UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO.: ______________________ 

FRANKENMUTH MUTUAL INSURANCE 

COMPANY, a Michigan corporation 

Plaintiff, 

v. 

AMERICAN PIPELINE CONSTRUCTION, 

LLC, a Florida limited liability company, 

MARCIO VIEIRA, individually, ERIKA 

VIEIRA, individually, ANDRES LUNA, 

individually, and SUZANNE LUNA, individually, 

Defendants. 

______________________________________/ 

COMPLAINT FOR DAMAGES, 

INJUNCTIVE AND OTHER EQUITABLE RELIEF 

Plaintiff, FRANKENMUTH MUTUAL INSURANCE COMPANY, by and through its 

undersigned counsel, hereby sues Defendants, AMERICAN PIPELINE CONSTRUCTION, LLC, 

MARCIO VIEIRA, ERIKA VIEIRA, ANDRES LUNA and SUZANNE LUNA, and states as 

follows: 

I. PARTIES, JURISDICTION AND VENUE 

1. This is an action for declaratory relief and supplemental relief under 28 U.S.C. 

§2201 and 2202. 

2. Subject matter jurisdiction is based upon 28 U.S.C. §1332(a)(1), diversity of 

citizenship. The parties are citizens of different states and the amount in controversy exceeds the 

sum of Seventy-Five Thousand and 00/100 Dollars ($75,000.00), exclusive of interest, costs and 

attorney’s fees. 

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3. Plaintiff, FRANKENMUTH MUTUAL INSURANCE COMPANY (“FMIC”), is 

a corporation organized and existing under the laws of the State of Michigan, with its principal 

place of business in Frankenmuth, Michigan who is otherwise authorized to do business within the 

State of Florida. FMIC is a citizen of the State of Michigan. 

4. Defendant, AMERICAN PIPELINE CONSTRUCTION, LLC (“APC”), is a 

limited liability corporation organized and existing under the laws of the State of Florida, whose 

principal place of business is located in North Miami Beach, Miami-Dade County, Florida. In 

accordance with APC’s Operating Agreement dated July 23, 2019, APC’s “members” consist of 

MARCIO VIERA and ANDRES LUNA, who reside in Hillsborough County and Miami-Dade 

County, Florida, thereby rendering APC a citizen of the State of Florida. 

5. Defendant, MARCIO VIEIRA, is an individual who resides in Hillsborough 

County, Florida, and who is otherwise sui juris. 

6. Defendant, ERIKA VIERIRA, is an individual who resides in Hillsborough 

County, Florida, and who is otherwise sui juris. 

7. Defendant, ANDRES LUNA, is an individual who resides in Miami-Dade County, 

Florida and who is otherwise sui juris. 

8. Defendant, SUZANNE LUNA, is an individual who resides in Miami-Dade 

County, Florida and who is otherwise sui juris. 

9. Venue is proper in this Court because it is the situs where the legal obligation arose, 

where APC operated and conducted its business which gives rise to the instant claims, and where 

certain of the Defendants reside. 

10. All conditions precedent to the filing of the instant action have occurred or have 

otherwise been waived. 

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II. GENERAL ALLEGATIONS 

A. The Bonded Contracts and the Bonds 

11. FMIC is engaged in the business of providing surety bonds. 

12. APC entered into contracts with several municipalities and/or obligees requiring 

APC to perform certain underground utility work and other improvements on various construction 

projects. In connection with those contracts, FMIC, as surety, issued the following Payment and 

Performance Bonds (collectively, the “Bonds”) on behalf of APC and in favor of the various listed 

obligees: 

Obligee Project Bond No. 

Florida City Pump Station Number 8 SUR0001577 

Miami-Dade County RPQ No: Po236 -Replacement of 48lN 

Butterfly Valve and Actuator on 

Hydrotreaters 

SUR0003202 

City of Miami ITB No. 19-20-009 NW 24th Ave., NW 

25th Ave., and NW 32nd Ave. Street Road 

Improvements, D1-Project 

SUR0003213 

Manatee County Coquina Beach Drainage Improvements, 

Phase II SUR0003246 

City of Tarpon 

Springs Pent Street & Grosse Avenue Drainage & 

Roadway Improvements Project 

SUR0003252 

Sarasota County Bahia Vista Parallel Force Main SUR0003254 

Lead Engineering 

Contractors, LLC SR-9 (I-95) at Copans Road Interchange 

Project 

SUR0003255 

City of Tampa Sunset Park Water Main Replacement 

(West) Project 

SUR0004129 

Miami-Dade County Drainage Improvements SUR0002724 

 

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B. The Indemnity Agreement

13. As a condition to issuing the Bonds, FMIC required each of APC, MARCIO 

VIEIRA, ERIKA VIEIRA, ANDRES LUNA and SUZANNE LUNA (collectively, the 

“INDEMNITORS”) to execute the General Agreement of Indemnity executed on May 4, 2020, 

May 5, 2020, and May 14, 2020 (the “Indemnity Agreement”). A true and correct copy of the 

Indemnity Agreement is attached hereto and made a part hereof as Exhibit “A”. 

