HomeMy Public PortalAboutBox 505 REK #1 CONSOLIDATED MOTION PARTIAL SUMMARY JUDGMENT1
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RON T. BLEWETT
ISB NO. 2963
CLARK and FEENEY
The Train Station, Suite 201
13th and Main Streets
P. O. Drawer 285
Lewiston, Idaho 83501
Telephone: (208)743-9516
Facsimile: (208)746-9160
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
EMPLOYERS INSURANCE OF WAUSAU) U.S. District Court
A MUTUAL COMPANY, a Wisconsin ) Case No. CIV01-0629-S-BLW
mutual company,
Plaintiff,
)
)
)
)
vs. ) WAUSAU'S CONSOLIDATED
MOTIONS FOR PARTIAL
ST. CLAIR CONTRACTORS, INC., an ) SUMMARY JUDGMENT
Idaho corporation; ARLISS A. ST. CLAIR; )
RANDALL T. ST. CLAIR and )
CINDY M. ST. CLAIR, husband and wife; )
DENNIS RAY ST. CLAIR and )
KAREN ELAINE ST. CLAIR, husband )
and wife; THE CITY OF McCALL, an )
Idaho municipal corporation; )
INTERWEST SUPPLY, INC., an Idaho )
corporation; and DEVELOPERS SURETY )
& INDEMNITY CO., an Iowa corporation, )
)
Defendants. )
)
INTERWEST SUPPLY, INC., an Idaho )
corporation, )
)
Counterclaimant and Crossclaimant, )
WAUSAU'S CONSOLIDATED MOTIONS
FOR PARTIAL SUMMARY JUDGMENT 1
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON. IDAHO 83501
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VS.
EMPLOYERS INSURANCE OF
WAUSAU A MUTUAL COMPANY, a
Wisconsin Mutual Company,
Counterdefendant,
and
THE CITY OF McCALL, an Idaho
municipal corporation,
Crossdefendant.
ST. CLAIR CONTRACTORS, INC., an
Idaho corporation,
Crossclaimant,
vs.
THE CITY OF McCALL, an Idaho
municipal corporation,
Crossdefendant.
ST. CLAIR CONTRACTORS, INC. , an
Idaho corporation,
Third -Party Plaintiff,
vs.
OLDCASTLE PRECAST, INC., d/b/a
AMCOR PRECAST,
Third -Party Defendant.
WAUSAU'S CONSOLIDATED MOTIONS
FOR PARTIAL SUMMARY JUDGMENT 2
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501
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COMES NOW the plaintiff, Employers Insurance of Wausau, and pursuant to Rule 56 of the
Federal Rules of Civil Procedure, does respectufuly move this honorable court to enter partial
summary judgment for Wausau in the following particulars:
PARTIAL SUMMARY JUDGMENT AGAINST THE CITY OF McCALL
1) That at the time of its performance bond demand to Wausau, the City of McCall was
in default of its contract with Wausau's Principal St. Clair Contractors, Inc., and
Wausau is discharged as Surety both by the terms of the performance bond and by
reason of the City's material breach of the underlying contract.
Acts of default by the City include, without limitation:
A) Nonpayment, which said nonpayment includes:
i) The failure to pay St. Clair Contractors as required by the contract,
including the withholding of almost $1 million dollars from amounts
previously approved for payment to St. Clair; and
ii) The reduction from St. Clair's payment of multiple times the value of
geomembrane liner from amounts previously approved for payment;
and
iii) The failure to pay St. Clair Contractors any amount for geomembrane
liner based on a percentage of completion as required by the contract;
and
iv) The failure to pay St. Clair Contractors for excavation of debris pits.
B) The refusal of St. Clair's tender of performance and the subsequent
termination of St. Clair's right to perform its construction contract; and
C) The failure to comply with contract requirements to give prompt notice of
alleged construction defects before the components in question were encased
in concrete and buried as much as 60 feet in the ground, all of which worked
to the prejudice of Wausau; and
2) That the City of McCall did cause and contribute to any delay in final completion of
the J-Ditch Phase 2 construction project by conduct in violation of the City's contract
obligations, and the City may not assess liquidated damages for delay to the account
WAUSAU'S CONSOLIDATED MOTIONS
FOR PARTIAL SUMMARY JUDGMENT 3
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501
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of the primary contractor, St. Clair Contractors, or the completing surety, Wausau.
