oa

No. 03 C 1405 Page 3

Ins. Co. v. Cler Const. Services, Inc., 2003 WL 1873926 (N.D. Ill. April 11, 2003), defendants
have thus far failed to comply with this court’s order.
DISCUSSION

Our function in ruling on a motion for summary judgment is merely to determine if

there is a genuine issue of material fact for trial. Anderson y. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). Only if the evidence on file shows that no such issue exists and that the

moving party is entitled to judgment as a matter of law will we grant the motion. Celotex

Corp. v Catrett, 477 U.S. 317, 322-23 (1986); Bennett v. Roberts, 295 F.3d 687, 694 (7 Cir.
2002).

The suretyship agreement is clear on its face, requiring defendants to indemnify
plaintiff for any and all costs incurred while securing Cler’s obligations. Itis undisputed that
defendants have failed to perform their obligations as required by the contract. As a matter
of law, therefore, plaintiff has established its right to the relief that it seeks.

CONCLUSION

For the foregoing reasons, plaintiff's motion for summary judgment is granted.

bore B Moran

Ss) JAMES B. MORAN
iS

entior Judge, U. S. District Court
QA.3 1, 2003.



«Minute Oxder Sam (06/97)

\ () United States District Court, Northern District of Illinois
"Heetedfretseee | James B. Moran Stee og one
| CASE NUMBER 03 C 1405 DATE 10/31/2003
CASE UNITED STATES FIDELITY AND GUARANTY vs. CLER CONSTRUCTION
TITLE SERVICES, INC.

[ln the following box (a) indicate the party fiting the motion, e.g, plail
of the motion being presented]

ay)

MOTION:
MEMORANDUM OPINION AND ORDER
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due.
(4) a Ruling/Hearingon set for__— saat
(5) Qa Status hearing[held/continued to] [set for/re-set for]on__—sset for at
(6) Q Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor_—at_
(7) ia) Trial(set for/re-set for]on___—_at
(8) a [Bench/Jury trial] [Hearing] held/continued to___—at
(9) qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OlLocal Rule 41.1 OFRCP41(a)(1) CFRCP41(a)(2).
ao [Other docket entry} | Enter Memorandum Opinion And Order. Plaintiffs motion for summary

judgment is granted. All pending dates and motions are now moot.

| [For further detail see order attached to the original minute order.]

XN

No notices required, advised in open court.

No notices required. umber of notices

ff, defendant, 3rd party plaintiff, and (b) state briefly the nature

Notices mailed by judge’s staff, wov 03 2008

Notified counsel by telephone. date docketed

Docketing to mail notices.
Mail AQ 450 form.
Copy to judge/magistrate judge.

NOV, 0,3).26

‘date'mailed notice

courtroom .
LG deputy’s wits
initials

Date/tinte récefved in
central Clerk's Office snating deputy nals



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES FIDELITY AND
GUARANTY INSURANCE COMPANY, a
Maryland corporation,

Plaintiff,

vs. No. 03 C 1405
CLER CONSTRUCTION SERVICES, INC., an
Illinois corporation, PRECISE INDUSTRIAL
SERVICES, INC., an Illinois corporation,
EDWARD H. FORTE, CORDIA R. FORCE,
and ROLAND G. SIMON,

a a ee eee

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff United States Fidelity and Guaranty Insurance Company (USF&G) brought
this action against the defendants alleging breach of a surety contract seeking damages and
equitable relief. Plaintiff filed a motion pursuant to Fed.R.Civ.P. 56 seeking summary
judgment as to all counts. For the following reasons, plaintiffs motion is granted.

BACKGROUND

Plaintiff USF&G issued performance and payment bonds on behalf of defendant Cler
Construction Services, Inc. (Cler) securing Cler’s obligations to perform construction work
under a subcontract with Osman Construction Corporation (Osman). As part of the surety
agreement between USF&G and Cler, defendants executed contracts on August 14, 2000, and
November 26, 2001, agreeing to indemnify USF&G from any and all liability arising from

claims on the bonds. These agreements specifically provided:

DO



“
No. 03 C 1405 Page 2

4.The UNDERSIGNED shall indemnify SURETY and hold it harmless from
and against all claims, damages, expenses, losses, costs, professional and
consulting fees, disbursements, interests and expenses of every nature (including
premiums and fees due for the issuance and continuance of any BOND or
BONDS) which the Surety may sustain, incur or become liable for by reason of
having executed or procured the execution of any BOND or BONDS, or by
making any investigation of any matter concerning any BOND or BONDS, or
by prosecuting or defending any action in connection with any BOND or
BONDS, or by recovering any salvage or enforcing this Agreement...

5.(A) At SURETY’s sole discretion, SURETY may demand and upon
SURETY’s demand, the UNDERSIGNED shall deliver over to SURETY
collateral security acceptable to SURETY and equal in value to any reserve set
up by SURETY to cover any contingent losses and any subsequent increase
thereof. SURETY shall return to the UNDERSIGNED any unused portion of
collateral upon termination of the liability of SURETY on any BOND or
BONDS and satisfaction by the UNDERSIGNED of its obligations to SURETY
under this Agreement...

7.The UNDERSIGNED shall furnish to the SURETY such information as it

may request concerning any BONDED CONTRACT, and the CONTRACTOR

hereby authorizes those with whom such contracts are made to furnish to the

SURETY all information concerning such contracts and the work thereunder.

The SURETY may from time to time, in its sole discretion, examine the books

and records of the CONTRACTOR.

On September 4, 2002, Osman declared Cler to be in default of its obligations and made
an immediate demand for payment upon the bonds. Plaintiff accordingly notified the
defendants of the claims and requested that they comply with the terms of the indemnity
agreements by holding USF&G harmless and posting sufficient collateral. When defendants
failed to do so, USF&G took control of the project, hiring a completion contracting company
that tendered satisfactory performance to Osman. In doing so, plaintiff allegedly incurred
costs of $164,094.64, but has yet to be reimbursed by the defendants.

USF&G filed a motion for a preliminary injunction, seeking to compel specific

performance of the contract. While this motion was granted in part, U.S. Fidelity & Guaranty