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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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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