14. Pursuant to Articles 3 and 5 of the Indemnity Agreement, the INDEMNITORS, 

jointly and severally, agreed to indemnify, hold harmless and exonerate FMIC from and against 

any and all losses and/or expenses incurred in connection with FMIC’s issuance of the Bonds:

Indemnification and Hold Harmless: Indemnitors shall exonerate, 

indemnify and save Company harmless from and against all Loss. An 

itemized, sworn statement by an employee of Company, or other evidence 

of payment, shall be prima facie evidence of the propriety, amount and 

existence of Indemnitors’ liability. Amounts due to Company shall be 

payable upon demand. 

* * * 

... In addition to the foregoing, Indemnitors shall promptly, on 

Company’s written demand, procure the full and complete discharge of 

Company from all Bonds demanded by Company and all liability in 

connection with such Bonds. If Indemnitors are unable to obtain such 

discharge within the time demanded, Indemnitors shall promptly deposit 

with Company an amount of money that Company determines is sufficient 

to collateralize or pay any outstanding bonded obligations, or otherwise 

make provisions acceptable to Company for the funding of the bonded 

obligations (Emphasis supplied). 

15. Pursuant to Article 5 of the Indemnity Agreement, the INDEMNITORS agreed to 

deposit with FMIC collateral security: 

Collateral Security: Indemnitors agree to deposit with Company, upon 

demand, funds, other collateral security acceptable to the Company, in an 

amount as determined by Company sufficient to discharge any Loss or 

anticipated Loss. Indemnitors further agree to deposit with Company, upon 

demand, an amount equal to the value of any assets or Contract funds 

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improperly diverted by any Indemnitor. Sums deposited with Company 

pursuant to this paragraph may be used by Company to pay such claim or 

to be held by Company as collateral security against any Loss or unpaid 

premium on any Bond. Indemnitors agree that Company would suffer 

irreparable damage and would not have an adequate remedy at law if 

Indemnitors fail to comply with the provisions of this paragraph... 

(Emphasis added) 

16. Pursuant to Article 7 of the Indemnity Agreement, the INDEMNITORS, jointly and 

severally, agreed that their failure to comply with the collateral obligations of the Indemnity 

Agreement would result in irreparable harm to FMIC, which would not be sufficiently addressed 

by a monetary award, and which would entitle FMIC to injunctive relief: 

... The failure of Indemnitors, collectively or individually, to perform or 

comply with any provision of this Agreement shall cause irreparable 

harm to Company for which Company has no adequate remedy at law. 

Company shall be entitled to injunctive relief and/or specific performance, 

and Indemnitors waive any claims or defenses to the contrary.” (Emphasis 

added) 

17. Pursuant to Article 12 of the Indemnity Agreement, the INDEMNITORS, jointly 

and severally, obligated themselves to provide such books, records and accounts as may be 

requested by FMIC in connection with the claims against the Bonds, as well as related to the 

instant indemnity demands: 

Books, Records and Credit: Indemnitors shall furnish upon demand, 

and Company shall have the right of free access to, at reasonable times, the 

records of Indemnitors including, but not limited to, books, papers, 

records, documents, contracts, reports, financial information, accounts 

and electronically stored information, for the purpose of examining and 

copying them. Indemnitors expressly authorize Company to access their 

credit records, including, but not limited to, account numbers and/or 

account balances from financial institutions.... (Emphasis added) 

18. Pursuant to Article 4 of the Indemnity Agreement, the INDEMNITORS, jointly and 

severally, agreed that FMIC shall have the right to settle any claims against the Bonds, in its sole 

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and absolute discretion, and that any amounts expended in connection with such settlements 

would be the liability and responsibility of the INDEMNITORS: 

Claim Settlement: Company shall have the right, in its sole discretion, to 

determine for itself and Indemnitors whether any claim, demand or suit 

brought against Company or any Indemnitor in connection with, arising 

out of, or relating to any Bond or Contract shall be paid, compromised, 

settled, tried, defended or appealed, and its determination shall be final, 

binding and conclusive upon the Indemnitors. Company shall be entitled to 

immediate reimbursement of any and all Loss incurred under the belief that 

it was necessary or expedient to make such payments. (Emphasis added) 

19. Pursuant to Article 22 of the Indemnity Agreement, the INDEMNITORS, jointly 

and severally, waived any right to trial by jury of the matters set forth herein.

20. The Indemnity Agreement constitutes a valid and fully enforceable contract 

between FMIC and the INDEMNITORS.

21. FMIC has fully performed all of its obligations under the Indemnity Agreement. 

C. Bond Claims Upon FMIC 

i. Florida City (Performance and Payment Bond Claims) 

22. FMIC, as surety, issued a separate Performance Bond and Payment Bond, each 

bearing no. SUR001577, on behalf of APC, as principal, with Florida City, as obligee, on the 

project commonly known as “Pump Station Number 8” (the “Florida City Project”).

23. Florida City asserted a claim against FMIC under the Florida City Performance 

Bond, alleging that APC did not complete its obligations. Florida City terminated APC’s contract, 

made demand upon FMIC, and advise that Florida City would retain other contractors to compete 

APC’s obligations. Florida City has not yet confirmed the cost to complete APS’s obligations 

but intends to utilize the remaining contract balances to perform APC’s obligations. As such, to 

date, the potential loss under the Florida City Performance Bond remains undetermined. 