These failures included, without limitation, the failure of the City to give
contractually required prompt notice of alleged construction defects before the same
were encased in concrete and buried as much as 60 feet in the ground.
3) That even if the City could charge liquidated damages for the failure to substantially
complete the project in a timely manner, that the project was substantially complete
no later than June 11, 2001.
4) That (even if liquidated damages could hypothetically otherwise be assessed), the
City breached the terms of the bond and its agreement to pay by charging and
withholding from payment to Wausau both actual delay damages and liquidated delay
damages.
PARTIAL SUMMARY JUDGMENT AGAINST ST. CLAIR CONTRACTORS. INC.
1) That Wausau have partial interlocutory monetary judgment against St. Clair
Contractors, Inc., and the individual indemnitors named in the caption to this
complaint in the amount of $1,182,369, plus interest in an amount to be proven at
trial, for payment bond claims paid by Wausau with the consent of St. Clair
Contractors. (This partial summary judgment is sought without prejudice to
additional claims for indemnity by Wausau.)
PARTIAL SUMMARY JUDGMENT AGAINST INTERWEST SUPPLY, INC.
1) That Interwest's claims and defenses against Wausau of (a) interference with the
contract, and (b) duress and coercion, be dismissed with prejudice.
This motion is based up on the pleadings and records of the above entitled action, and
specifically upon the following pleadings:
Wausau's Consolidated Brief in Support of Motions for Partial Summary Judgment;
Wausau's Statement of Undisputed Facts in Support of its Consolidated Motions for
Partial Summary Judgment;
Wausau's Deposition Excerpts & Deposition Exhibits in Support of Its Consolidated
Motions for Partial Sununary Judgment;
Affidavit of Randy St. Clair in Support of Plaintiff's Motion for Partial Summary
Judgment Against the City of McCall;
Affidavit of Randy Rogers in Support of Plaintiff's Motion for Partial Summary
Judgment Against the City of McCall;
WAUSAU'S CONSOLIDATED MOTIONS
FOR PARTIAL SUMMARY JUDGMENT 4
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501
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Affidavit of Sam Wiggins in Support of Plaintiff's Motion for Partial Summary
Judgment Against the City of McCall;
• Affidavit of Jesse Prather in Support of Plaintiff's Motion for Partial Summary
Judgment Against the City of McCall;
• Affidavit of John Eigler in Support of Plaintiff's Consolidated Motions for Summary
Judgment;
• Affidavit of Judith Rheinschmidt in Support of Plaintiff's Consolidated Motions for
Summary Judgment;
Affidavit of L. Neal Foxhall in Support of Plaintiff's Consolidated Motions for
Summary Judgment
DATED this 16th day of April, 2003.
CLARK and FEENEY
By
Ron T. Blewett, a member ofe firm.
Attorneys for Plaintiff
WAUSAU'S CONSOLIDATED MOTIONS
FOR PARTIAL SUMMARY JUDGMENT 5
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501
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I hereby certify on the
day of April, 20 3, a true copy
of the foregoinstrument
was: Mailed
Faxed
Hand delivered
Overnight mail to:
Ms. Susan E. Buxton
Moore, Smith, Buxton & Turcke, Chtd.
225 N. 9th Street, Suite 420
Boise, ID 83702
Mr. William A. McCurdy
Brassey, Wetherell, Crawford & McCurdy
1001 W. Idaho, 3`d Floor
P. O. Box 1009
Boise, ID 83701-1009
Mr. Geoffrey J. McConnell
Mr. Paul Boice
Meuleman & Miller, L.L.P.
960 Broadway Avenue, Suite 400
Boise, ID 83706
Mr. Kenneth D. Nyman, Esq.
Anderson, Julian & Hull
250 S. 5`h, Suite 700
P. O. Box 7426
Boise, ID 83707
Mr. David Kerrick
David Kerrick & Associates
1001 Blaine Street
P. O. Box 44
Caldwell, ID 83606
CLARK and FEENEY
By Id
Attorneys for Plaintiff
z
WAUSAU'S CONSOLIDATED MOTIONS
FOR PARTIAL SUMMARY JUDGMENT 6
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501