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THE WHITING-TURNER CONTRACTING COMPANY v. WESTCHESTER FIRE INSURANCE COMPANY Complaint

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Case 1:13-cv-00348-JFM Document 1 Filed 02/01/13 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
(NORTHERN DIVSION)
THE WHITING-TURNER CONTRACTING COMPANY,
300 EAST JOPPA ROAD
* * * * *
BALTIMORE, MARYLAND 21286
(BALTIMORE COUNTY)
PLAINTIFF,
V.
CIVIL No.
*
* * *
*
WESTCHESTER FIRE INSURACE
COMPANY,
436 WALNUT STREET
*
*
* * * *
P.O. Box 1000
PHILADELPHIA, PENNSYLVANIA 19106
DEFENDANT.
*
COMPLAINT
Plaintiff, The Whiting-Turer Contracting Company ("Whiting-Turer"), by and through
its undersigned counsel, fies this Complaint against Westchester Fire Insurance Company
("Surety").
The Parties
1. Whiting-Turer is a corporation organzed and existing under the laws of the State
of Marland, and maintains its principal place of
business at 300 East Joppa Road, Baltimore,
Marland 21286.
2. Whiting-Turer provides constrction management and general contracting
services.
Case 1:13-cv-00348-JFM Document 1 Filed 02/01/13 Page 2 of 9
3. Surety is an insurance company organized and existing under the laws of
the State
of
New York, having an address of 436 Walnut Street, P.O. Box 1000, Philadelphia,
business in Atlanta, Georgia.
Pennsylvania 19106, and having its principal place of
4. Surety is in the business of, among other things, issuing performance and payment
bonds in connection with construction projects.
Jurisdiction and Venue
5. This Cour has personal jursdiction over Surety. Surety issued the performance
and payment bonds that are at issue in this action in favor of
Whiting-Turner (as obligee), a
Marland corporation. Furher, upon information and belief, Surety regularly engages in and
transacts business in the State of Maryland, including but not necessarily limited to the issuance
of performance and payment bonds in favor of
Marland entities and/or with respect to
construction projects located in Maryland.
6. This Court has subject-matter jurisdiction in this matter. The parties have diverse
citizenship and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332.
7. Venue is proper in this Cour pursuant to 28 U.S.C. § 1391.
Factual Allee:ations
8. On or about June 26, 2009, Whiting-Turer entered into a contract (the
"Contract") with California University of
the State System of
Higher Education, Commonwealth
of
Pennsylvania (the "Owner"), to perform as the general contractor for a construction project
Pennsylvania Convocation Center (the "Project").
known as the Californa University of
9. On or about September 14,2009, Whiting-Turer entered into Subcontract No.
12410-03A with Ionadi Corporation ("Ionadi"), whereby Ionadi agreed to perform and provide
all
labor, supervision, materials, tools, equipment, penalty, engineering, and services necessary
2
Case 1:13-cv-00348-JFM Document 1 Filed 02/01/13 Page 3 of 9
for and reasonably incidental to the proper execution and completion of
the cast-in-place
concrete work as required for the Project (the "Subcontract"). A true and correct copy of
the
Subcontract is incorporated herein and attached hereto as Exhibit 1.
10. On November 2,2009, Surety, on behalf of
Ionadi, issued Performance Bond No.
K08219400 (the "Performance Bond") and Payment Bond No. K08219400 (the "Payment
Bond") in connection with the Project. The Performance Bond and Payment Bond each name
Westchester Fire Insurance Company as Surety, Ionadi as Principal and Whiting-Turer as
Obligee. True and correct copies of the Performance Bond and Payment Bond are incorporated
herein and attached hereto as Exhibits 2 &~, respectively.
11. Pursuant to the Performance Bond, in the event that Ionadi failed to properly
complete its obligations under the Subcontract with Whiting-Turer, Surety had an obligation to
either "promptly proceed to remedy the default or promptly proceed to complete the contract in
accordance with and subject to its terms and conditions." Furher, in the event Surety failed to
undertake either of
these options, then Whiting-Turner "shall have the remaining work
completed, Surety to remain liable hereunder for all expenses, including attorney's fees, of
completion." Ex.
2.
