Bagley v. Western Cas. & Sur. Co.
| Decision Date | 21 April 1987 |
| Docket Number | No. BN-294,BN-294 |
| Parties | 12 Fla. L. Weekly 1076 Bernard J. BAGLEY, Appellant, v. The WESTERN CASUALTY & SURETY COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Lisa K. deBrauwere and Clifford W. Sanborn, of Barron, Redding, Hughes, Fite, Bassett & Fenson, Panama City, for appellant.
W. Douglas Hall, of Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, Tallahassee, for appellee.
We review a summary judgment for appellee, The Western Casualty and Surety Company, in its action against appellant, Bernard J. Bagley, on an indemnity agreement executed by Bagley in Western's favor. Finding reversible error, we remand for trial.
Bagley-Walcott & Associates, a corporation, was engaged in the construction business. On August 4, 1980, Bagley-Walcott, as subcontractor, entered into an agreement with Caroma Construction, the prime contractor, to perform rehabilitation work on apartments located in Jackson, Mississippi. Bagley-Walcott obtained performance and payment bonds from Western which guaranteed the faithful performance of the subcontract by Bagley-Walcott. At the same time, Bagley-Walcott & Associates, appellant Bagley, Dewitt Walcott, III, and Marion B. Walcott executed an agreement in which they agreed to indemnify Western for any liability incurred on the performance bonds issued by Western for Bagley-Walcott.
The owner of the Mississippi apartment complex claimed that the materials installed by Bagley-Walcott were defective, and demanded that Caroma replace the defective materials. Caroma in turn demanded Bagley-Walcott and Western, as surety, to correct the defective work. Bagley-Walcott refused, stating it had performed properly under the contract. Caroma filed a demand for arbitration against Bagley-Walcott, and Western, at Bagley-Walcott's request, undertook to represent them at the arbitration proceedings. Meanwhile, on October 26, 1983, Bagley-Walcott and Dewitt and Marion Walcott filed for chapter 7 bankruptcy. Caroma's claim against Bagley-Walcott was settled in March 1985, and Western, pursuant to its performance bond, agreed to pay Caroma $24,000. Western also incurred $24,784.62 in attorney's fees during these proceedings.
Western subsequently sued Bagley on the indemnity agreement seeking judgment in the amount of $50,211.32. Bagley's answer admitted that he executed the agreement in 1980, but denied liability and asserted several affirmative defenses, including release by Western from any obligation under the indemnity agreement.
Western moved for summary judgment on two grounds: (1) that Western did not release Bagley from his obligation under the indemnity agreement; and (2) that Bagley was given notice and opportunity to defend the suit underlying the claim for indemnification and could not now challenge the reasonableness of the settlement amount. Western relied in part on an agreement dated October 5, 1982, purportedly executed by appellant. Bagley opposed the motion, filing his affidavit stating that (1) he did not personally have notice and an opportunity to defend the claims brought against Western by Caroma, and that (2) he did not sign the October 1982 agreement and his signature thereon was obtained through forgery or fraud.
The court granted summary judgment against Bagley on the ground that the notice given by Western to the corporation, Bagley-Walcott, also constituted notice to Bagley because he was at the time secretary of the corporation. Denying Bagley's motion for rehearing, the trial court further explained that the notice Western gave Bagley-Walcott in April 1982 was imputed to Bagley as a matter of law since Bagley was an officer in the corporation. Bagley appealed this ruling in case no. BL-140; however, the case was dismissed on the ground that the time for filing an appeal from the November 7, 1985 order had expired. The procedural irregularities resulting in this dismissal were corrected by the trial court's order dated April 28, 1986, on Bagley's motion for relief pursuant to rule 1.540(b), Florida Rules of Civil Procedure. That order vacated the order and judgment entered on November 7, 1985, and effectively permitted a new judgment to be entered from which a timely appeal could be taken.
We hold that the trial court erred in granting summary judgment. The stated ground for the ruling, i.e., that notice sent to the corporation was legally imputed to Bagley, is based on misconception of the law. It is well established that in...
To continue reading
Request your trial
-
Star Lakes Estates Ass'n, Inc. v. Auerbach
...v. Talcott, 191 So.2d 40, 43-44 (Fla.1966); see Chihocky v. Crapo, 632 So.2d 230, 233 (Fla. 1st DCA 1994); Bagley v. Western Cas. & Sur. Co., 505 So.2d 678, 680 (Fla. 1st DCA 1987); Allstate Ins. Co. v. Arvida Corp., 421 So.2d 741, 743 (Fla. 4th DCA 1982). To meet this initial burden the mo......
-
Bankers Ins. Co. v. American Team Managers, Inc.
...of fraud or collusion." Heapy Eng'g, LLP v. Pure Lodging, LTD., 849 So. 2d 424, 425 (Fla. 1st DCA 2003); see Bagley v. W. Cas. & Sur. Co., 505 So. 2d 678, 680 (Fla. 1st DCA 1987). Thus, "where notice has been given to the indemnitor and the indemnitor has elected not to act to protect himse......
- Citizens of State of Fla. v. Wilson
-
Ahern v. Odyssey Re (London) Ltd.
...of the suit and an opportunity to defend, and the settlement was not the product of fraud or collusion. See Bagley v. W. Cas. & Sur. Co., 505 So.2d 678, 680 (Fla. 1st DCA 1987). To hold otherwise would mean that the surety company ... may refuse to defend that suit and stand by while that i......
-
Legal theories & defenses
...and defend the claim. Further, the settlement must not be the result of fraud or collusion.” Bagley v. Western Casualty & Surety, Co. , 505 So.2d 678, 680 (Fla. 5th DCA 1987). See Also Heapy Engineering, LLP v. Pure Lodging, Ltd. , 849 So.2d 424, 425 (Fla. 1st DCA 2003). §18:230.1.2 Element......