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United States District Court for the Eastern District of Louisiana
May 12, 2021, Decided; May 12, 2021, Filed
CIVIL ACTION NO. 18-2885 SECTION M (4)
ORDER & REASONS
Before the Court are the objections of plaintiff Fucich Contracting, Inc. [*3] ("FCI") to the magistrate judge's ruling on a motion to compel.1 Defendants St. Bernard Parish Government ("SBPG")2 and Shread-Kuyrkendall and Associates, Inc. and XL Specialty Insurance Company (together, "SKA")3 oppose the motion. Having considered the parties' memoranda, the record, and the applicable law, the Court issues this Order & Reasons sustaining the objections in one respect but otherwise overruling them.
This case arises out of a construction dispute over a component-compatibility problem, specifically, a rotational conflict, between the engines and gear reducers intended for use in backup storm water drainage pumps critical to a public works improvement project known as the Lake Borgne Basin Levee District Pump Station #1 & #4 Pump Upgrade (the "Project").4 SBPG hired FCI as the Project contractor and SKA as the Project engineer. Pursuant to the Louisiana Public Works Act, Travelers Casualty and Surety Company of America ("Travelers") issued a performance and payment surety bond naming FCI as principal and SBPG as obligee.5 In connection with this bond, FCI, Clayton Fucich, and Kathleen Fucich (together, the "Fucich Parties") executed a general agreement of indemnity ("GAI") in favor of [*4] Travelers, agreeing to indemnify Travelers from loss and to deposit collateral if needed to compensate for any loss or anticipated loss.6
When the rotational conflict became apparent, SBPG informed Travelers that it intended to terminate FCI.7 FCI filed this lawsuit against SBPG and SKA, and SBPG did, in fact, terminate FCI several months later.8 SBPG filed a counterclaim and third-party demand seeking to hold FCI and SKA responsible for the rotational conflict and resulting failure to complete the Project. Travelers completed an independent investigation in which it concluded that the rotational conflict was caused by SKA.9 As a result, Travelers found that FCI did not have a duty to finish the Project.10 Since FCI, as Travelers's principal, did not (in its opinion) have a duty to finish the Project, Travelers, as surety, refused to complete the Project.11 SBPG then added Travelers to the lawsuit.12 Given the claims against FCI, Travelers sought to have the Fucich Parties provide it with collateral security. Pursuant to the collateral and indemnity provision in the GAI, this Court ordered the Fucich Parties to provide Travelers with $2,563,930.00 as collateral security.13 Thereafter, FCI filed [*5] a claim against Travelers for bad-faith breach of the GAI.14
SKA contends that during the September 2, 2020 corporate deposition of FCI, Clayton Fucich, as the designated representative of FCI, raised an advice-of-counsel defense to claims that FCI failed to mitigate its own damages and exacerbated SBPG's damages.15 As a result, SKA filed a motion to compel FCI to respond to discovery related to the defense.16 SKA argues that FCI (through Fucich) asserted the advice-of-counsel defense in two ways.17
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2021 U.S. Dist. LEXIS 91046 *; 2021 WL 1904859
FUCICH CONTRACTING, INC., et al. VERSUS SHREAD-KUYRKENDALL & ASSOCIATES, INC., et al.
Prior History: Fucich Contr., Inc. v. Shread-Kuyrkendall & Assocs., 2018 U.S. Dist. LEXIS 112516, 2018 WL 3329071 (E.D. La., July 6, 2018)
advice of counsel, deposition, settlement, attorney-client, communications, questions, waived, attend, privileged communication, motion to compel, discovery, Parties, engines, advice, magistrate judge, former counsel, collateral, argues