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24. FMIC received claims under the Florida City Payment Bond from various of APC’s 

subcontractors and suppliers, claiming non-payment for goods and/or services on the Florida City

Project, the status of which is as follows:

Claimant Amount Paid Comment 

I&C Earthmovers $8,204.08 N/A Pending 

Ferguson Waterworks $1,566.66 N/A Pending 

Subtotal $9,770.74 $0.00 

25. FMIC remains potentially liable under the Florida City Payment Bond for the 

pending claims in the amount of $9,770.74, as well as any other and further claims as may be made 

against the Florida City Payment Bond. 

26. FMIC consented to Florida City issuing payment directly to APC in the amount of 

$46,620.44, as APC committed to issuing payment to its subcontractors and suppliers once Florida 

City released the payment to APC. Despite APC’s commitment, APC received Florida City’s 

payment but did not pay the subcontractors and suppliers on the Florida City Project.

ii. Miami-Dade County / Butterfly Valve (Payment Bond Claims Only) 

27. FMIC, as surety, issued a separate Performance Bond and Payment Bond, each 

bearing no. SUR0003202, on behalf of APC, as principal, with Miami-Dade County, as obligee, 

on the project commonly known as “RPQ No. P0236 – Replacement of Butterfly Valve Project 

(the “Butterfly Valve Project”). 

28. FMIC received claims under the Butterfly Valve Payment Bond from various of 

APC’s subcontractors and suppliers, claiming non-payment for goods and/or services on the 

Butterfly Valve Project, the status of which is as follows:

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Claimant Amount Paid Comment 

I&C Earthmovers $21,402.83 N/A Pending 

Ferguson Waterworks $115,417.24 $115,417.24 Settled 

Subtotal $136,820.07 $115,417.24 

29. FMIC has sustained a loss in the amount of $115,417.24 in connection with the 

Butterfly Valve Payment Bond, plus any applicable loss adjustment expenses. 

30. FMIC remains potentially liable under the Butterfly Valve Payment Bond for the 

pending claim in the amount of $21,402.83, as well as any other and further claims as may be 

made against the Butterfly Valve Payment Bond. 

iii. City of Miami (Payment Bond Claims Only) 

31. FMIC, as surety, issued a separate Performance Bond and Payment Bond, each 

bearing no. SUR0003213, on behalf of APC, as principal, with the City of Miami, as obligee, on 

the project commonly known as “NW 24th, NW 25th Ave., and NW 32nd Street Road 

Improvements, D1 Project” (the “N.W. 24th Ave. Project”). 

32. FMIC received claims under the N.W. 24th Ave. Payment Bond from various of 

APC’s subcontractors and suppliers, claiming non-payment for goods and/or services on the N.W. 

24th Ave. Project, the status of which is as follows:

Claimant Amount Paid Comment 

I&C Earthmovers $80,835.52 N/A Pending 

Fast Concrete Co. $5,193.42 N/A Resolved by 

another indemnitor 

which is not a party 

to this lawsuit 

Core & Main $28,211.36 

revised to 

$19,780.01 

N/A Resolved by 

another indemnitor 

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which is not a party 

to this lawsuit

Eagle Carriers of South 

Florida 

$12,489.20 N/A Resolved by 

another indemnitor 

which is not a party 

to this lawsuit 

Ferguson Enterprises $75,815.91 N/A Resolved by 

another indemnitor 

which is not a party 

to this lawsuit 

Tate Transport $21,639.00 N/A Resolved by 

another indemnitor 

which is not a party 

to this lawsuit

Subtotal $215,753.06 $0.00 

33. FMIC remains potentially liable for the pending claim under the N.W. 24th Ave. 

Payment Bond in the amount of $80,835.52, as well as any other and further claims as may be 

made against the N.W. 24th Ave. Payment Bond.

iv. Manatee County (Performance and Payment Bond Claims) 

34. FMIC, as surety, issued a Public Construction Bond, bearing no. SUR0003246 and 

containing combined Performance Bond and Payment Bond obligations, on behalf of APC, as 

principal, with Manatee County, as obligee, on the project commonly known as “Coquina Beach 

Drainage Improvements, Phase II” (the “Coquina Beach Project”). 

35. Manatee County asserted a claim against FMIC under the Coquina Beach

Performance Bond, and subsequently advised that it would utilize the remaining contract balances 

to complete APC’s obligations. A final accounting of the costs incurred by Manatee County to 

complete APC’s contract has not yet been received. As such, to date, the potential loss under the 

Coquina Beach Performance Bond remains undetermined. 

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36. FMIC received claims under the Coquina Beach Payment Bond from various of 

APC’s subcontractors and suppliers, claiming non-payment for goods and/or services on the 

Coquina Beach Project, the status of which is as follows:

Claimants Amounts Paid Comment 

Synergy Rents $5,213.97 $5,213.97 Settled 

Allied Trucking $7,953.80 $11,532.39* Settled 

Cemex Construction $12,218.42 N/A Pending 

One2PH $22,460.00 N/A Pending 

Charger Enterprises $103,324.78 $17,412.11 Settled 

Amroad, LLC $8,459.80 N/A Pending 

Core & Main $6,953.39 N/A Pending 

Ram Tool $12,210.00 N/A Pending 

Fuzion Project $67,800.00 N/A Pending 

Trico Direct Inc. d/b/a Seton $21,702.00 $16,515.26 Settled 

Ferguson Enterprises, Inc. $18,556.22 $24,912.57* Settled 

Subtotal $286,852.38 $75,586.30 

 * Settled lawsuit which included claim for fees, interest and costs

37. FMIC has sustained a loss in the amount of $75,586.30 in connection with the 

Coquina Beach Payment Bond, plus any applicable loss adjustment expenses. 

