UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

AMERICAN CONTRACTORS 

INDEMNITY COMPANY, 

a foreign corporation, 

Plaintiff,

v.

ARRIAGA STEEL, INC., a Florida 

corporation, ANTONIO ARRIAGA,

MARISOL ARRIAGA, and GEOVANNI 

ARRIAGA

Defendants.

 /

Case No.: 

COMPLAINT

Plaintiff, AMERICAN CONTRACTORS INDEMNITY COMPANY

(“ACIC”), through its counsel, sues Defendants, ARRIAGA STEEL, INC. 

(“ASI”), ANTONIO ARRIAGA, MARISOL ARRIAGA, and GEOVANNI 

ARRIAGA, and alleges as follows:

PARTIES, JURISDICTION, AND VENUE

1. This Court has jurisdiction over the parties pursuant to 28 U.S.C. § 

1332(a) because Plaintiff and Defendants are citizens of different states. 

2. ACIC is a Maryland corporation, with its principal place of business 

in Timonium, Maryland, making it a citizen of Maryland.

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3. Upon information and belief, ASI is a Florida corporation with its 

principal place of business located in North Lauderdale, Broward County, Florida, 

making it a citizen of Florida. 

4. Upon information and belief, Antonio Arriaga is a Florida citizen who 

resides in North Lauderdale, Broward County, Florida, making him a citizen of 

Florida.

5. Upon information and belief, Marisol Arriaga is a Florida citizen who 

resides in North Lauderdale, Broward County, Florida, making her a citizen of 

Florida. 

6. Upon information and belief, Geovanni Arriaga is a Florida citizen 

who resides in North Lauderdale, Broward County, Florida, making him a citizen 

of Florida

7. The causes of action alleged herein fall within the jurisdictional limits 

of the Court because ACIC seeks to recover more than $75,000.00 from the 

Defendants. 

8. Venue is appropriate in this Court because one or more of the 

Defendants reside in or have their principal place of business within the boundaries 

of the Southern District of Florida, and because one or more Defendants reside in 

or have their principal place of business located in one of the counties within the 

province of the Fort Lauderdale Division of this Court. 

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GENERAL ALLEGATIONS

9. As part of its business, ACIC issues payment and performance bonds 

and stands as surety for construction contractors. 

10. In connection with its work, ASI, from time to time, required surety 

payment and performance bonds. 

11. To induce ACIC to issue payment and performance bonds on its 

behalf, ASI along with Antonio Arriaga, Marisol Arriaga and Geovanni Arriaga

(collectively referred to herein at times as the “Indemnitors”) entered into an 

indemnity agreement with ACIC. 

12. Specifically, on or about July 5, 2018, the Indemnitors each executed

a General Indemnity Agreement (“GIA”) in favor of ACIC, its affiliates, and its 

agents. A true and correct copy of the GIA is attached hereto and incorporated 

herein as Exhibit A.

13. The execution of the GIA, and the Indemnitors’ undertaking of the 

various responsibilities and obligations contained therein, were absolute conditions 

precedent and prerequisites to ACIC issuing any bonds naming ASI as a principal. 

14. According to the GIA, the Indemnitors agreed, among other things, to: 

[J]ointly and severally exonerate, indemnify, keep indemnified, 

reimburse and save and hold [ACIC] harmless from and against any 

and all demands, liabilities, losses, costs, damages, attorneys’ fees and 

expenses, investigative fees and expenses, accountants’ fees and 

expenses, engineering and other professional or consultants’ fees and 

expenses of any kind, in-house attorneys’ fees and expenses, interest, 

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court costs and any and all other types of losses, costs or expenses of 

