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Court upholds summary judgment in favor of New Castle

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The Indiana Court of Appeals has affirmed that a contractor and insurance company owe the city of New Castle more than $900,000 in damages and attorney fees for breaching a construction contract.

In Dave's Excavating, Inc. and Liberty Mutual Insurance Co. v. City of New Castle, Indiana, No. 33A04-1104-PL-199, Dave’s Excavating and Liberty Mutual, which guarantied Dave’s performance with its performance bond, appealed the Henry Circuit Court’s decision granting summary judgment in favor of New Castle in its lawsuit for breach of contract. Dave’s was awarded a contract for a sanitation project but stopped work at one point because of “differing subsurface conditions” in accordance with Section 4.03 of the contract. Dave’s sought review from the engineer of the project as to how to handle the unexpected physical conditions of the land. The project engineer responded that Dave’s should return to work, but Dave’s interpreted the contract that the engineer should conduct an investigation before Dave’s resumed work.

The dispute led to delays in work and caused New Castle to have to hire another contractor to finish the work. New Castle filed suit against Dave’s for breach of construction contract and sought payment of the performance bond in the amount of $427,524.54 from Liberty Mutual.

The appellate court affirmed summary judgment in favor of the city, finding that Dave’s did breach the contract. The contract required that the city “review the pertinent condition,” which it did when the engineer reviewed the claim and determined that Dave’s wasn’t entitled to a price or time adjustment and should continue working, wrote Judge Edward Najam. Despite what Liberty Mutual argued, the contract did not require the city to “investigate” the physical site.

With regards to the performance bond, Liberty Mutual failed to exercise any of its options to mitigate under the performance bond. The evidence showed Liberty Mutual did not act promptly to assert its rights under the performance bond, as was required under Section 4.4. Liberty Mutual also specifically directed the city to mitigate its damages, which it did by hiring another contract to complete the project.

The judges also upheld the award of attorney fees for the city.

 

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  1. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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