38. FMIC remains potentially liable under the Coquina Beach Payment Bond for the 

pending claims totaling $211,266.08, as well as any other and further claims as may be made 

against the Coquina Beach Payment Bond. 

v. City of Tarpon Springs (Performance and Payment Bond Claims) 

39. FMIC, as surety, issued a separate Performance Bond and Payment Bond, each 

bearing no. SUR0003252, on behalf of APC, as principal, with the City of Tarpon Springs, as 

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obligee, on the project commonly known as “Pent Street & Grosse Avenue Drainage & Roadway 

Improvements Project” (the “Tarpon Springs Project”).

40. City of Tarpon Springs asserted a claim against FMIC under the Tarpon Springs 

Performance Bond. FMIC is seeking a completion contractor to perform the work remaining on 

APC’s contract. As such, to date, the potential loss under the Tarpon Springs Performance Bond

remains undetermined.

41. FMIC received the following claims under the Tarpon Springs Payment Bond from 

various of APC’s subcontractors and suppliers, claiming non-payment for goods and/or services 

on the Tarpon Springs Project, the status of which is as follows:

Claimants Amount Paid Comment 

Rinker Materials $142,281.00 $98,155.21 Settled 

Bob’s Barricades $3,314.00 $2,571.64 Settled 

Holland Pump $21,478.00 $11,674.50 Settled 

Concrete Products $43,007.00 N/A Pending 

I&C Earthmovers $93,319.56 N/A Pending 

Action Rentals $9,807.13 $9,807.13 Settled 

CTI Construction Testing $21,750.65 N/A Pending 

Allied Trucking $99,042.35 N/A Pending 

Subtotal $433,999.69 $122,208.48 

42. FMIC has sustained a loss in the amount of $122,208.48 in connection with the 

Tarpon Springs Payment Bond, plus any applicable loss adjustment expenses. 

43. FMIC remains potentially liable under the Tarpon Springs Payment Bond for the 

pending claims, totaling the amount of $311,791.21, as well as any other and further claims as 

may be made against the Tarpon Springs Payment Bond. 

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vi. Sarasota County (Performance and Payment Bond Claims) 

44. FMIC, as surety, issued a Performance and Payment Bond, bearing no. 

SUR0003254, on behalf of APC, as principal, with Sarasota County, as obligee, on the project 

commonly known as “Bahia Vista Parallel Force Main Project” (the “Bahia Vista Project”).

45. Sarasota County asserted a claim against FMIC under the Bahia Vista Performance 

Bond. FMIC is seeking a completion contractor to perform the work remaining on APC’s contract 

with Sarasota County. As such, to date, the potential loss under the Bahia Vista Performance Bond

remains undetermined.

46. FMIC received claims under the Bahia Vista Payment Bond from various of APC’s 

subcontractors and suppliers, claiming non-payment for goods and/or services on the Bahia Vista

Project, the status of which is as follows:

Claimants Amount Paid Comment 

Bob’s Barricades $14,215.00 $19,796.30* Settled 

Fortiline $1,151,831.00 N/A Pending 

Anixter $26,036.00 N/A Pending 

Synergy Rents $17,329.26 $17,329.26* Settled 

Holland Pump $65,660.85 $65,660.85* Settled 

One2PH $66,756.00 N/A Pending 

McShea Contracting, LLC $2,220.00 $2,220.00* Settled 

I&C Earthworks $50,188.00 N/A Pending 

Oldcastle Infrastructure, Inc. $85,948.34 N/A Pending 

TB Landmark Construction $109,927.01 N/A Pending 

Sunbelt Rentals $11,902.89 N/A Pending 

Vulcan Materials $56,058.95 $50,000.00 Settled 

Allied Trucking $57,603.12 $74,000.00 Settled 

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Subtotal $1,715,676.42 $229,006.41 

* Settled lawsuit which included claim for fees, interest and costs

47. FMIC has sustained a loss in the amount of $229,006.41 in connection with the 

Bahia Vista Payment Bond, plus any applicable loss adjustment expenses. 

48. FMIC remains potentially liable under the Bahia Vista Payment Bond for the 

pending claims, totaling the amount of $1,486,670.01, as well as any other and further claims as 

may be made against the Bahia Vista Payment Bond.

vii. Lead Engineering Contractors, LLC (Payment Bond Claims Only) 

49. FMIC, as surety, issued a separate Subcontractor Surety Performance Bond and 

Subcontractor Surety Payment Bond, each bearing no. SUR0003255, on behalf of APC, as 

principal, with Lead Engineering Contractors, LLC (“Lead”), as obligee, on the project commonly 

known as “SR 9 (I-95) at Copans Road Interchange Project (the “Copans Road Project”).