whatsoever kind or nature, and from and against all such losses, costs 

or expenses which [ACIC] may sustain or incur or which arise by 

reason of or in any manner in consequence of, no matter how 

remotely, any one or more of the following: the execution or 

procurement by [ACIC] of any Bond; the failure of any Principal or 

Indemnitor to perform or comply with any and all of the terms, 

covenants and conditions of this Agreement; the enforcement of any 

of the terms, covenants and conditions of this Agreement; the conduct 

of any investigation regarding [ACIC’s] alleged obligations or 

liabilities under any Bond or in connection with any Contract; any 

attempt by or on behalf of [ACIC] to obtain a release or reduction of 

[ACIC’s] liability or alleged liability under any Bond or Contract; any 

attempt by or on behalf of [ACIC] to recover any unpaid premium in 

connection with any Bond; the prosecution or defense of any action or 

claim of whatsoever kind or nature in connection with any Bond or 

Contract whether [ACIC], in its sole and absolute discretion, elects to 

employ its own counsel or, in lieu thereof or in addition thereto, 

permits or requires any Principal and/or Indemnitor to make 

arrangements for or assist in [ACIC’s] legal representation and 

protection; the loan or advance of any monies to any Principal or 

Indemnitor; [ACIC’s] attempt to determine, discharge or mitigate its 

loss or exposure to loss in connection with any Bond or Contract, or to 

enforce any of its rights pursuant to this Agreement, by suit or 

otherwise.

15. The Indemnitors further agreed in the GIA that:

[ACIC] shall have the right, in its sole and absolute discretion, to 

adjust, settle, prosecute, defend, compromise, litigate, protest, or 

appeal any claim, demand, suit, award, assessment or judgment on or 

in connection with any Bond or Bonded Contract. 

...

In the event of any payment of any kind by [ACIC], the Principal and 

Indemnitor further agree that the liability of the Principal and the 

Indemnitor shall extend to and include, and [ACIC] shall be entitled to 

charge and recover for, any and all disbursements made by it in Good 

Faith under the belief that: (I) any Principal or Indemnitor is or has 

been in default under or pursuant to this Agreement; or (2) [ACIC] 

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was or might be liable to pay the claims asserted or the sums paid, 

whether or not such liability actually existed; or (3) such payments 

were or are necessary or expedient, in [ACIC’s] sole and absolute 

discretion, to protect any of [ACIC’s] rights or interests or to avoid or 

lessen [ACIC’s] liability or alleged liability, whether or not such 

liability, necessity or expediency actually existed; and the Principal

and Indemnitor further agree, acknowledge and stipulate that, 

notwithstanding the foregoing or any other provision of this 

Agreement or any other agreement relating to this Agreement, [ACIC] 

shall be entitled to the rights and remedies set forth in this Section III, 

and to all of the benefits of this Agreement, with respect to any 

liability, payment, loss or cost that is incurred or made by [ACIC] in 

Good Faith.

16. The GIA is unequivocal and specific in setting forth the 

Indemnitors’ obligations to:

exonerate, indemnify, keep indemnified, reimburse and save and hold 

[ACIC] harmless from and against any and all demands, liabilities, 

losses, costs, damages, attorneys’ fees and expenses of any kind, inhouse attorneys’ fees and expenses, interest, court costs and any and 

all other types of losses, costs or expenses of whatsoever kind or 

nature. 

17. ASI thereafter entered into multiple subcontracts (collectively, the 

“Subcontracts”) for which it required payment and performance bonds. 

Specifically, ASI entered into four (4) separate Subcontracts1 with Ortega 

Construction Company, LLC (“Ortega”) to perform certain sequenced concrete 

formwork on floors 2-5 of a construction project commonly referred to as The 

Fairchild- 3581 E Glenco St., Miami, FL (the “Project”).

 

1 ASI also entered into 3 additional subcontracts with Ortega on the Project that 

were not bonded by ACIC.

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18. At the Indemnitors’ request, and in consideration of the Indemnitors’ 

promise to comply with the various terms and conditions of the GIA, ACIC agreed 

to issue the following payment and performance bonds numbered 1001119257, 

1001119304, 1001119316, 1001119328 (collectively, the “Bonds”) naming ASI as 

principal and Ortega as the obligee. Copies of the Bonds are attached hereto and 

incorporated herein as Composite Exhibit B. 

19. ACIC has received numerous claims against the Bonds, including: (a) 

Ortega making claims under the performance bonds based on ASI’s allegedly 

defective or incomplete work on the Project; (b) an indemnity demand by Ortega 

pursuant to a Fair Labor Standards Act lawsuit (the “FLSA Suit”) filed by laborers 

on the Project against Arriaga and Ortega in which Ortega demanded that, pursuant 

to the terms of the performance bonds and incorporated bonded Subcontracts,

ACIC settle the plaintiffs’ claims in the FLSA suit and reimburse Ortega for the 

fees and costs it incurred in defense of the FLSA Suit (the “Indemnity Claims”). 

The claims referenced in subparts a-b are sometimes collectively referred to herein 

as the “Claims.” 

