Employers Mutual Casualty Co. v. Vigilotti (In re Vigilotti)

518 B.R. 191
CourtUnited States Bankruptcy Court, D. Connecticut
DecidedSeptember 12, 2014
DocketBankruptcy No. 12-31801 (JAM); Adversary No. 12-03079
StatusPublished

This text of 518 B.R. 191 (Employers Mutual Casualty Co. v. Vigilotti (In re Vigilotti)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Employers Mutual Casualty Co. v. Vigilotti (In re Vigilotti), 518 B.R. 191 (Conn. 2014).

Opinion

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

JULIE A. MANNING, Chief Judge.

I.Introduction

Employers Mutual Casualty Company (the “plaintiff”), seeks to have a debt arising from the granting of summary judgment and the subsequent judgment in the amount of $1,820,338.39 plus interest from the date of judgment, entered by the United States District Court for the Middle District of Louisiana (the “Louisiana Judgment”), declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B). The Louisiana Judgment was entered jointly, severally and in solido against Anthony R. Vigilotti and Tennille P. Vigilotti (the “defendants”), and a third entity not a party to this adversary proceeding.

The plaintiff has moved for summary judgment, arguing that the Louisiana Judgment should be afforded preclusive effect by this court on its nondischarge-ability claim under 11 U.S.C. § 523(a)(2)(B), and that the undisputed facts entitle the plaintiff to summary judgment in this case. For the reasons below, the plaintiffs motion is GRANTED.

II. Jurisdiction

The United States District Court for the District of Connecticut has jurisdiction over these proceedings pursuant to 28 U.S.C. § 1334(b), and the Bankruptcy Court derives its authority to hear and determine this matter on reference from the District Court pursuant to 28 U.S.C. §§ 157(a) and (b)(1). This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(I).1

III. Procedural History

On August 3, 2012, the defendants filed a Voluntary Petition under Chapter 7 of the Bankruptcy Code.

On November 9, 2012, the plaintiff initiated the instant adversary proceeding by filing a complaint (the “Complaint”).2 The Complaint seeks a declaration that the plaintiffs debt is nondischargeable, in whole or in part, under the provisions of 11 U.S.C. § 523(a)(2)(B).

On May 28, 2013, the plaintiff filed a motion for summary judgment (the “Motion”), arguing that the collateral estoppel effect of the Louisiana Judgment entitles it to judgment as a matter of law on all counts of the Complaint. On July 15, 2013, the defendants filed their opposition to the Motion. On July 22, 2013, the plaintiff filed its reply. The issues have been thoroughly briefed and the Motion is now ripe for decision.

IV. Undisputed Facts

A review of the Motion and documents appended thereto, the defendants’ opposition and documents appended thereto, the [194]*194parties’ Rule 56(a) Statements, and the examination of the record in the bankruptcy case and adversary proceeding, establishes the undisputed facts set forth below for the purposes of ruling on the Motion.

The defendants wholly owned and operated JW, a commercial construction business in Louisiana. In order to submit bids and perform work on certain construction and building projects, JW was required to obtain payment and performance bonds. JW and the defendants requested that the plaintiff, a commercial surety company, issue bonds naming JW as principal and various public entities as obligees.

On June 26, 2009, the defendants executed a General Application and Agreement of Indemnity (“GAI”) in favor of the plaintiff, in which the defendants agreed to “exonerate, indemnify, and keep indemnified [the plaintiff] from and against any and all liability for losses and/or expenses of whatsoever kind or nature (including but not limited to interest, court costs and counsel fees).”

In connection with the signing of the GAI, it is uncontested that the defendants provided inaccurate written information to the plaintiff concerning the defendants’ financial condition. It is also uncontested that JW defaulted on six (6) bonded projects, and failed to pay numerous subcontractors and suppliers to those projects. The plaintiff was then called upon to stand in JW’s place under the bonds it had issued and incurred significant losses thereby. The plaintiff further incurred losses as a result of JW’s defaults and the defendants’ subsequent failures to indemnify and post collateral with the plaintiff.

On February 11, 2011, the plaintiff filed suit against the defendants for indemnity and other relief in United States District Court for the Middle District of Louisiana in a case captioned Employers Mutual Casualty Company v. JW Consulting-Construction Management, L.L.C., et al., Case No. 3:11-cv-79-JJB-SCR (hereinafter the “Louisiana District Court Action”).

On March 10, 2011, the plaintiff amended its complaint in the Louisiana District Court Action to assert additional claims, including, inter alia, a claim for “misrepresentation in the inducement to issue bonds.”

On March 24, 2011, the defendants filed their answer to the plaintiffs original complaint and also asserted a counterclaim. On April 12, 2011, the defendants filed their answer to the plaintiffs amended complaint. It is uncontested that the defendants continued to participate in the Louisiana District Court Action for several months after the filing of their answer. It is further uncontested that the defendants failed to respond to the plaintiffs discovery requests in the Louisiana District Court Action.

On September 15, 2011, the defendants’ counsel filed a motion to withdraw from the case. Included in the motion was an affirmative representation regarding the specific address to which service of court documents on the defendants should be made. The motion to withdraw was granted on September 19, 2011.

On January 9, 2012, the plaintiff filed its motion for summary judgment. On March 26, 2012, the Louisiana District Court granted the plaintiffs motion for summary judgment, noting in its memorandum of decision that “[bjecause the defendants have failed to [provide the court with an accurate address], ... notices to the defendants on motion [sic] for summary judgment that were mailed informing them of the January 30, 2012 deadline for the opposition were returned as undeliverable ... [and t]he Court therefore treats this motion as unopposed and resorts to the evidence furnished by the plaintiff to de[195]*195termine whether those undisputed facts entitle it to judgment as a matter of law.”

In granting the plaintiff’s motion for summary judgment, the Louisiana District Court made several findings of fact and conclusions of law in its memorandum of decision dated March 26, 2012. These findings of fact included, inter alia:

[that the defendants ... provided plaintiff [sic] with a document entitled ‘Confidential Personal Financial Statement,’ making certain representations concerning the [defendantj’s personal financial conditions in order to induce plaintiff [sic] to execute payment and performance bonds on defendants’ [sic] behalf[;] ...

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Bluebook (online)
518 B.R. 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employers-mutual-casualty-co-v-vigilotti-in-re-vigilotti-ctb-2014.