certain liabilities and expenses incurred in connection with any surety bonds that Developers issued on Defendants' behalf. (Id. ¶ 30; Ex. 2 to Pl. Facts.) Specifically, Defendants agreed to indemnify Developers for:

1.2 Liability incurred or expenses paid in satisfaction or settlement of any or all claims, demands, damages, costs, losses, suits, proceedings or judgments relating to Principal's*fn2 nonperformance of an Obligation*fn3 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.

(Id. ¶ 31; Ex. 2 to Pl. Facts, at 1-2.)

In reliance on this Agreement, Developers issued surety bonds on Defendants' behalf for seven projects: the Woodridge Project; the Ashland Avenue Project; the Palwaukee Airport Project; the Forest Glen Project; the Village of Westmont Project; the ...


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