50. FMIC received the following claims under the Copans Road Payment Bond from 

various of APC’s subcontractors and suppliers, claiming non-payment for goods and/or services 

on the Copans Road Project, the status of which is as follows:

Claimants Amounts Paid Comment 

United Rentals $7,309.30 N/A Pending 

A Falero Trucking $42,478.28 N/A Pending 

I&C Earthmovers $11,810.56 N/A Pending 

Concrete Products of the 

Palm Beaches 

$12,664.88 N/A Pending 

Subtotal $74,263.02 $0.00 

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51. FMIC remains potentially liable under the Copans Road Payment Bond for the 

pending claims, totaling $74,263.02, as well as any other and further claims as may be made 

against the Copans Road Payment Bond. 

52. Despite APC confirming in November 2021 that all contract balances on the 

Copans Road Project were to be deposited into an escrow account, Lead paid $33,139.69 directly 

to APC. APC, in turn, neither deposited the bonded contract funds into the escrow account nor 

paid subcontractors or suppliers on the Copans Road Project. 

viii. City of Tampa (Performance and Payment Bond Claims) 

53. FMIC, as surety, issued a Public Construction Bond, bearing no. SUR0004129 and 

containing combined Performance Bond and Payment Bond obligations, on behalf of APC, as 

principal, with the City of Tampa, as obligee, on the project commonly known as “Sunset Water 

Main Replacement (West)” (the “Sunset Park Project”). 

54. City of Tampa asserted a claim against FMIC under the Sunset Park Performance 

Bond. FMIC is in the process of contracting with a completion contractor at a cost in excess of 

$4,311,520.00. As such, to date, the potential loss under the Sunset Park Performance Bond

remains undetermined. 

55. FMIC received the following claims under the Sunset Park Payment Bond from 

various of APC’s subcontractors and suppliers, claiming non-payment for goods and/or services 

on the Sunset Park Project, the status of which is as follows: 

Claimants Amount Paid Comment 

Coll Construction $66,240.00 N/A Case Dismissed 

Cornerstone Barricades Amount Not 

Identified 

N/A Pending 

Vulcan Construction $1,668.00 N/A Pending 

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Mondragon Paving LLC $47,591.75 $47,591.75 Settled 

Preferred Materials $27,409.00 $27,409.00 Settled 

CTI Construction Testing $43,667.88 N/A Pending 

Allied Trucking of Central 

Florida, LLC 

$20,276.89 $25,526.77* Settled 

Subtotal $206,853.52 $100,527.52 

* Settled lawsuit which included claim for fees, interest and costs

56. FMIC has sustained a loss in the amount of $100,527.52 in connection with the 

Sunset Park Payment Bond, plus any applicable loss adjustment expenses. 

57. FMIC remains potentially liable under the Sunset Park Payment Bond for the 

pending claims, totaling $106,326.00 (plus Cornerstone Barricades’ “TBD” claim amount), as 

well as any other and further claims as may be made against the Sunset Park Payment Bond.

ix. Miami-Dade County / Drainage (Payment Bond Claims Only) 

58. FMIC, as surety, issued a Surety Performance and Payment Bond bearing no. 

SUR0002724 and containing combined Performance Bond and Payment Bond obligations, on 

behalf of APC, as principal, with the Miami-Dade County as obligee, on the project commonly 

known as “Drainage Improvements (the “Drainage Improvements Project”). 

59. FMIC received claims under the Drainage Improvements Payment Bond from 

various of APC’s subcontractors and suppliers, claiming non-payment for goods and/or services 

on the Drainage Improvements Project, the status of which is as follows: 

Claimants Amount Paid Comment 

Action Rental MIA, LLC $10,043.91 N/A Pending 

SF Land Surveyors $8,470.00 $6,070.00 Partially Settled 

Subtotal $18,513.91 $6,070.00 

 

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60. FMIC has sustained a loss in the amount of $6,070.00 in connection with the 

Drainage Improvements Payment Bond, plus any applicable loss adjustment expenses. 

61. FMIC remains potentially liable under the Drainage Improvements Payment Bond 

for the pending claims, totaling $12,443.93, as well as any other and further claims as may be 

made against the Drainage Improvements Payment Bond.

D. FMIC’s Demands Against INDEMNITORS / FMIC’s Losses and Expenses 

62. As a result of the claims against the Bonds, FMIC engaged in several written and 

oral communications with the INDEMNITORS, seeking indemnity and collateralization under the 

Indemnity Agreement. 

63. On January 21, 2022, FMIC made demand upon the INDEMNITORS to indemnify 

FMIC and post collateral as a result of APC’s default on the Bahia Vista Project. A true and 

correct copy of the correspondence is attached hereto as Exhibit “B”. 

64. On February 23, 2022, FMIC reiterated its demand upon the INDEMNITORS to 

satisfy their indemnity and collateral obligations under the Indemnity Agreement. A true and 

correct copy of the correspondence is attached hereto as Exhibit “C”.

65. Additionally, FMIC has engaged in numerous other written communications with 

the INDEMNITORS (and their counsel in the various pending litigations) concerning the 

INDEMNITORS’ obligations to indemnify FMIC and post collateral in connection with the 

pending claims. 

66. Despite FMIC’s demands, the INDEMNITORS have failed and refused to 

indemnity FMIC or post collateral satisfactory to FMIC in compliance with their obligations under 

the Indemnity Agreement. 

