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Phila. Indem. Ins. Co. v. Manitou Constr., Inc.

United States District Court, N.D. Georgia, Atlanta Division

June 25, 2015

PHILADELPHIA INDEMNITY INSURANCE COMPANY, Plaintiff,
v.
MANITOU CONSTRUCTION, INC. and THOMAS A. NORT, Defendant

Page 1379

For Philadelphia Indemnity Insurance Company, Plaintiff: John V. Burch, LEAD ATTORNEY, Bovis, Kyle, Burch & Medlin, LLC, Atlanta, GA.

For Manitou Construction, Inc., Thomas A. Nort, Defendants: Artis Jarrod Jenkins, LEAD ATTORNEY, Jonathan E. Hawkins, Krevolin & Horst LLC, Atlanta, GA.

Page 1380

OPINION AND ORDER

CLARENCE COOPER, SENIOR UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Plaintiff Philadelphia Indemnity Insurance Company's Motion for Summary Judgment [Doc. No. 27]. Defendants Manitou Construction, Inc. and Thomas A. Nort (collectively referred to herein as " Defendants" ) have not opposed the Motion for Summary Judgment. For the foregoing reasons, the Court grants the Motion.

I. BACKGROUND

Defendant Thomas A. Nort (" Nort" ) formed Defendant Manitou Construction, Inc. (" Manitou" ) in 2011 to do work in North Dakota. Manitou entered into five government contracts, and Plaintiff Philadelphia Indemnity Insurance Company (" Philadelphia" ) issued five sets of payment and performance bonds.

Nort was the president of Manitou, and Nort and Manitou agreed to indemnify Philadelphia for all of its losses and costs. The General Indemnity Agreement (the " Indemnity Agreement" ) provides at paragraph 3 that:

Indemnitors agree to indemnify and hold harmless Surety from and against any Loss sustained or incurred: (a) by reason of having executed or being requested to execute any and all Bonds; (b) by failure of Indemnitors or Principals to perform or comply with any of

Page 1381

the covenants or conditions of this Agreement or any other agreement; and (c) in enforcing any of the covenants or conditions of this Agreement or any other agreement.... In the event of payments by Surety, Indemnitors agree to accept vouchers, a sworn itemization, or other evidence of such payments as prima facie evidence of the fact and extent of the liability of Indemnitors to Surety in any demand, claim or suit by Surety against Indemnitors.

(Indemnity Agreement [Doc. No. 27-3] ¶ 3.)

Manitou failed to pay its subcontractors and suppliers, and the subcontractors and suppliers began making substantial demands on Philadelphia under the payment bonds. Nort, both individually and on behalf of Manitou, admitted that Manitou could not pay its subcontractors and suppliers. Nort, on behalf of Manitou, eventually signed letters stating ...


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