12. Pursuant to the Payment Bond, in the event that Ionadi failed to pay its suppliers
for materials provided in connection with the Project, said suppliers -- as well as Whiting-Turer
-- may seek recovery for payment under the Payment Bond.
13. The Subcontract between Whiting-Turer and Ionadi is incorporated by reference
and made a par of both the Performance Bond and the Payment Bond. Exs. 2 & ~.
3
Case 1:13-cv-00348-JFM Document 1 Filed 02/01/13 Page 4 of 9
14. Aricle 9(r) of
the Subcontract states that the Subcontract shall be governed by the
laws of Marland and that any action or suit arsing under the Subcontract shall be brought in the
jurisdiction where Whiting-Turner's principal office is located (Marland).
15. On October 17, 2011, Whiting-Turer notified Ionadi and Surety that Ionadi was
in default of its obligations under the Subcontract.
16. On November 1, 2011, Surety directed Whiting-Turer to supplement and
complete Ionadi's work on the Project, and to track the costs incured in doing so.
17. Pursuant to Surety's directive, Whiting-Turer proceeded to complete Ionadi's
remaining Subcontract work and to make payments to certain suppliers of Ionadi who refused to
deliver necessar materials until the amounts outstading from Ionadi were satisfied.
18. The costs incured by Whiting-Turer to complete Ionadi' s remaining scope of
work under the Subcontract were $459,839.60.
19. Additionally, the Owner deducted $49,000.00 from Whiting-Turer's Contract for
the Project.
deficient concrete floors constructed by Ionadi on the concourse level of
20. At the time that Ionadi abandoned the Project, the total Subcontract balance
available to complete Ionadi's scope of
work was $77,952.00, plus retainage of$142,820.00.
remaining
21. On or about March 1,2012, after applying the $220,772.00 of
Subcontract balances, Whting-Turer made a demand upon Surety for payment of the
$288,067.60 cost overr to complete Ionadi's work.
22. Whiting-Turer submitted initial cost information to Surety on March 1,2012.
23. On April
26, 2012, in response to Surety's request, Whting-Turer provided
Surety with additional Project documentation.
4
Case 1:13-cv-00348-JFM Document 1 Filed 02/01/13 Page 5 of 9
24. On May 9, 2012, Surety again requested additional Project information and
documentation, which information and documentation was provided to Surety by WhitingTurer on or about May 24, 2012.
25. On July 3, 2012, Whting-Turer submitted finalized cost information and
documentation to Surety, including the Owner's deduction of $49,000.00 for the deficient
concrete floors constructed by Ionadi.
26. Despite Whiting-Turer's demands, Surety has failed to make any payment to
Whiting- Turer for the costs and expenses incured by Whiting-Turer to complete Ionadi's
remaining Subcontract work.
Count I
(Breach of Performance Bond)
27. Whting-Turer incorporates herein by reference paragraphs 1-26, inclusive. The
allegations in this count are, to the extent necessary or appropriate, made in the alternative to the
allegations in the other paragraphs and counts in this Complaint.
28. Surety owes a contractual duty to Whting-Turer under the Performance Bond to
pay the completion costs Whting-Turer incurred in completing Ionadi's work under the
Subcontract for the Project, in the principal amount of $288,067.60.
29. Surety has materially breached that duty by failng to pay Whting-Turner for the
Ionadi completion costs.
30. Surety's breach of
the Performance Bond has substatially hared Whiting-
Turer.
31. All conditions precedent to Whiting- Turer's recovery under the Performance
Bond have been satisfied and/or waived.
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Case 1:13-cv-00348-JFM Document 1 Filed 02/01/13 Page 6 of 9
32. As a result of Surety's breach, Whiting-Turer is entitled to recover from Surety
the costs of
completion ($288,067.60) as well as the attorneys' fees incurred by Whiting-Turer
in connection therewith.
WHEREFORE, Plaintiff, The Whiting-Turer Contracting Company, respectfully
requests that this Cour enter judgment in its favor and against Westchester Fire Insurance
Company, in an amount not less than $288,067.60, together with attorneys' fees, interest, costs,
and such fuher relief as deemed appropriate.
Count II
(Breach of Contract)
33. Whiting-Turer incorporates herein by reference paragraphs 1-32, inclusive. The
allegations in this count are, to the extent necessary or appropriate, made in the alternative to the
allegations in the other paragraphs and counts in this Complaint.
