UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

GREAT AMERICAN INSURANCE 

COMPANY 

 Plaintiff 

 vs. 

GEMMA POWER SYSTEMS, LLC 

 Defendant 

: 

: 

: 

: 

: 

: 

: 

CASE NO. 1:18-cv-00213-TSB 

(Judge Timothy S. Black) 

(Magistrate Karen L. Litkovitz) 

KRAMIG INDUSTRIAL, INC., 

KRAMIG, INC., R.E. KRAMIG & CO., 

INC., KRAMIG CORP., DIVERSIFIED 

INDUSTRIAL CAPITAL GROUP, INC. 

AND SOUTH WAYNE, LLC’S 

MOTION TO INTERVENE 

 Pursuant to Federal Rule of Civil Procedure 24, Kramig Industrial, Inc., Kramig, Inc., 

R.E. Kramig & Co., Inc., Kramig Corp., Diversified Industrial Capital Group, Inc. and South 

Wayne, LLC (collectively “Kramig”) move this Court for an order permitting them to intervene 

as plaintiffs in the captioned action. Kramig is entitled to intervene because it has an interest in 

the property and transaction in dispute in the captioned action which may be impaired if it is not 

permitted to intervene and because Kramig has common questions of law and facts with the 

captioned action. A copy of Kramig’s proposed Intervening Complaint is attached as Exhibit 1 to 

this motion and memorandum. 

 The legal and factual bases for this motion are set forth in the attached memorandum in 

support. 

 

Case: 1:18-cv-00213-TSB Doc #: 13 Filed: 07/18/18 Page: 1 of 6 PAGEID #: 378
 2 

 

 /s/ C.J. Schmidt

C.J. Schmidt (0034030) 

Jeffrey R. Teeters (0061801) 

Wood & Lamping LLP 

600 Vine Street, Suite 2500 

Cincinnati, OH 45202 

(513) 852-6052 

(513) 419-6452 (Fax) 

cjschmidt@woodlamping.com 

jrteeters@woodlamping.com 

Trial Attorneys for Plaintiffs Kramig Industrial, 

Inc., Kramig, Inc., R.E. Kramig & Co., Inc., 

Kramig Corp., Diversified Industrial Capital 

Group, Inc. and South Wayne, LLC

MEMORANDUM IN SUPPORT 

I. FACTUAL BACKGROUND 

This dispute concerns the construction of a natural gas electric generating plant located in 

Butler County, Ohio (the “Project”). (Doc. 1, Complaint, ¶6). Defendant Gemma Power 

Systems, LLC (“Gemma”) was the general contractor for the Project. (Doc. 1, Complaint, ¶6). 

On March 29, 2018, plaintiff Great American Insurance Company (“Great American”) filed this 

action against defendant Gemma requesting a declaratory judgment regarding its obligation 

under the terms of a performance bond it issued for its principal Kramig, Inc. (“Kramig”). Great 

American issued the Bond pursuant to a subcontract between Gemma and Kramig (“Insulation 

Subcontract). (Doc. 1, Complaint, ¶8). Gemma awarded the subcontract to Kramig for the 

installation of scaffolding and pipe insulation on the Project. (Doc. 1, Complaint, ¶8). 

After Kramig left the Project because of Gemma’s fraudulent representations and actions, 

Gemma made a claim on the Bond. (Doc. 1, Complaint, ¶¶32-32). Great American immediately 

began investigating Gemma’s Bond claim. (Doc. 1, Complaint, ¶¶36-38). Gemma refused to 

Case: 1:18-cv-00213-TSB Doc #: 13 Filed: 07/18/18 Page: 2 of 6 PAGEID #: 379
 3 

provide most of the information Great American requested. (Doc. 1, Complaint, ¶¶36-38). 

Gemma demanded from Great American $6,135,604.92 on the Bond to resolve its claims. (Doc. 

1, Complaint, ¶46). Because Gemma refused to cooperate with Great American in resolving 

Gemma’s Bond claim, Great American instituted this action. 

In this action and among other claims, Great American requests that the Court declare the 

Bond obligation void ab initio because of Gemma’s misrepresentations during the negotiations of 

the Insulation Subcontract and Gemma’s breach of its terms of the Insulation Subcontract. (Doc. 

1, Complaint, ¶¶48-52). If Great American’s Bond is declared void, then Kramig will be 

responsible for any amounts owed to Gemma, if any. 

Great American also seeks a declaration as to the amount it owes to Gemma. (Doc. 1, 

Complaint, ¶¶59-64). Great American secured all of Kramig’s assets as part of the term of the 

Bond. Because of this security, when Gemma made a claim on the Bond, Kramig had to 

liquidate its business and transfer any sums generated by the liquidation to Great American. If 

Great American is successful in limiting its exposure on Gemma’s Bond claim, then Kramig may 

be entitled to a return of all or some of the money it transferred to Great American. 

