United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. STIVERS, JUDGE.
matter is before the Court on Plaintiff's Motion for
Summary Judgment (DN 9). The Court previously directed
Defendants to the respond to the motion by April 3, 2017, but
Defendants failed to do so. (Order, DN 13). For the reasons
outlined below, the motion is GRANTED.
STATEMENT OF FACTS AND CLAIMS
Ohio Farmers Insurance Company (“OFIC”) is an
Ohio corporation authorized to do business in the
Commonwealth of Kentucky. (Compl. ¶ 1, DN 1). On April
3, 2013, Defendants Charlie's Electric Service, Inc.
(“Charlie's Electric”), Charles McCutchen,
and Katherine McCutchen entered into an indemnity agreement
(“Agreement”) with OFIC. (Compl. ¶ 9;
Agreement of Indemnity 8-9, DN 1-2). Based on Defendants'
execution of the Agreement, OFIC issued a Subcontractor
Performance Bond No. 6087987 (“Performance Bond”)
and a Subcontractor Labor and Material Payment Bond No.
6087987 (“Payment “Bond”) for electrical
work that Charlie's Electric had contracted to perform
for Yager Materials, LLC (“Yager Materials”) in
the Commonwealth of Kentucky (“Bonded
Subcontract”). (Compl. Ex. 2, DN 1-3; Smith Aff. ¶
3, DN 10; Smith Aff. Ex. 2, DN 10-2).
letter dated May 22, 2015, Yager Materials notified OFIC and
Charlie's Electric that Yager Materials was contemplating
declaring Charlie's Electric in default of the Bonded
Subcontract due to its failure to timely complete the work on
the project. (Smith Aff. ¶ 4; Smith Aff. Ex. 3, DN
10-3). Yager Materials requested a meeting with OFIC and
Charlie's Electric to discuss the status of the project,
which was held on May 28, 2015. (Smith Aff. ¶ 4; Smith
Aff. Ex. 3). On or about June 15, 2015, Charlie's
Electric notified OFIC that it could no longer perform the
work under the Bonded Subcontract and had abandoned the
project. (Smith Aff. ¶ 4). By letter dated June 15,
2015, Yager Materials declared Charlie's Electric in
default and demanded that OFIC assume responsibility for
performance and completion of work under the Bonded
Subcontract, including assuming responsibility for payment of
the work. (Smith Aff. ¶ 4; Smith Aff. Ex. 4, DN 10-4).
16, 2015, OFIC sent a letter to Defendants notifying them
that they had breached the Agreement, demanding
indemnification, and requesting that they deposit the sum of
$150, 000 as collateral security. (Compl. ¶ 20; Compl.
Ex. 5, DN 1-6). Defendants did not respond to the letter, and
they did not deposit any collateral. (Compl. ¶ 21; Smith
Aff. ¶ 4).
of its investigation, OFIC received a bid in the amount of
$397, 204.25 to remediate and complete the work under the
Bonded Subcontract. (Smith Aff. ¶ 4). OFIC then
proceeded to reach an agreement with Yager Materials under
which OFIC would pay Yager Materials the sum of $397, 000 to
be held in trust to apply to the completion of the work
required by the Bonded Subcontract. (Smith Aff. ¶ 4;
Smith Aff. Ex. 5, DN 10-5). After the work was completed and
Yager Material paid the replacement subcontractor the sum of
$201, 650.19 for the work, OFIC was able to recoup $195,
349.81 of the original $397, 000 it paid under the
Performance Bond. (Smith Aff. ¶ 4). After Rexel, Inc., a
supplier of Charlie's Electric, made a claim on the
Payment Bond, OFIC settled the claim by paying the sum of
$22, 000 from the Payment Bond. (Smith Aff. ¶ 5; Smith
Aff. Ex. 6, DN 10-6). OFIC also maintains that it has
additional losses or expenses totaling $9, 363. (Smith Aff.
filed this action against Defendants seeking specific
performance of the Agreement and breach of contract. (Compl.
¶¶ 29-43). In addition, OFIC alleged that it is
entitled to equitable indemnity, reimbursement, and
exoneration against Charlie's Electric, and that it is
entitled to relief under the equitable remedy of quia
timet. (Compl. ¶¶ 44-48). As noted above,
Defendants have not responded to OFIC's motion.
Court has subject-matter jurisdiction of this matter based
upon diversity of citizenship. See 28 U.S.C. §
STANDARD OF REVIEW
ruling on a motion for summary judgment, the Court must
determine whether there is any genuine issue of material fact
that would preclude entry of judgment for the moving party as
a matter of law. See Fed. R. Civ. P. 56(a). The
moving party bears the initial burden of stating the basis
for the motion and identifying evidence in the record that
demonstrates an absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). If the moving party satisfies its burden, the
non-moving party must then produce specific evidence proving
the existence of a genuine issue of fact for trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
the Court must view the evidence in the light most favorable
to the non-moving party, the non-moving party must do more
than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (citation omitted). Rather, the non-moving party must
present specific facts proving that a genuine factual issue
exists by “citing to particular parts of the materials
in the record” or by “showing that the materials
cited do not establish the absence . . . of a genuine
dispute.” Fed.R.Civ.P. 56(c)(1). “The mere
existence of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient; there
must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at