United States District Court, W.D. Texas, Austin Division
CONTINENTAL CASUALTY CO.
TEXAS BRIDGE, INC., et al.
HONORABLE ROPERT PITMAN UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion for Summary Judgment
(Dkt. No. 21). Defendants did not file a response. The
District Court referred the motion to the undersigned for
report and recommendation pursuant to 28 U.S.C.
§636(b)(1)(B), Fed.R.Civ.P. 72, and Rule 1(d) of
Appendix C of the Local Rules of the United States District
Court for the Western District of Texas.
about April 30, 2004, Texas Bridge, Inc., TBI Investments,
LLC and Spiros Kollias (“Defendants”) executed a
General Agreement of Indemnity in favor of Continental
Casualty Company (“CCC”) in which CCC agreed to
issue certain surety bonds on behalf of Defendants in
exchange for Defendants agreeing to indemnify CCC against
costs and expenses it would incur as a result of having
executed the bonds. At the request of the Defendants, CCC
issued a performance bond and a payment bond naming Texas
Bridge Partners, LP as principal, and the State of Texas as
obligee, on a construction project referred to as Loop 481
South Llano River Bridge in Junction, Kimble County, Texas
(the “Project”). After a dispute arose between
the State of Texas and Texas Bridge Partners in connection
with the Project, the State of Texas declared Texas Bridge
Partners in default and made a claim on the Performance Bond
issued by CCC in connection with the Project.
2007, the State of Texas through the Texas Department of
Transportation filed a lawsuit against Texas Bridge Partners
and CCC seeking recovery of damages allegedly resulting from
Texas Bridge Partners' breach of the construction
contract for the Project. CCC subsequently settled the
Performance Bond Claim made the subject of the lawsuit and
paid the State of Texas $1, 525, 000.00. In addition, CCC
incurred and paid $73, 654.88 in expenses, including
attorneys' fees and expenses related to the investigation
of the Performance Bond Claim, as a result of having executed
the Performance Bond, procuring a release of liability, and
in bringing suit to enforce the Defendants' obligations
under the Agreement of Indemnity.
result of the Performance Bond Claim, the lawsuit, and
Defendants' failure to satisfy its obligations under the
Indemnity Agreement, CCC contends it has suffered losses and
expenses through the date of this Motion in the total amount
of $1, 598, 654.88. CCC has made a demand upon Defendants to
comply with their obligations under the Indemnity Agreement
but Defendants have failed to pay CCC. Accordingly, on August
17, 2017, CCC filed this lawsuit to enforce Defendants'
obligations under the Indemnity Agreement. CCC's Second
Amended Complaint alleges breach of the Indemnity Agreement,
common law indemnification and seeks attorneys fees, costs
now filed a motion for summary judgment arguing that it has
established as a matter of law that Defendants violated the
Indemnity Agreement and that it is entitled to recover $1,
598, 654.88 for the full amount of its loss and expenses to
date, plus interest. As noted, Defendants have failed to file
a response to the motion.
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential
to its case and on which it will bear the burden of proof at
trial, summary judgment must be granted. Celotex,
477 U.S. at 322-23.
moves for summary judgment arguing that it has established as
a matter of law that Defendants violated the Indemnity
Agreement and that it is entitled to recover $1, 598, 654.88
for the full amount of its loss and expenses to date, plus