257 F.3d 933 (9th Cir. 2001), 99-35844, W. Surety Co. v. Bank of S. Oregon

Docket Nº:99-35844
Citation:257 F.3d 933
Party Name:WESTERN SURETY CO., A TEXAS CORPORATION, PLAINTIFF-APPELLEE, v. BANK OF SOUTHERN OREGON, AN OREGON STATE CHARTERED BANK, DEFENDANT-APPELLANT.
Case Date:July 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 933

257 F.3d 933 (9th Cir. 2001)

WESTERN SURETY CO., A TEXAS CORPORATION, PLAINTIFF-APPELLEE,

v.

BANK OF SOUTHERN OREGON, AN OREGON STATE CHARTERED BANK, DEFENDANT-APPELLANT.

No. 99-35844

United States Court of Appeals, Ninth Circuit

July 12, 2001

Argued and Submitted May 9, 2001

Page 934

William V. Deatherage, Frohnmayer, Deatherage, Pratt, Jamieson, Clarke & Moore, P.C., Medford, Oregon, for the defendant-appellant.

Jan D. Sokol and James Clark Prichard, Stewart, Sokol & Gray Llc, Portland, Oregon, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon Dennis J. Hubel, Magistrate Judge, Presiding. D.C. No. CV 98-01109-DJH

Before: Alfred T. Goodwin, Morton I. Greenberg,[*] and Johnnie B. Rawlinson, Circuit Judges.

Greenberg, Circuit Judge

The Bank of Southern Oregon (the "Bank") appeals from a portion of the district court's summary judgment against it and in favor of Western Surety Company ("Western") on Western's claim that the Bank failed to honor its drafts under letters of credit. The Bank claims there was a genuine issue of material fact on its defense that Western fraudulently sought payment on one letter. Exercising plenary

Page 935

review, see Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994), we affirm the district court's grant of summary judgment in favor of Western because the Bank did not proffer any evidence establishing the elements of fraud to create a genuine issue of material fact on that issue.1

The facts are not complex. Western posted performance bonds on behalf of Black Oak Construction Company ("Black Oak") in connection with work Black Oak was performing for a school district in the State of Washington. Western also issued performance bonds in connection with work Black Oak was performing in Bend, Oregon. As a condition of issuance of the bonds, the Bank issued two Clean Irrevocable Letters of Credit in favor of Western to serve as security for losses Western might incur in the event of a default by Black Oak. The language in the letters of credit was essentially identical, although the letters had different issuing numbers, issuing dates, expiration dates and aggregate amounts. Letter of Credit No. 192 ("No. 192"), issued on June 19, 1997, for an aggregate amount not to exceed $100,000, expired on June 18, 1998, but could be extended automatically for additional one-year terms. Letter of Credit No. 195 ("No. 195"), issued on August 8, 1997, for an aggregate amount not to exceed $150,000, expired on August 7, 1998, and included the same automatic extension provision as that in Letter of Credit No. 192. Otherwise, the relevant parts of the letters of credit provided:

We warrant to you that your drafts under this CLEAN IRREVOCABLE LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION OF YOUR DRAFT(S) drawn on us at 1455 E. McAndrews Road, Medford, Oregon, on or before...

To continue reading

FREE SIGN UP