20. As a result of ASI’s failure or refusal to fulfill its performance and/or 

payment obligations on the Project, ACIC was forced to hire consultants and the 

undersigned attorneys to respond to, investigate, defend against, and sometimes 

resolve the various Claims. 

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21. To date, ACIC has incurred, and will continue to incur, significant 

losses as a result issuing the Bonds, which losses include: (1) payments made to 

satisfy the Indemnity Claims; (2) attorneys’ fees, consultants’ fees, costs and 

expenses incurred as a result of or in connection with responding to, investigating, 

and defending against the Claims; and (3) attorneys’ fees, consultants’ fees, costs, 

and expenses attempting to enforce ACIC’s indemnity and other rights against the 

Indemnitors.

22. Before filing this action, ACIC demanded that the Indemnitors 

indemnify it for all amounts and losses it has incurred as a result of issuing the 

Bonds in the amount of $223,554.00. A true and correct copy of ACIC’s demand, 

and its prior indemnity demands are attached hereto and incorporated herein as 

Composite Exhibit C. 

23. After ACIC’s demand, ACIC has incurred additional attorneys’ fees, 

costs, and expenses as a result of investigating the numerous allegations and claims 

referenced above and ACIC’s potential exposure with regard to the Project, which 

are also recoverable from the Indemnitors. 

24. Despite ACIC’s demand, the Indemnitors have failed and/or refused 

to comply with ACIC’s request for indemnification for the losses ACIC has 

suffered as a result of issuing the Bonds. 

25. The Indemnitors have not reimbursed ACIC for payments made to 

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satisfy certain of the Claims against the Bonds, or for the attorneys’ fees, 

consultants’ fees, costs and other expenses that ACIC has incurred as a result of 

issuing the Bonds. 

26. As a result, ACIC has retained the undersigned attorneys to represent 

it in this action. ACIC is obligated to pay these attorneys a reasonable fee for their 

services rendered and such fees must be reimbursed by the Indemnitors under the 

GIA. The fees, costs, and expenses that ACIC incurs relating to bringing and 

maintaining this action are separate from the fees, costs, and expenses that ACIC

incurred as part of responding to, investigating, defending against and, at times, 

resolving certain claims on the Bonds and/or the allegations of default on the 

Project, and other events leading up to the filing of this Complaint.

27. All conditions precedent to maintaining this action have occurred, 

been excused, or otherwise been waived.

COUNT I

(Breach of Contract/Contractual Indemnity)

28. ACIC realleges and incorporates paragraphs 1 through 27 above as 

though fully set forth herein.

29. The GIA is unequivocal and specific in setting forth the Indemnitors’ 

obligations to:

exonerate, indemnify, keep indemnified, reimburse and save and hold 

[ACIC] harmless from and against any and all demands, liabilities, 

losses, costs, damages, attorneys’ fees and expenses, investigative fees 

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and expenses, accountants’ fees and expenses, engineering and other 

professional or consultants’ fees and expenses of any kind, in-house 

attorneys’ fees and expenses, interest, court costs and any and all 

other types of losses, costs or expenses of whatsoever kind or nature.

30. The Indemnitors have committed various breaches and defaults of the 

GIA, including, but not limited to: (1) failing and/or refusing to resolve or pay the 

Claims; and (2) failing and/or refusing to indemnify and keep ACIC indemnified 

from any and all liability for losses and expenses of whatsoever kind or nature that 

ACIC incurred, or may incur, relating to claims made on the Bonds. 

31. As a result of the Indemnitors’ breaches and defaults of the GIA, 

ACIC has suffered damages, including, but not limited to, the following damages: 

(1) payments made to satisfy the Indemnity Claims; and (2) attorneys’ fees, 

consultants’ fees, costs, and other expenses that ACIC has incurred as a result of 

issuing the Bonds and the Claims made on the same. 

32. ACIC is entitled to an award of its attorneys’ fees and costs in 

pursuing this claim according to the GIA.

WHEREFORE, ACIC demands judgment against the Indemnitors, jointly 

and severally, for damages, prejudgment interest, attorneys’ fees, costs and 

expenses, and such further relief as this Court deems just and proper. 

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COUNT II

(Common Law Indemnity)

33. ACIC realleges and incorporates paragraphs 1 through 10, 17 through 

25, and 27 above as though fully set forth herein.

34. ACIC is without fault for any past, present, or future claims against it 

as surety for ASI. 

35. ACIC had a special relationship with ASI by virtue of issuing the 

Bonds and acting as ASI’s surety. 

