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Allegheny Casualty Co. v. Opcon, Inc.

United States District Court, N.D. Illinois, Eastern Division

August 1, 2019

ALLEGHENY CASUALTY COMPANY, Plaintiff,
v.
OPCON, INC., CLAYTON GRAHAM, and CHERYL GRAHAM, Defendants.

          Saloni Shah One of its Attorneys

          ALLEGHENY CASUALTY COMPANY'S MOTION FOR PROVE-UP OF FEES AND ENTRY OF JUDGMENT

         The Plaintiff, Allegheny Casualty Company ("ACC"), by its undersigned counsels, The Law Offices of T. Scott Leo, P.C., submits its Motion for Prove Up of Fees against the Defendants, Opcon, Inc. ("Opcon"), Clayton Graham ("Clayton"), and Cheryl Graham ("Cheryl"), collectively the "Defendants", pursuant to Rule 58 of the Federal Rules of Civil Procedure, and in support, states as follows:

         1. ACC seeks reimbursement/indemnity for losses it sustained as a surety under bonds issued to Opcon, Inc. at the request of the defendants. Liability arises under the terms of an Indemnity Agreement executed by the defendants, OPCON, Inc., Clayton Graham and Cheryl Graham. (See Dkt. No. 1)

         2. The amount in controversy exceeds $75, 000.00 and the parties are citizens of different states. Thus, the court has subject matter jurisdiction pursuant to 28 U.S.C. Sec. 1332. (See Dkt. No. 1)

         3. On May 21, 2019, this court entered a Default Order against all Defendants and set the matter for presentation of a Motion for Prove-up. (See Dkt. No. 12)

         4. OPCON was a general contractor for commercial buildings and engaged in the business of construction logistics. (See Dkt. No. 1)

         5. In consideration of the execution of and Indemnity Agreement by the defendants in which OPCON, Clayton Graham and Cheryl Graham agreed to indemnify ACC for losses, costs, and expenses incurred on account of its bonds, ACC issued various bonds, totaling to the penal sum of $ $5, 589, 395.00, to the company OPCON. (See Dkt. No. 1; See Affidavit of George Rettig ("Affidavit"), Exhibit 1; attached, Indemnity Agreement, Exhibit A).

         6. ACC's initial complaint sought both damages for losses already sustained and a deposit of collateral pursuant to the terms of the Indemnity Agreement for estimated remaining liability. (See Dkt. No. 1)

         7. Since the filing of the Complaint, ACC has resolved all payment bond claims and entered into contracts to complete bonded contract obligations such that its losses can be finally determined and a monetary judgment entered based upon such losses. An order requiring a deposit of collateral is no longer required.

         8. The losses and damages sustained by ACC under each bond total $1, 471, 897.84 and are supported by the Affidavit of George Rettig, attached, and itemized as follows (See Affidavit, Exhibit I, attached as Exhibit B to the Affidavit):

A. Bond CSACSU 0590230; Project: Jesse Brown VA Med. Ctr, Replace Backup Condensing Unit 1 IB Roof; Contr. # VA69D-16-C-0270
Payment Bond Losses Total: $110, 000
Payment Bond Loss Detail: $110, 000
Roberts Environmental Control.
(See Exhibit B-l).
B. Bond CSACSU 0709470; Project: Village of Schaumburg - Public Safety Building Improvements
Payment Bond Losses Total: $135, 513.92
Payment Bond Loss Detail:
$6, 378.00 - C.W. Burns Co., Inc.
$19, 802.57 - Valley Electrical ...

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