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67. FMIC anticipates incurring additional losses and expenses in investigating, 

defending against and/or satisfying any liability which may ultimately be determined in connection 

with any existing/future claims against the Bonds. 

68. FMIC has retained the services of the undersigned counsel to represent its interests 

in this matter and is required to pay a reasonable fee for such services. 

COUNT I – BREACH OF CONTRACT: 

DAMAGES/DEMAND FOR INDEMNIFICATION 

(AGAINST INDEMNITORS) 

69. FMIC realleges and re-avers the allegations of paragraphs 1 through 68 hereof, as 

if fully set forth herein.

70. This is an action for damages seeking relief at law under the Indemnity Agreement.

71. There exists a valid and fully enforceable contract between FMIC and the 

INDEMNITORS, the terms of which are memorialized in the Indemnity Agreement.

72. As a result of the claim against the Bonds, FMIC has made demand upon the 

INDEMNITORS under the Indemnity Agreement for payment in satisfaction of the losses and 

expenses incurred by FMIC.

73. The INDEMNITORS have failed and/or refused to fully perform their obligations 

under the Indemnity Agreement, including but not limited to their obligation to indemnify FMIC.

74. As a proximate result of the INDEMNITORS’ breach of their obligations under the 

Indemnity Agreement, FMIC has and will continue to incur substantial financial damages, 

including but not limited to the expenditure of funds paid: (i) in investigation of the claims; (ii) in 

resolution of the claims; and/or (iii) in satisfaction of any liability which may ultimately be 

determined in connection with any existing/future claims against the Bonds.

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WHEREFORE, FMIC respectfully requests that this Honorable Court enter a Final 

Judgment in its favor and against the INDEMNITORS awarding FMIC: (a) its general, special and 

consequential damages which have been and/or will be incurred as a result of the 

INDEMNITORS’ breach of the Indemnity Agreement; (b) its attorneys’ fees and costs incurred 

in prosecution of the instant action pursuant to the terms of the Indemnity Agreement, and (c) such 

other and further relief as this Court deems necessary, just and proper. 

COUNT II – COMMON LAW INDEMNIFICATION

(AGAINST APC) 

75. FMIC realleges and re-avers the allegations of paragraphs 1 through 68 hereof, as 

if fully set forth herein.

76. This is an action for damages seeking relief at common law and in equity.

77. There exists a special relationship between FMIC, as surety, and APC, as principal, 

arising out of the business dealings of the parties related to the various bonded contracts, projects 

and Bonds, such that it is appropriate for common law indemnification to exist.

78. FMIC has fully and completely performed any and all obligations arising out of the 

business dealings between the parties related to the bonded contracts, projects and Bonds, and is 

wholly without fault for any losses, expenses and/or liabilities which have and/or may ultimately 

arise.

79. FMIC has incurred losses and loss adjustment expenses as a result of the special 

relationship between FMIC and APC. Additional indebtedness arising out of the special 

relationship has and will continue to accrue, including but not limited to the expenditure of funds 

paid: (i) in investigation of the claims; (ii) in resolution of the claims; and/or (iii) in satisfaction of 

any liability which may ultimately be determined in connection with any existing/future claims 

against the Bonds.

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80. Any and all losses and expenses incurred to date as a result of the special 

relationship between FMIC and APC, as well as any liability which may be imposed upon FMIC 

as a result of the pending claims against the Bonds, arise only out of the vicarious, constructive, 

derivative or technical liability imposed upon FMIC as a result of the fault and/or wrongdoing of 

APC.

81. At common law, APC is responsible to FMIC for any and all losses and expenses 

incurred or to be incurred.

WHEREFORE, FMIC respectfully requests that this Honorable Court enter a Final 

Judgment in its favor and against APC, awarding FMIC: (a) its general, special and consequential 

damages which have been and/or will be incurred as a result of FMIC’s payment of losses and 

expenses for which APC should be liable under the legal theory of common law indemnity; (b) its 

reasonable attorneys’ fees and costs incurred in prosecution of the instant action; and (c) such other 

and further relief as this Court deems necessary, just and proper. 

COUNT III - CONTRACTUAL EXONERATION 

(AGAINST INDEMNITORS) 

82. FMIC realleges and re-avers the allegations of paragraphs 1 through 68 hereof, as 

if fully set forth herein.

83. This is an action for contractual exoneration.

84. Pursuant to the terms of the Indemnity Agreement, each of the INDEMNITORS, 

jointly and severally, agreed to exonerate FMIC from and against any losses and or expenses 

incurred in connection with FMIC’s issuance of the Bonds.

85. By virtue of the right of exoneration set forth in the Indemnity Agreement, FMIC is 

entitled to the INDEMNITORS’ assets to protect FMIC from any and all additional losses and/or 

expenses which may be incurred in connection with FMIC’s issuance of the Bonds.

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86. The INDEMNITORS have failed to satisfy their obligations under the Indemnity 

Agreement by refusing to exonerate or otherwise place funds with FMIC sufficient to cover the 

actual losses and claim against the Bonds. 

87. Unless the personal assets of the INDEMNITORS are collateralized, FMIC will not 

be adequately secured for its obligation on the Bonds. 

