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BRODER v. HARTFORD ACC. & INDEM. CO.

August 7, 1952

BRODER
v.
HARTFORD ACC. & INDEMNITY CO.



The opinion of the court was delivered by: KEECH

This case is before the court on a motion to dismiss the complaint, on two grounds: first, that the claim asserted here has, in effect, been decided adversely to the plaintiff in another action (Civil Action No. 2244-50) in this court, and second, that the plaintiff by filing an action against the defendant's principal in the Municipal Court of the District of Columbia (No. A-1578-51) has limited his alleged claim to the sum of $ 3,000, the limit of that court's jurisdiction.

In the present action the plaintiff (hereinafter called Broder) sues the defendant, Hartford Accident & Indemnity Company (hereinafter called Hartford) as surety on the construction bond of Karl R. Mirkes, claiming damages in the amount of $ 15,000 occasioned the plaintiff by the contractor's alleged defaults on his contract to construct a house for the plaintiff.

 In May, 1950, the contractor, Mirkes, filed a complaint against Broder for enforcement and confirmation of an arbitration award made pursuant to Article 19 of the construction contract, which provided in part:

 'Arbitration- Any disagreement arising out of this contract or from the breach thereof, shall be submitted to arbitration and this agreement shall be specifically enforceable under the prevailing arbitration law, and judgment upon the award rendered may be entered in the highest court of the forum, state or federal, having jurisdiction. It is mutually agreed that the decision of the arbitrators shall be a condition precedent to any right of legal action that either party may have against the other.'

 In that action Broder filed an answer contesting the validity of the arbitrators' award, and also a counterclaim against Mirkes for the sum of $ 11,773.75, alleged to be the expense of completing the contract in accordance with its terms in excess of the unpaid balance due Mirkes. Mirkes filed a motion to dismiss the counterclaim on the sole ground that Broder was attempting to disregard the arbitration provisions of their contract and that, having agreed to arbitrate and all claims and demands raised in the counterclaim having been adjudicated by the report of the arbitrators, Broder was estopped from relitigating such controversies. The motion to dismiss the counterclaim was granted on October 6, 1950.

 Broder also moved to make Hartford a third-party defendant in that action. This motion was opposed by Hartford on the grounds that the contract of the parties, incorporated in the bond by reference, provided that the decision of the arbitrators should be a condition precedent to any right of legal action that either party might have against the other; that the condition of the bond was that the surety would indemnify the owner in the event the principal should fail to do so; and that, assuming that Broder should sustain a recovery against Mirkes, there was no showing at that time that Mirkes would fail to pay any loss sustained by Broder. The motion to bring in Hartford as third-party defendant was denied.

 Thereafter, a motion to dismiss the original complaint was granted, with leave to amend. An amended complaint was filed, and the court denied Broder's motion for judgment on the pleadings, at the same time granting his oral motion that the answer to the original complaint be treated as his answer to the amended complaint. Broder then moved for summary judgment on his counterclaim. This motion was opposed by Mirkes on the ground that the counterclaim had been dismissed on October 6, 1950. Mirkes also filed a motion for summary judgment.

 On July 16, 1951, before disposition had been made of either of the motions for summary judgment, a praecipe was filed in the action, directing the clerk to 'enter the above case dismissed with prejudice, same having been settled and satisfied,' signed by the plaintiff and consented to by Broder.

 On March 10, 1952, Broder filed a motion to vacate the praecipe, to rescind the accord and satisfaction, and to reinstate his counterclaim, on the ground that Mirkes had failed to comply with the agreement of accord and satisfaction entered into prior to the filing of the praecipe. This motion was denied on March 28, 1952.

 Meanwhile, on September 20, 1951, Broder had filed in the Municipal Court for the District of Columbia a complaint against Mirkes for breach of the agreement of accord and satisfaction, claiming damages in the sum of $ 3,000. This action is still pending.

 On June 16, 1952, Broder filed the instant suit against Hartford, the surety on the construction bond, for $ 15,000 damages alleged to have been occasioned the plaintiff by Mirkes' default under the construction contract.

 On July 8, 1952, Broder filed still another suit (Civil Action No. 3002-52) in this court against Mirkes, in which he 'rescinded' the agreement of accord and satisfaction on the ground of Mirkes' breach thereof, and again, claimed damages of $ 11,000 for Mirkes' breach of the original construction contract. The plaintiff Broder has stated that he intends to dismiss the action pending in the Municipal Court when he has obtained service in Civil Action No. 3002-52 on Mirkes, who is now, as shown by the Municipal Court pleadings, on active duty with the United States Navy in Florida.

 As to the defendant's first ground for dismissal of the complaint in the present action, this court holds that the court's dismissal of Broder'a counterclaim in Civil Action No. 2244-50, as well as its denial of his motion to add the surety as a third-party defendant in that action and the parties' dismissal ...


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