Anderson v. US Fidelity & Guar. Co.
Decision Date | 28 May 2004 |
Docket Number | No. A04A0668.,A04A0668. |
Citation | 267 Ga. App. 624,600 S.E.2d 712 |
Court | Georgia Court of Appeals |
Parties | ANDERSON et al. v. UNITED STATES FIDELITY & GUARANTY COMPANY et al. |
OPINION TEXT STARTS HERE
Ray & McKinney, Robert M. Ray, Jr., Ellijay, John P. Tucker, Jr., Blue Ridge, for appellants.
Bovis, Kyle & Burch, John V. Burch, Charles R. Sharp, Atlanta, for appellees.
United States Fidelity & Guaranty Company, Fidelity & Guaranty Insurance Company, and Fidelity & Guaranty Company, Inc. (collectively "USF & G") filed an action against James and Christy Anderson ("appellants") and others, seeking reimbursement from defendants as indemnitors of surety bonds issued by USF & G on behalf of Eagle Construction Company of Georgia, Inc. ("Eagle"). The trial court granted USF & G's motions for summary judgment as to liability and damages under the indemnity agreement, and awarded USF & G $141,798.32. Appellants contend that the trial court erred in granting summary judgment on the issue of damages. For reasons that follow, we affirm the trial court.
In 1999, Eagle experienced financial difficulties, resulting in its inability to complete projects and/or pay subcontractors and suppliers. Subsequently, USF & G received claims on the bonds it issued for several construction projects. USF & G advised Eagle of the claims and requested Eagle's assistance in addressing the claims, several of which resulted in lawsuits. Pursuant to its obligations under the bonds, USF & G incurred attorney fees related to defending the claims on behalf of Eagle, and also made direct payments to several of Eagle's subcontractors and suppliers.
In August 2000, USF & G filed this action seeking reimbursement. On June 11, 2001, USF & G filed a motion for summary judgment. In support of the motion, USF & G filed the affidavits of John Simanski and Matthew L. Silverstein. Simanski is a vice president of USF & G and Silverstein is the USF & G claims attorney who is the custodian of records for all documents related to the Eagle matter. Simanski averred that as of May 22, 2001, USF & G incurred damages in the amount of $140,319.63, as a result of its issuance of bonds on behalf of Eagle. An itemized statement of losses, expenses and costs is attached to Simanski's affidavit. Silverstein's affidavit stated that Eagle did not reimburse USF & G for its losses, expenses and costs. According to Silverstein, USF & G hired a construction consulting firm to assist in evaluation of the claims under the bonds; paid for the legal services necessary to defend Eagle in suits by subcontractors/suppliers; paid the legal fees necessary to enforce its own interests under the indemnity agreement; hired Investigative Group International, Inc. (" IGI"), to research the assets and resources of the defendants; and made direct payments to several of Eagle's subcontractors and suppliers.
On April 22, 2002, the trial court granted USF & G's motion on the issue of liability but denied the motion on the issue of damages. On July 1, 2002, USF & G filed a second motion for summary judgment on the issue of damages. In support of this motion, USF & G filed the second affidavit of Silverstein, which averred that USF & G had paid out in excess of $152,122.49, as a result of its issuance of bonds on behalf of Eagle. Attached to the second affidavit is a schedule/summary of each payment made by USF & G as well as copies of invoices and other documents reflecting the expenses incurred and paid by USF & G. In response, defendants filed the affidavit of Mark Rogers, Eagle's project manager from February, 1998 to August, 2000. Rogers disputes Silverstein's affidavit and the claims paid by USF & G, and notes that it is "impossible for anyone to say if an expense sought to be recovered by [USF & G] relates to anything that is attached [to Silverstein's affidavit] because none of the underlying claim documents [including the actual bonds] have ever been provided to the [c]ourt or to anyone else." Rogers further opines that the expenses incurred by USF & G were unreasonable and unnecessary. Rogers also notes that Silverstein's second affidavit is not sworn; rather, Silverstein merely verified the motion for summary judgment.
On February 19, 2003, a hearing was held on USF & G's second motion for summary judgment. The hearing was limited to arguments from counsel and neither party offered testimony. On February 24, 2003, USF & G filed Silverstein's third affidavit which is identical to his second affidavit but includes a properly executed jurat. On June 30, 2003, the trial court granted USF & G's motion and entered judgment in favor of USF & G in the amount of $141,798.32.1 Appellants appeal this ruling, arguing that the trial court failed to view the record in the light most favorable to them and erroneously ignored Rogers' conflicting affidavit. Appellants also argue that USF & G failed to meet its prima facie burden of proof.
1. In their first enumeration of error, appellants contend that USF & G did not meet its prima facie burden of proof for three reasons: (a) billing summaries and statements, such as the ones attached to Silverstein's affidavit are inadmissible hearsay; (b) Silverstein's second and third affidavits, which were admitted and relied on by the trial court, were not sworn to by an officer of USF & G as required by Section IV of the indemnity agreement; and (c) the materials contained in Silverstein's affidavits, which contain few original documents and were never tendered to the trial court or made available at the hearing, are inherently unreliable. Appellants do not dispute that they are bound by the indemnity agreement.
At the outset, we note that this Court consistently has upheld the validity and enforceability of indemnification agreements executed in connection with the issuance of surety bonds. See, e.g., Nguyen v. Lumbermens Mut. Cas. Co., 261 Ga.App. 553, 555(1), 583 S.E.2d 220 (2003); Rhodes v. Amwest Surety Ins. Co., 207 Ga.App. 441, 428 S.E.2d 581 (1993); Horton v. United States Fidelity &c. Co., 194 Ga.App. 881, 392 S.E.2d 25 (1990); M-Pax, Inc. v. Dependable Ins. Co., 176 Ga.App. 93, 335 S.E.2d 591 (1985). When interpreting such agreements, we apply the ordinary rules of contract construction. See Tuzman v. Leventhal, 174 Ga.App. 297, 299, 329 S.E.2d 610 (1985). "[N]o construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation." (Punctuation and footnote omitted.) Nguyen, supra at 555(1), 583 S.E.2d 220. The indemnity agreement at issue expressly provided that if USF & G believed in good faith that it might be liable for payments, it was entitled to indemnity from appellants. Accordingly, once USF & G made its prima facie showing of good-faith payments, the burden shifted to appellants to establish bad faith. See id. () (footnote omitted).
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Private sector business records
...Not every document pertaining to bills or billing constitutes hearsay. See, for example, Anderson v. United States Fid. & Guar. Co., 600 S.E.2d 712 (2004). In an action by a surety against indemnitors, billing summaries attached to the surety’s attorney’s affidavit in support of summary jud......
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Private Sector Business Records
...Not every document pertaining to bills or billing constitutes hearsay. See, for example, Anderson v. United States Fid. & Guar. Co., 600 S.E.2d 712 (2004). In an action by a surety against indemnitors, billing summaries attached to the surety’s attorney’s affidavit in support of summary jud......
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Private Sector Business Records
...Not every document pertaining to bills or billing constitutes hearsay. See, for example, Anderson v. United States Fid. & Guar. Co., 600 S.E.2d 712 (2004). In an action by a surety against indemnitors, billing summaries attached to the surety’s attorney’s affidavit in support of summary jud......
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Private Sector Business Records
...Not every document pertaining to bills or billing constitutes hearsay. See, for example, Anderson v. United States Fid. & Guar. Co., 600 S.E.2d 712 (2004). In an action by a surety against indemnitors, billing summaries attached to the surety’s attorney’s affidavit in support of summary jud......