WHEREFORE, FMIC respectfully requests that this Honorable Court enter a Final 

Judgment in its favor and against the INDEMNITORS: (a) requiring the INDEMNITORS to 

perform under the Indemnity Agreement and satisfy any and all pending claims under the Bonds 

which have not yet been paid by FMIC or, in the alternative, to post with FMIC satisfactory monies 

so as to protect FMIC from such future claims and/or liabilities; (b) directing the INDEMNITORS 

to pay and reimburse FMIC for its attorneys’ fees and costs incurred in prosecution of the instant 

action; and (c) awarding FMIC such other and further relief as this Court deems necessary, just 

and proper. 

COUNT IV - COMMON LAW EXONERATION 

(AGAINST APC) 

88. FMIC realleges and re-avers the allegations of paragraphs 1 through 68 hereof, as 

if fully set forth herein.

89. This is an action for exoneration at common law and in equity.

90. There exists a special relationship between FMIC, as surety, and APC, as principal, 

arising out of the parties’ business dealings related to the bonded contracts, projects and Bonds, 

such that it is appropriate for common law exoneration to exist.

91. FMIC has fully and completely performed any and all obligations arising out of the 

business dealings between the parties related to the bonded contracts, projects and Bonds, and is 

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wholly without fault for any losses, expenses and/or liabilities which have and/or may ultimately 

arise therefrom.

92. FMIC has incurred direct losses and loss adjustment expenses associated with its 

investigation, defense and/or handling of the claim against the Bonds. Additional indebtedness 

arising out of the special relationship will continue to accrue, including but not limited to the 

expenditure of funds paid: (i) in investigation of the claims; (ii) in resolution of the claims; and/or 

(iii) in satisfaction of any liability which may ultimately be determined in connection with any 

existing/future claims against the Bonds.

93. Any and all losses and expenses incurred to date as a result of the special 

relationship between FMIC and APC, as well as any liability which may be imposed upon FMIC 

as a result of the pending claim against the Bonds, arise only out of the vicarious, constructive, 

derivative or technical liability imposed upon FMIC as a result of the fault and/or wrongdoing of 

APC.

94. At common law, APC is responsible to FMIC for any and all losses and expenses 

incurred or to be incurred, and APC is further obligated to immediately provide FMIC with 

sufficient funds as needed to satisfy FMIC’s existing and potential obligations under the Bonds.

95. By virtue of the right of exoneration set forth at common law and in equity, FMIC 

is entitled to APC’s assets to protect FMIC from any and all losses and/or expenses which may be 

incurred in connection with FMIC’s issuance of the Bonds.

96. APC has failed to satisfy its obligations at common law and in equity by refusing 

to exonerate or otherwise place funds with FMIC sufficient to cover the actual losses and claim 

against the Bonds.

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97. Unless the personal assets of APC are collateralized, FMIC will not be adequately 

secured for its obligation on the Bonds. 

WHEREFORE, FMIC respectfully requests that this Honorable Court enter a Final 

Judgment in its favor and against APC: (a) requiring APC to exonerate FMIC at common law and 

in equity by satisfying any and all pending claims under the Bonds which have not yet been paid 

by FMIC or, in the alternative, to post with FMIC satisfactory monies so as to protect FMIC from 

such future claims and/or liabilities; (b) pay and reimburse FMIC for its attorneys’ fees and costs 

incurred in prosecution of the instant action; and (c) awarding FMIC such other and further relief 

as this Court deems necessary, just and proper. 

COUNT V -SPECIFIC PERFORMANCE/INJUNCTIVE RELIEF 

 AND DEMAND FOR POSTING OF COLLATERAL 

(AGAINST INDEMNITORS) 

98. FMIC realleges and re-avers the allegations of paragraphs 1 through 68 hereof, as 

if fully set forth herein.

99. This is an action for specific performance seeking injunctive relief.

100. As a result of FMIC’s liability arising from the INDEMNITOS’ failure to 

exonerate, indemnify and post satisfactory collateral with FMIC, FMIC made demand upon the 

INDEMNITORS under the Indemnity Agreement to exonerate, indemnify and post satisfactory 

collateral with FMIC to cover FMIC’s payments and potential losses and expenses.

101. Despite such demands, the INDEMNITORS have failed and/or refused to full 

perform their obligations under the Indemnity Agreement, including but not limited to their 

obligation to post satisfactory collateral upon demand by FMIC.

102. Pursuant to the terms of the Indemnity Agreement, each of the INDEMNITORS, 

jointly and severally, agreed that their conduct in failing to exonerate or otherwise place funds 

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with FMIC sufficient to cover the actual losses and claim against the Bonds would “cause 

irreparable harm” to FMIC for which FMIC “has no adequate remedy at law”, and that FMIC 

“shall be entitled to injunctive relief and/or specific performance” of such rights.

103. INDEMNITORS’ failure to deposit the demanded collateral with FMIC in 

accordance with the Indemnity Agreement has and continues to cause irreparable harm for which 

FMIC has no adequate remedy at law.

104. FMIC is entitled to equitable relief for specific performance of the 

INDEMNITORS’ obligation to post satisfactory collateral.

