Insurance Company of the West v. Ollinger Construction, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10231
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00575-WS-N
INSURANCE COMPANY OF THE WEST,
Plaintiff-Appellee,
versus
OLLINGER CONSTRUCTION, INC.,
Defendant-Appellant,
TOM P. OLLINGER, et al.,
Defendants.
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Appeal from the United States District Court
for the Southern District of Alabama
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(August 14, 2013)
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Before HULL, JORDAN, and HILL, Circuit Judges.
PER CURIAM:
This is an appeal from the grant of plaintiff-appellee’s, Insurance Company
of the West (ICW), motion for summary judgment against defendant-appellant,
Ollinger Construction, Inc. (New Ollinger), in its complaint for exoneration of the
surety in the amount of $225,231.52, under the terms of a General Indemnity
Agreement (GIA), dated February 6, 2004.
The complaint alleges that ICW issued certain performance and payment
bonds on New Ollinger=s behalf. Subsequently, ICW received certain claims from
subcontractors, laborers and materialmen under the payment bond. ICW alleges in
the complaint that it settled and paid claims in excess of $150,000 under the
payment bond. It seeks to recover that amount, plus attorneys= fees, interest, and
costs, from New Ollinger.
ICW argues that New Ollinger is obliged to indemnify it under the terms of
the GIA. New Ollinger denies liability on the basis that it was not a party to the
GIA, and, that the GIA has been terminated.
The original GIA was executed in 2004 by ICW and a construction company
named Ollinger/Mostellar & Associates, Inc. (Old Ollinger), in favor of ICW as
surety. The signatories to the agreement were: Wayne B. Mostellar (President of
Old Ollinger), Tom P. Ollinger (CEO and Secretary of Old Ollinger), and
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individuals, Wayne B. Mostellar, Virginia M. Mostellar, Tom P. Ollinger, and
Lucille Jackson Ollinger (also, collectively, Old Ollinger).
In the agreement, Old Ollinger agreed to Aindemnify and keep indemnified
[ICW] against any and all liability for losses and expenses of whatsoever kind or
nature, including attorney fees and costs, by reason of having executed or procured
the execution of Bonds, or by reason of the failure of [Old Ollinger] to perform or
comply with the covenants and conditions of this Agreement.@ Under the GIA,
Old Ollinger agreed that they were not simply binding themselves, but that they
were acting Afor themselves and their heirs, executors, administrators, successors,
and assigns.@1
Two years later, in 2006, Tom Ollinger bought out his partner Wayne
Mostellar’s share of Old Ollinger, and changed the name of the company to
Ollinger Construction, Inc. (New Ollinger). One month later, Tom Ollinger sold
the company to Alexander Allain, who retained its corporate name, Ollinger
Construction, Inc.
1 The agreement provided that ICW=s Arights and remedies . . . under this Agreement may
not be waived or modified except by written amendment signed by@ ICW. The district court
found New Ollinger=s argument that it had been orally reassured by ICW agents that it would be
treated as a new start-up entity was meritless, as there was never a written amendment made to
the GIA, signed by the surety.
The GIA Aremains in full force and effect until terminated,@ by thirty days= written notice
to ICW. The district court also found that New Ollinger had never given written notice to ICW
to terminate the GIA.
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The district court found that the GIA applied to New Ollinger as the
successor-in-interest to Old Ollinger, as it was the same company with a different
name. The district court also found that ICW had made an uncontroverted
showing that its recoverable losses incurred by New Ollinger=s breach of its
indemnity obligations under the GIA totaled $225,231.52. It granted summary
judgment to ICW in this amount. We agree.
We have reviewed the record in this appeal, the briefs, and the arguments of
counsel. Finding no error, we affirm the judgment of the district court.
AFFIRMED.
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