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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

Western Surety Company,

) ) Plaintiff, ) ) v. ) ) Cooper River Construction Company, Inc., ) Edward Southard Sr., and ) Patricia P. Southard, ) ) Defendant. ) ____________________________________)

C.A. No.: 2:12-cv-2561-PMD

ORDER

This matter is before the Court upon Plaintiff Western Surety Company's ("Western Surety") motion for summary judgment ("Motion") against Defendants Cooper River Construction Company, Inc. ("Cooper River"), Edward Southard Sr., and Patricia P. Southard (collectively, "Defendants" or "Indemnitors"). For the reasons set forth below, the Court grants Western Surety's Motion. BACKGROUND On October 1, 2009, Western Surety issued payment and performance bonds to Cooper River for several state road improvement projects. Each Defendant executed a General

Agreement of Indemnity ("GAI") to induce Western Surety to issue these and other bonds. The Indemnitors admit to the existence of the bonds and the applicability of the GAI to the projects covered by those bonds. Banks Construction, a subcontractor for Cooper River, made several claims for payment against Western Surety and Cooper River. Western Surety demanded that the Indemnitors deposit with it sufficient collateral with regard to these claims. The Indemnitors refused to

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deposit collateral with Western Surety. Western Surety eventually satisfied $218,028.14 of Banks Construction's claims against Western Surety. Cooper River entered into a settlement agreement on May 10, 2012, in which it agreed to pay $40,000 to satisfy claims of the Dorchester County Tax Authority for a project known as Gum Branch. Performance on the settlement agreement would have settled the Dorchester County Tax Authority's claims against Western Surety; however, Cooper River did not timely tender funds as it had agreed. On March 13, 2013, ten months after the settlement agreement was executed, Western Surety paid the funds and took assignment of the settlement agreement. Cooper River thereafter reimbursed Western Surety in the amount of $40,000. However, Cooper River did not reimburse Western Surety for the attorneys' fees expended in the enforcement of the settlement agreement. Western Surety filed this action on September 5, 2012, asserting causes of action for breach of contract and specific performance. In its complaint, Western Surety alleges that, pursuant to the terms of the GAI, it is entitled to be reimbursed by Cooper River, its principal, and the individual Defendants for all sums Western Surety has expended and must expend, as surety, by reason of having executed the bonds. On May 6, 2013, Western Surety filed the instant motion for summary judgment. Defendants filed their response on May 21, 2013, and Western Surety filed a reply affidavit on June 7, 2013. The Motion is ripe for judgment. JURISDICTION This Court has subject matter jurisdiction over this matter based on 28 U.S.C.

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