34. Surety, by its agreement to retain Whting-Turer to complete Ionadi's work
under the Subcontract for the Project, formed an independent contract with Whiting-Turer for
the completion of that work.
35. Surety materially breached that contract by failng to pay Whiting-Turner for the
costs of completing Ionadi' s work.
36. Surety's breach of contract has substantially hared Whting-Turer.
37. All conditions precedent to Whiting-Turer's recovery have been satisfied and/or
waived.
38. As a result of Surety's breach, Whiting-Turner is entitled to recover from Surety
the costs of completion ($288,067.60) as well as the attorneys' fees incurred by Whting-Turer
in connection therewith.
6
Case 1:13-cv-00348-JFM Document 1 Filed 02/01/13 Page 7 of 9
WHEREFORE, Plaintiff, The Whiting-Turner Contracting Company, respectfully
requests that this Cour enter judgment in its favor and against Westchester Fire Insurance
Company, in an amount not less than $288,067.60, together with attorneys' fees, interest, costs,
and such fuher relief as deemed appropriate.
Count III (Detrimental Reliance/Promissory Estoppel)
39. Whiting-Turer incorporates herein by reference paragraphs 1-38, inclusive. The
allegations in this count are, to the extent necessary or appropriate, made in the alternative to the
allegations in the other paragraphs and counts in this Complaint.
40. Surety made a clear and definite promise to Whting-Turner by directing and
requesting Whting-Turer to complete Ionadi' s work under the Subcontract and agreeing to
compensate Whiting-Turner for its costs in doing so.
41. Surety reasonably expected that its promises and agreements would induce
Whiting- Turer to undertake the completion of Ionadi's work.
42. Surety's promises and agreements did in fact induce Whiting-Turer's actual and
reasonable reliance, and caused Whting-Turner to undertake the completion of Ionadi's work
under the Subcontract.
43. Whting-Turer has been substantially hared by its reasonable reliance on
Surety's promises and agreements, and that har can only be avoided by the enforcement of
those promises and agreements.
WHEREFORE, Plaintiff, The Whiting-Turer Contracting Company, respectfully
requests that this Cour enter judgment in its favor and against Westchester Fire Insurance
Company, in an amount not less than $288,067.60, together with attorneys' fees, interest, costs,
and such fuher relief as deemed appropriate.
7
Case 1:13-cv-00348-JFM Document 1 Filed 02/01/13 Page 8 of 9
Count iv
(Breach of Payment Bond)
44. Whiting-Turer incorporates herein by reference paragraphs 1-43, inclusive. The
allegations in this count are, to the extent necessary or appropriate, made in the alternative to the
allegations in the other paragraphs and counts in this Complaint.
45. Surety owes a contractual duty to Whiting-Turer under the Payment Bond to pay
the costs Whiting-Turer incured in paying Ionadi's suppliers in order to complete Ionadi's
work under the Subcontract for the Project, in the principal amount of
$246,005.46.
46. Surety has materially breached this duty by failng to pay Whting-Turer for the
costs incured in paying Ionadi's suppliers for the Project.
47. Surety's breach of
the Payment Bond has substantially hared Whiting-Turner.
48. All conditions precedent to Whiting-Turer's recovery under the Payment Bond
have been satisfied and/or waived.
WHEREFORE, Plaintiff, The Whiting-Turner Contracting Company, respectfully
requests that this Cour enter judgment in its favor and against Westchester Fire Insurance
Company, in an amount not less than $246,005.46, together with attorneys' fees, interest, costs,
and such fuher relief as deemed appropriate.
8
Case 1:13-cv-00348-JFM Document 1 Filed 02/01/13 Page 9 of 9
Dated: February 1,2013
Respectfully submitted,
C. Carey Deeley, Jr. (Bar No. 03077) Matthew R. Alsip (Bar No. 28002) Venable LLP 210 West Pennsylvania Avenue, Suite 500
Towson, Marland 21204 (410) 494-6200 (telephone)
(410) 821-0147 (facsimile) ccdeeley§venable.com mralsip§venable.com
Counsel for Plaintif
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COMPLAINT against Westchester Fire Insurance Company ( Filing fee $ 350 receipt number 14637064729.), filed by The Whiting-Turner Contracting Company.pdf318.51 KB

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