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EFFICIENT ENERGY OF TENNESSEE, LLC v. BAJA CONSTRUCTION COMPANY, INC. et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
6:15-cv-01388 Search Pacer
ACE Group party(s): 
Opposing Party: 
Efficient Energy of Tennessee, LLC
Court Type: 
Federal
US District Court: 
District of Kansas 
Date Filed: 
Dec 9 2015

Plaintiff Efficient Energy of Tennessee (“EETN” or “Plaintiff’), by and through counsel,
for its causes of action against Baja Construction Company, Inc. (“Baja”) and Westchester Fire
Insurance Company (“Westchester”) (collectively the “Defendants”), alleges and states:

 

PARTIES, JURISDICTION, AND VENUE

 

  1. EETN is a Tennessee Limited Liability Company with its principal place of
    business at 1707 Depot Street, Powell, TN 37849.
  2. Baja is a California Corporation with its principal place of business at 223 Foster
    Street, Martinez, CA 94553.
  3. Westchester is a Pennsylvania Corporation with its principal place of business at
    436 Walnut Street, Philadelphia, PA 19106.
  1. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because a
    substantial part of the events or omissions giving rise to the claims occurred in Wichita, Kansas.
  2. Jurisdiction is proper in this Court pursuant to 28 U.S.C § 1332(a) because there
    is complete diversity of citizenship between Plaintiff and Defendants and the amount in
    controversy exceeds $75,000.

FACTS COMMON TO ALL COUNTS

  1. On or about September 27, 2013, EETN entered into an agreement with the
    United States Department of Veteran’s Affairs to serve as the prime contractor for the Turn-Key
    Solar PV project at the Robert J. Dole Medical Center (the “Project”), a facility operated by the
    U.S. Department of Veterans Affairs (“VA”).
  2. On or about June 15, 2014, EETN entered into a subcontract agreement with Baja
    (the “Subcontract”), that required Baja to design, fabricate, and install parking canopies for the
    Project. A true and correct copy of the Subcontract is attached hereto as Exhibit A.
  3. After execution of the Subcontract, EETN paid Baja one hundred and thirty-one
    thousand two hundred thirty-three dollars and sixty-one cents ($131,233.61), an amount equal to
    ten percent of the Subcontract amount.
  4. The Subcontract required Baja, within ten days of the execution of the
    Subcontract, to provide a performance bond in favor of EETN securing complete performance of
    Baja’s obligations under the Subcontract. See Ex. A, at 7.
  5. On or about August 20, 2014, Baja, as principal, and Westchester, as surety,
    provided a performance bond (the “Performance Bond”) in favor of EETN. A true and correct
    copy of the Performance Bond is attached hereto as Exhibit B.
  6. The Subcontract requires timely completion of all work and makes Baja liable for
    any damages resulting from a delay by Baja in performing the work. See Ex. A, at 4.
  7. The failure of Baja to perform any of its obligations, covenants, or agreements
    under the Subcontract and its failure to correct such non-performance within five working days
    following written notice from EETN constitutes a default under the Subcontract. See Ex. A, at
    17. Upon default, EETN was permitted to terminate the Subcontract and complete Baja’s work,
    for which cost Baja remained liable. Id.
  8. During the course of Baja’s performance of the Subcontract, the VA raised
    several issues with Baja’s design of the parking canopies.
  9. On August 16, 2014, EETN retained an independent engineer. Professional
    Engineering Consultants, P.A. (“PEC”), to review the design prepared by Baja. PEC confirmed
    several deficiencies in Baja’s work, including deviations from the applicable building code.
    These observations were shared with Baja.
  10. On August 26, 2014, EETN provided written notice to Baja that it was in default
    because its design was deficient and its work was behind schedule.
  11. On September 15, 2014, EETN noted that Baja’s response to the observations of
    PEC still did not address the code violations. Despite this notification, Baja did not cure this

material breach of the Subcontract. As a result, EETN was forced to terminate the Subcontract
and secure a replacement subcontractor to complete the work of Baja.

COUNT I - BREACH OF CONTRACT

  1. EETN repeats and incorporates by reference the allegations contained in the
    preceding paragraphs of this Complaint as if set forth fully herein.
  2. EETN has properly performed its obligations under the above-mentioned
    Subcontract.
  3. Baja failed to fulfill its contractual obligations and failed to complete its work in
    accordance with the terms of its Subcontract.
  4. Baja engaged in actions that resulted in delay and increased costs to EETN.
  5. The acts and conduct of Baja constitute a material breach of the Subcontract.
  6. The unexcused breach of contract by Baja has caused damage to EETN in an
    amount not less than one hundred and eighty-one thousand four hundred thirty-eight dollars and
    sixty-two cents ($181,438.62).

COUNT II - BREACH OF PERFORMANCE BOND

  1. EETN repeats and incorporates by reference the allegations contained in the
    preceding paragraphs of this Complaint as if set forth fully herein.
  2. EETN timely notified Westchester of its claims against the Performance Bond,
    satisfied all conditions under the Performance Bond, and made demand for Westchester’s full
    performance of its obligations under the Performance Bond.


  1. Despite demand, Westchester has refused to pay EETN for damages caused by its
    principal, Baja. Westchester’s failure to pay EETN constitutes a breach of the Performance
    Bond for which Westchester is liable to EETN in an amount not less than one hundred and
    eighty-one thousand four hundred thirty-eight dollars and sixty-two cents ($181,438.62).

COUNT III - STATUTORY ATTORNEYS’ FEES

  1. EETN repeats and incorporates by reference the allegations contained in the
    preceding paragraphs of this Complaint as if set forth fully herein.
  2. Westchester is an “insurance” company as defined by K.S.A. § 40-201 and is
    therefore subject to the attorneys’ fees provision of K.S.A. § 40-256.
  3. Despite demand, Westchester has refused without just cause or excuse to pay the
    full amount of EETN’s performance bond claim. EETN has incurred and will continue to incur
    substantial damages for the prosecution of this action, including but not limited to attorneys’
    fees, and is entitled to judgment for those fees and expenses.

PRAYER FOR RELIEF

EETN therefore demands judgment against Defendants as follows:

  1. That this Court grant Judgment in EETN’s favor and against Defendants in an
    amount not less than One Hundred and Eighty-One Thousand Four Hundred Thirty-Eight
    Dollars and 62/100 ($181,438.62), plus pre-judgment and post-judgment interest at the highest
    rate allowed by law;
  2. That this Court award reasonable attorneys’ fees to EETN pursuant to K.S.A. §
    40-256;
  3. That all costs of this action be assessed against Defendants; and
  4. That EETN be awarded such further relief as this Court deems appropriate.

 

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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