WHEREFORE, Plaintiff FMIC respectfully requests that this Honorable Court enter a 

Final Judgment in its favor and against the INDEMNITORS: (a) granting FMIC specific 

performance of the Indemnity Agreement by directing the INDEMNITORS to provide satisfactory 

collateral to FMIC to cover FMIC’s actual and/or potential losses and expenses; (b) awarding 

FMIC its attorneys’ fees and costs incurred in prosecution of the instant action pursuant to the 

terms of the Indemnity Agreement, and (c) awarding FMIC such other and further relief as this 

Court deems necessary, just and proper. 

COUNT VI – QUIA TIMET 

(AGAINST INDEMNITORS) 

105. FMIC realleges and re-avers the allegations of paragraphs 1 through 68 hereof, as 

if fully set forth herein.

106. This is an action for quia timet seeking injunctive and equitable relief.

107. FMIC has provided notice to and demanded indemnity and exoneration from the 

INDEMNITORS under the terms of the Indemnity Agreement, requiring INDEMNITORS to post 

collateral sufficient to defray actual and/or potential losses and expenses in connection with the 

Bonds.

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108. The INDEMNITORS have failed to satisfy their obligations under the Indemnity 

Agreement by refusing to exonerate or otherwise post collateral with FMIC sufficient to cover the 

actual and/or potential losses and expenses incurred by FMIC.

109. As a result of the INDEMNITORS’ breach of the Indemnity Agreement, FMIC has 

sustained losses, damages, costs, expenses and attorneys’ fees by reason of having furnished and 

executed the Bonds.

110. FMIC is concerned and apprehensive that the INDEMNITORS are or will become 

financially unable to pay any amounts that may be found owing to the claimants for which FMIC 

may be liable, or that the INDEMNITORS, based upon their refusal to exonerate FMIC in 

accordance with its demands, will sell, transfer, dispose of, lien, secure or otherwise divert or 

conceal their assets. FMIC is also concerned and apprehensive that the INDEMNITORS will be 

financially unable to pay the expenses incurred by FMIC, including attorneys’ fees.

111. In the absence of the equitable relief sought herein, FMIC will suffer irreparable 

damage and loss because it will be forced to advance further funds in connection with the claims 

on the Bonds without being adequately secured by the INDEMNITORS for its obligations under 

the Bonds.

112. By virtue of the rights under the Indemnity Agreement and the common law and 

equitable doctrine of quia timet, FMIC is entitled to have the INDEMNITORS post funds or other 

security with FMIC that is sufficient to cover the actual and/or anticipated losses associated with 

the claim against the Bonds.

113. Unless the relief in the nature herein requested or its equivalent is granted, FMIC’s 

equitable right of quia timet will be forever lost, depriving FMIC of adequate security for its 

obligations under the Bonds. Further, unless the equitable relief requested below is granted, the 

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INDEMNITORS are likely to sell, transfer, dispose, lien, secure, or otherwise, divert their assets 

from being used to discharge the INDEMNITORS’ obligations to exonerate FMIC.

114. FMIC has a high probability of success on the merits, as the pending allegations of 

APC’s default under the Bonds and projects has clearly triggered the INDEMNITORS’ obligations 

under the Indemnity Agreement. FMIC has duly performed its duties, obligations and conditions 

under the Indemnity Agreement, and the Indemnity Agreement provides for the relief sought in this 

count.

115. The threatened injury to FMIC outweighs the potential damage to the 

INDEMNITORS if the relief requested herein is granted, and such relief would not be adverse to 

the public interest.

WHEREFORE, FMIC respectfully requests that this Honorable Court enter a Final 

Judgment in its favor and against the INDEMNITORS: (a) awarding FMIC its general and 

consequential damages which have been and/or will be incurred (including FMIC’s attorneys’ fees 

and costs under the Indemnity Agreement); (b) ordering INDEMNITORS to immediately post 

collateral with FMIC (or deposit with the Clerk of this Court, for the benefit and protection of 

FMIC) in an amount to be determined by this Court to cover FMIC’s anticipated losses and 

expenses in connection with the Bonds; and (c) award FMIC such other and further relief as this 

Court deems necessary, just and proper. In the alternative, FMIC respectfully requests that this 

court order the INDEMNITORS to: 

a. Render a full and complete accounting of all assets owned by them or which 

they have an interest; 

b. Refrain from selling, transferring or disposing of their assets including, but 

not limited to, sums held in offshore accounts; 

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c. Grant to FMIC an equitable lien upon all assets and property of 

INDEMNITORS including, but not limited to, realty, personally and mixed, 

owned by INDEMNITORS, and property in which INDEMNITORS have 

any interest, to remain in effect until INDEMNITORS place funds with 

FMIC as required by the Indemnity Agreement securing FMIC against any 

loss it has sustained or will sustain by virtue of it having executed the Bonds; 

and 

d. Award FMIC such other and further relief as this Court deems necessary, 

just and proper. 

DATED this 24th day of August 2022. 

ETCHEVERRY HARRISON, LLP 

Attorneys for FMIC 

150 South Pine Island Road, Suite 105 

Ft. Lauderdale, FL 33324 

Phone: (954) 370-1681 

Fax: (954) 370-1682 

E-mail: Etcheverry@etchlaw.com 

 geller@etchlaw.com 

 

By: /s/ Edward Etcheverry 

 Edward Etcheverry, Fla. Bar No.: 856517 

 Jeffrey S. Geller, Fla. Bar No.: 63721 

 

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