36. ACIC’s liability under the Bonds, if any, is merely technical, 

secondary, and vicarious to that of ASI, which is actively and completely at fault 

for, and obligated to timely pay, any underlying liability on the Bonds, including, 

without limitation, any liability for the Claims. 

37. As a direct and proximate result of ASI’s failure to honor its 

obligations, ACIC has incurred and continues to incur damages, losses and 

expenses, including attorneys’ and consultants’ fees, costs and expenses, by reason 

of having executed the Bonds. 

38. ASI is liable to ACIC for all damages ACIC sustained or may sustain 

by reason of having acted as surety for ASI, including, without limitation, all 

payments ACIC has made to satisfy certain of the Claims, and all attorneys’ and 

consultants’ fees ACIC incurs as a result of issuing the Bonds. 

39. ACIC’s damages will continue to increase as ACIC incurs future 

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losses and costs, including attorneys’ fees. 

40. ACIC is entitled to receive its reasonably incurred attorneys’ fees 

pursuant to applicable law. 

WHEREFORE, ACIC requests that this Court enter judgment against ASI

for damages, attorneys’ fees, prejudgment interest, costs, expenses, and such 

further relief as this Court deems just and proper. 

COUNT III

(Equitable Subrogation against the Indemnitors)

41. ACIC realleges and incorporates paragraphs 1 through 10, 17 through 

25, and 27 above as though fully set forth herein.

42. ACIC was forced to pay a portion of the Claims after ASI and/or the 

Indemnitors failed and/or refused to do so. 

43. ASI and/or the Indemnitors were primarily liable for the Claims under 

the terms of their Subcontracts and the Bonds.

44. ACIC’s liability was merely technical, secondary, and vicarious to 

that of ASI and/or the Indemnitors, which were actively and completely at fault for 

the underlying liability for the Claims.

45. ASI, as principal on the various Bonds, was required to pay the 

Claims.

46. ACIC, having paid to settle the various Claims, is equitably 

subrogated to the rights against ASI and/or the Indemnitors.

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47. ACIC’s payments for the Claims were a result of its obligations under 

the Bonds and to protect its own interests, not as a volunteer.

48. ACIC satisfied the entire amount due and owing relating to the 

respective bond that ACIC issued.

49. Neither the Indemnitors nor any other third-parties’ rights will be 

harmed by ACIC’s subrogation to the rights for the Claims paid.

50. ACIC’s damages include, but are not limited to, all sums ACIC has 

paid to settle the Claims and ACIC’s costs and fees incurred to pursue this action.

WHEREFORE, ACIC demands judgment against the Indemnitors for 

damages, court costs, prejudgment interest, attorneys’ fees, and such other relief as 

this Court deems just and proper.

COUNT IV

(Exoneration against the Indemnitors)

51. ACIC realleges and incorporates paragraphs 1 through 10, 17 through 

25, and 27 above as though fully set forth herein.

52. ASI has allegedly been unable and/or unwilling to satisfy its 

obligations on the construction Project to which the Bonds relate by, in part, failing 

to pay various Claims.

53. ACIC is not attempting to avoid its secondary liability for any of the 

Claims for the reasonable value of labor, material, services and/or equipment 

provided on the Project.

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54. Instead, ACIC demands that ASI be compelled to fulfill its obligations 

to ACIC by satisfying the Claims paid and indemnifying ACIC.

55. Under the doctrine of exoneration, ACIC is entitled to have ASI

exonerate it for all amounts ACIC has paid and/or incurred as a result of issuing 

the Bonds, and is, therefore, entitled to an Order from this Court requiring 

Indemnitors to place funds or other security with ACIC, and for such further 

amounts as appropriate.

WHEREFORE, ACIC requests that this Court enter an Order compelling 

ACIC and Indmenitors to exonerate ACIC by fulfilling its primary obligations to 

for the Claims and to place ACIC in funds sufficient to reimburse it for the losses 

ACIC has already suffered.

Dated: June 4, 2020.

/s/ S. Jordan Miller

S. Jordan Miller, Esq.

Florida Bar No. 69998

MILLS PASKERT DIVERS, P.A. 

100 North Tampa Street, Suite 3700

Tampa, Florida 33602

(813) 229-3500 Telephone

(813) 229-3502 Facsimile

jmiller@mpdlegal.com

Attorneys for American Contractors 

Indemnity Company

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