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First National Insurance Company of America v. Gregory L. Hunt

June 2, 2011




Plaintiff First National Insurance Company of America ("First National") brought this action, alleging that defendants Gregory L. Hunt, individually and doing business as Hunt's Excavating, Cecilia Hunt, and Action Construction Co. breached an indemnity agreement. First National now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 on its claim for breach of indemnity agreement.*fn1 Defendants failed to file an opposition or statement of non-opposition to the motion, as required by Local Rule 230(c), or a response to plaintiff's statement of undisputed facts, as required by Local Rule 260(b).

I. Standard

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial. Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

A party opposing summary judgment who "fail[s] specifically to challenge the facts identified in the [moving party's] statement of undisputed facts . . . is deemed to have admitted the validity of [those] facts . . . ." Beard v. Banks, 548 U.S. 521, 527 (2006).

II. Relevant Facts

Because defendants failed to respond to plaintiff's motion, the court takes the facts as presented by plaintiff as undisputed. On September 11, 2008, the parties entered into a General Agreement of Indemnity for Contractors ("Indemnity Agreement"). (Wilcox Decl. ¶ 6, Ex. 1 (Docket No. 23).) The Indemnity Agreement begins by stating:

THIS AGREEMENT is made by the Undersigned in favor of the Safeco Insurance Companies for the purpose of indemnifying them from all loss and expense in connection with any Bonds for which any Safeco Insurance Company now is or hereafter becomes Surety for any of the following as Principal (hereinafter referred to as Contractor): Action Construction Co.; Hunt's Excavating (Gregory L. Hunt, Owner).*fn2 (Id. Ex. 1.) The agreement is signed by Gregory L. Hunt and Cecilia Hunt individually and by Gregory L. Hunt as President of Action Construction Co. (Id.)

As relevant to this motion, the Indemnity Agreement contains the following provisions:

INDEMNITY TO SURETY: Undersigned agree to pay to Surety upon demand:

1. All loss, costs, and expenses of whatsoever kind and nature, including court costs, reasonable attorney fees (whether Surety at its sole option elects to employ its own attorney, or permits or requires Undersigned to make arrangements for Surety's legal representation), consultant fees, investigative costs and any other losses, costs or expenses incurred by Surety by reason of having executed any Bond, or incurred by it on account of any Default under this agreement by any of the Undersigned, or by reason of the refusal to execute any Bond. In addition the Undersigned agree to pay to Surety interest on all disbursements made by Surety in connection with such loss, costs and expenses incurred by Surety at the maximum rate permitted by law calculated from the date of each disbursement; . . .

With respect to claims against Surety:

1. Surety shall have the exclusive right for itself and the Undersigned to determine in its sole and absolute discretion whether any claim or suit upon any Bond shall, on the basis of belief of liability, expediency ...

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