II. ARGUMENT 

A. Kramig Is Entitled to Intervene as a Matter of Right 

Kramig is entitled to intervene as a matter of right pursuant to Fed. R. Civ. P. 24(a)(2) 

because it has an interest relating to the transaction that is the subject matter of this action and 

disposing of the action may, as a practical matter, impair or impede Kramig’s ability to protect 

its interest. Stupak-Thrall v. Glickman, 226 F.2d 467 (6th Cir. 2000); Blount-Hill v. Zelman, 636 

F.3d 278, 283 (6th Cir. 2011); Allied Construction Industries v. City of Cincinnati, 2014 Westlaw 

11429028 (S.D. Ohio Nov. 24, 2014). As a non-party, Kramig must demonstrate the following 

to prove it has a right to intervene: 

Case: 1:18-cv-00213-TSB Doc #: 13 Filed: 07/18/18 Page: 3 of 6 PAGEID #: 380
 4 

1. timely applied to intervene; 

2. has a substantial legal interest in the litigation; 

3. the ability to protect its interest is impaired; and, 

4. the parties presently before the court do not adequately represent its 

interest. 

Id. Kramig meets all of these elements. First, the application is timely. Gemma answered Great 

American’s Complaint on June 25, 2018, and the litigation is in its very earlies stages. (Doc. 8, 

Answer). Wellington Resources Group, LLC v. Beck Energy Corp., 2012 Westlaw 2995181 

(S.D. Ohio July 23, 2012) (a motion to intervene filed six weeks after the original complaint is 

timely and, thus, the non-moving party cannot demonstrate prejudice). 

Second, Kramig has a substantial legal interest in this action. As stated above, if Great 

American is successful in having the Bond declared void, then Kramig may have to be solely 

responsible for any damages Gemma may have suffered. Similarly, if the Court declares that 

Gemma did not breach the terms of the Insulation Subcontract, then Kramig’s legal interest will 

be impaired. Wellington Resources Group, LLC v. Beck Energy Corp., 2012 Westlaw 2995181 

(S.D. Ohio July 23, 2012); Allied Construction Industries v. City of Cincinnati, 2014 Westlaw 

11429028 (S.D. Ohio Nov. 24, 2014). Third, as described above, Kramig’s ability to protect its 

interest is impaired and fourth, Great American and Gemma do not adequately represent 

Kramig’s interest. Therefore, Kramig has a right to intervene in this action. 

B. Because Kramig’s Action Shares Common Questions of Law and Fact With 

This Action, the Court Should Permit Kramig to Intervene 

 Kramig is entitled to intervene pursuant to Fed. R. Civ. P. 24(b)(1)B) because its claims 

share common questions of law and fact with this action. Wellington Resources Group, LLC v. 

Beck Energy Corp., 2012 Westlaw 2995181 (S.D. Ohio July 23, 2012); Allied Construction 

Case: 1:18-cv-00213-TSB Doc #: 13 Filed: 07/18/18 Page: 4 of 6 PAGEID #: 381
 5 

Industries v. City of Cincinnati, 2014 Westlaw 11429028 (S.D. Ohio Nov. 24, 2014). As 

described above, Kramig’s claims regarding the Insulation Subcontract are intertwined with 

Great American’s claims. Therefore, Kramig should be permitted to intervene in this action. 

III. CONCLUSION 

For all the foregoing reasons, the Court should permit Kramig Industrial, Inc., Kramig, 

Inc., R.E. Kramig & Co., Inc., Kramig Corp., Diversified Industrial Capital Group, Inc. and 

South Wayne, LLC (collectively “Kramig”) to intervene as plaintiffs in the captioned action. 

 

 /s/ C.J. Schmidt

C.J. Schmidt (0034030) 

Jeffrey R. Teeters (0061801) 

Wood & Lamping LLP 

600 Vine Street, Suite 2500 

Cincinnati, OH 45202 

(513) 852-6052 

(513) 419-6452 (Fax) 

cjschmidt@woodlamping.com 

jrteeters@woodlamping.com 

Trial Attorneys for Plaintiffs Kramig Industrial, 

Inc., Kramig, Inc., R.E. Kramig & Co., Inc., 

Kramig Corp., Diversified Industrial Capital 

Group, Inc. and South Wayne, LLC

 

Case: 1:18-cv-00213-TSB Doc #: 13 Filed: 07/18/18 Page: 5 of 6 PAGEID #: 382
 6 

CERTIFICATE OF SERVICE 

I hereby certify that on the 18th day of July, 2018, I electronically filed the foregoing with 

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to 

the following: 

James D. Houston 

Ulmer & Berne LLP 

600 Vine Street, Suite 2800 

Cincinnati, Ohio 45202 

jhouston@ulmer.com 

and 

David Conrad Olson 

Frost Brown & Todd 

301 East Fourth Street 

3300 Great American Tower 

Cincinnati, Ohio 45202 

dolson@fbtlaw.com 

Counsel for Great American Insurance 

Company 

Gregory D. Brunton 

Gordon Rees Scully Mansukhani, LLP 

41 South High Street, Suite 2495 

Columbus, Ohio 43215 

gbrnton@grsm.com 

Counsel for Defendant Gemma Power 

Systems, LLC 

/s/ C.J. Schmidt 

2628937.1

Case: 1:18-cv-00213-TSB Doc #: 13 Filed: 07/18/18 Page: 6 of 6 PAGEID #: 383