United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON THIRD-PARTY DEFENDANT'S
MOTION TO DISMISS
W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE.
defendant North American Specialty Insurance Company
(“North American”) has moved to dismiss Count
Nine of the first amended complaint filed by third-party
plaintiff Whiting-Turner Contracting Co.
(“Whiting-Turner”). For the following reasons,
North American's motion to dismiss will be denied.
30, 2010, The United Illuminating Company (“UI”)
and Whiting-Turner entered into an agreement for the
construction of The United Illuminating Central Facility
Project located in Orange, Connecticut. The agreement
required the construction of an office building, an
operations building, and related parking lots and common
April 21, 2011, North American as surety executed and
delivered a performance bond for The United Illuminating
Central Facility, naming B&W Paving as principal and
Whiting-Turner as obligee. Construction of the parking lots
and common driveways was completed in 2012.
alleges that during its performance on the Project, B&W
Paving breached and defaulted on its obligations under the
B&W Paving subcontract, including, but not limited to:
B&W Paving installed an insufficient quantity of asphalt
or otherwise improperly and/or incompletely installed the
asphalt for the parking lots and driveways, failed and
refused to remove and replace its nonconforming work and
breached its warranties.
2016, Whiting-Turner made a claim on the B&W Paving
performance bond through several communications with North
American. Whiting-Turner alleges that North American is
liable by reason of the foregoing breach of the B&W
Paving performance bond for any and all damages and costs
arising from B&W Paving's breach and default,
including attorney's fees.
function of a motion to dismiss is "merely to assess the
legal feasibility of the complaint, not to assay the weight
of the evidence which might be offered in support
thereof." Ryder Energy Distribution v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984).
When deciding a motion to dismiss, the Court must accept all
well-pleaded allegations as true and draw all reasonable
inferences in favor of the pleader. Hishon v. King,
467 U.S. 69, 73 (1984). The complaint must contain the
grounds upon which the claim rests through factual
allegations sufficient “to raise a right to relief
above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007). A plaintiff
is obliged to amplify a claim with some factual allegations
in those contexts where such amplification is needed to
render the claim plausible. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
American argues that Whiting-Turner fails to assert a
plausible claim for breach of the bond for several reasons:
(1) Absent performance of the remedial paving work by
Whiting-Turner, North American has no obligation to reimburse
Whiting-Turner for such work under the bond; (2) Given the
one-year limitation on the subcontract's warranty
obligation, Whiting-Turner's claim is untimely; (3)
Whiting-Turner's allegations that B&W is in default
directly contradict Whiting-Turner's posture as
defendant, including express denials that any defective work
was performed on the project; (4) Whiting-Turner's claim
is asserted conditionally, demonstrating that actual default
under the bond is merely a possibility; and (5)
Whiting-Turner's claim is internally inconsistent with
allegations in its underlying claim against B&W.
of Remedial Work
American argues that absent performance of the remedial work
by Whiting-Turner, which has not occurred, North American has
no obligation under the bond. The bond provides in relevant
the Surety shall, within ten (10) calendar days after notice
of default from the Obligee, notify the Obligee of its
election either to promptly proceed to remedy the default or
promptly proceed to complete the contract in accordance with
and subject to its terms and conditions. In the event the
Surety does not elect to exercise either of the above stated
options, then the Obligee thereupon shall
have the remaining work completed, Surety to remain liable
hereunder for all expenses, including attorney's fees, of
(emphasis added). North American contends that since it
elected to exercise neither of the first two stated options
after notice of default, Whiting-Turner's right to
reimbursement is expressly conditioned upon Whiting-Turner
completing the paving work. According to North American, as
Whiting-Turner has declined ...