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Baistar Mechanical, Inc. v. Cont'l Insurance Co.

United States District Court, D. Columbia.

May 22, 2014

BAISTAR MECHANICAL, INC., Plaintiff,
v.
CONTINENTAL INSURANCE COMPANY, Defendant

For Baistar Mechanical, Inc., Plaintiff: Joshua Graeme Whitaker, LEAD ATTORNEY, ADELPHI, LLP, Baltimore, MD.

For Continental Insurance Company, Defendant: Jeffrey M. Mervis, THE SACK LAW FIRM PC, Mclean, VA.

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MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge.

Plaintiff Baistar Mechanical, Inc. (" Baistar" or " plaintiff" ) filed this action against Continental Insurance Company (" Continental" or " defendant" ) in the Superior Court of the District of Columbia on July 15, 2013, seeking damages for breach of contract. See Compl. [Dkt. #1-1]. On September 9, 2013, Continental removed the case to this Court. See Not. of Removal [Dkt. #1]. Now before the Court is defendant's Motion for Summary Judgment. See Mot. Summ. J. [Dkt. #7]. Upon consideration of the parties' pleadings, the entire record in this case, and relevant law, the Court GRANTS defendant's Motions for Summary Judgment.

BACKGROUND

This case involves a dispute arising out of a construction project at the Brazilian Embassy in Washington, D.C. (the " Project" ). The Project involved renovations and refurbishing of the Chancery Building of the Brazilian Embassy. See Compl. at ¶ 9. On November 5, 2005, the Federative Republic of Brazil hired Grunley Construction Company, Inc. (" Grunley" ), pursuant to a prime contract (the " Prime Contract" ), to act as the general contractor for the Project. See id. In connection with the Prime Contract, Grunley was required to obtain performance and payment bonds. See id. at ¶ 10. On November 11, 2008, defendant issued a payment bond (the " Bond" ), as surety, on behalf of Grunley, as principal. See id. Paragraph 11 of the Bond contains limitations for when a suit may be filed pursuant to the Bond, specifically requiring that:

No suit or action shall be commenced by a Claimant under this bond other than in a court of competent jurisdiction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment was furnished by anyone under the [Prime Contract], whichever of (1) or (2) first occurs.

Declaration of James Milos, Ex. A to Def.'s Mot. Summ. J. (" Def.'s Mot." ) at ¶ 3 [Dkt. #7-2]; Payment Bond, Ex. A-1 to Def.'s Mot. at ¶ 11.

In early 2009, plaintiff entered into a subcontract (the " Subcontract" ) with Grunley to perform certain work on the Project. See Compl. at ¶ 11. By September 30, 2011, " Grunley completed performing the labor and services and furnishing the material and equipment required by the Prime Contract," when plaintiff completed equipment training at the Project site. See Declaration of Eric Snyder (" Snyder Decl." ) at ¶ 4 [Dkt. #7-3].

As early as February 23, 2011, Baistar invoiced Grunley for a total amount of $2,991,801 for the work it performed pursuant to the Subcontract and approved change orders. See Compl. at ¶ 15. On August 31, 2012, Baistar, through counsel, submitted a claim to Continental pursuant to subparagraph 4.1 of the Bond. See id. at ¶ 22. On February 8, 2013, Baistar again demanded payment from Grunley for the work it performed on the Project. See id. at ¶ 21.

Baistar has been paid a total of $2,623,875.89 of the $2,991,801.00 owed to it for its performance on the Project. See id. at ¶ ¶ 15-16. On June 22, 2013, Baistar

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submitted revised cost documentation to Continental, demanding the remaining $367,925.11 it claims it is owed. See id. at ¶ 26. Neither Continental nor Grunley have paid Baistar any portion of the disputed amount. See id. at ΒΆ 27. On July 15, 2013, Baistar filed a one-count ...


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