St. Paul Fire Marine Insurance Co., Respondent, vs. Advanced Concrete Innovations, Inc., et al., Appellants.

St. Paul Fire Marine Insurance Co., Respondent, vs. Advanced Concrete Innovations, Inc., et al., Appellants. A05-1822, Court of Appeals Unpublished, May 23, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1822

 

 

St. Paul Fire

Marine Insurance Co.,
Respondent,
 
vs.
 
Advanced Concrete

Innovations, Inc., et al.,
Appellants.

 

 

Filed May 23, 2006

Affirmed
Crippen, Judge*

 

Hennepin County District Court

File No. CT 05-003963

 

 

Jennifer M. Berquist, The Gurstel Law Firm, 401 North Third Street, Suite 590, Minneapolis, MN 55401 (for respondent)

 

Benjamin R. Skjold, Hellmuth & Johnson, PLLC, 10400 Viking Drive, Suite 500, Eden Prairie, MN 55344 (for appellants)

 

            Considered and decided by Hudson, Presiding Judge, Worke, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellants Jeffrey and Gary Flood challenge the district court's summary judgment in favor of respondent St. Paul Fire Marine Insurance Company based on the surety's payments under a surety bond to appellant Advanced Concrete Innovations, Inc. and signed by Advanced and the individual appellants.  The individual appellants argue that because they are not named as parties to the agreement, they had no obligation to the insurance company; that even if their mere signature makes them parties, the agreement does not contain a promise to pay the corporation's debts; and that the agreement lacks consideration to them.  Because the plain language of the agreement as a whole, including a signature page signed by individual appellants, expresses their intent to be bound by the agreement of indemnity, we affirm. 

FACTS

            Appellant Advanced Concrete Innovations (Advanced), a concrete construction business, contracted with respondent St. Paul Fire Marine Insurance Company (St. Paul Fire Marine) to provide bonding for bridge construction in southern Minnesota through a general agreement of indemnity in October 2003.   The body of the indemnity agreement stated that Advanced was "the Undersigned" and recited obligations of "the Undersigned."  But the last page of the body of the agreement stated, "SIGNATURE OF ALL INDEMNITORS REQUIRED[,] SEE ATTACHED SIGNATURE PAGE(S)." 

            Individual appellants, corporate officers of Advanced, were not individually mentioned in the body of the agreement but each signed two signature pages attached to the indemnity agreement.  Both signature pages stated, "THIS PAGE IS ATTACHED TO, AND IS A PART OF, THE GENERAL AGREEMENT OF INDEMNITY OR RIDER DATED OCTOBER 1, 2003."  The Floods signed the first signature page, titled "Signature Page for Corporations," in their capacities as President and Vice President of Advanced, listing the corporation's address and tax number.  They signed the second signature page, titled "Signature Page for Individuals," without reference to the corporation, listing their individual addresses and social security numbers.  The Floods' signatures on the corporate signature pages were undated; their signatures on the individual signature pages were notarized on October 21, 2003. 

            Advanced incurred financial difficulties following the fraudulent conduct of a former employee, and claims were made on the bonds.  After notifying Advanced and the Floods, St. Paul Fire Marine made payments of $1,406,000 under the bonds and demanded reimbursement under the indemnity agreement.  Appellants refused to pay, and St. Paul Fire Marine filed suit for the amount paid on the bonds, plus interest and attorney fees. 

            Appellants filed a motion to dismiss the individual appellants from the case on the basis that the Floods never agreed personally to indemnify St. Paul Fire Marine as surety.   St. Paul Fire Marine moved for summary judgment.  The district court denied the motion to dismiss and granted summary judgment against appellants jointly and severally on the amount paid under the indemnity agreement, plus interest, costs, and disbursements.

D E C I S I O N

            On appeal from summary judgment, this court applies a de novo standard of review to determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law.   STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002).   This court reviews the evidence in the light most favorable to the party against whom judgment was granted.  Id.  But "the party resisting summary judgment must do more than rest on mere averments."  DLH, Inc. v Russ, 566 N.W.2d 60, 71 (Minn. 1997).    A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.  The district court may grant summary judgment based on its application of the law to undisputed facts.  Minn. Voyageur Houseboats, Inc. v. Las Vegas Marine Supply, Inc., 708 N.W.2d 521, 524 (Minn. 2006). 

            The  rules governing the requisites, validity, and construction of contracts apply to indemnity agreements.  Am. Druggists' Ins. Co. v. Shoppe, 448 N.W.2d 103, 104 (Minn. App. 1989).  Unless the terms of a contract are ambiguous, the construction and effect of a contract presents a question of law, which this court reviews de novo.  Trondson v. Janikula, 458 N.W.2d 679, 681 (Minn. 1990).  The primary goal of contract interpretation is to determine and enforce the parties' intent.  Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2004).  If a contract is unambiguous, the parties to the agreement are entitled to rely solely on the clear wording of their agreement to define their rights and responsibilities under that agreement.  See, e.g., Metro. Sports Facilities Comm'n v. Gen. Mills, Inc.,470 N.W.2d 118, 123 (Minn. 1991)(stating that where there is no ambiguity, the court must determine the parties' intentions from the language used).  This court reads contract terms in the context of the entire contract and will interpret a contract so as to give meaning to all of its provisions.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998).                

            Appellants do not dispute the liability of Advanced on the indemnity agreement, but claim that the individual defendants, Jeffrey and Gary Flood, are not named individually as parties to the agreement and so cannot be held liable under its terms.  They also assert that the agreement lacks both their promise to pay the corporation's debts and consideration for that promise.

            Sureties often require that "individuals involved in the principal's business execute Indemnity Agreements in which each individual agreed to jointly and severally indemnify the surety . . . ."  The Surety's Indemnity Agreement: Law & Practice 53 (Marilyn Klinger et al. eds., 2002).  And there is no merit in appellants' challenge to the adequacy of the text to sustain their individual liability.  The two signature pages affixed to the agreement, both signed by the Floods, contain identical language stating that the pages were a "PART OF [ ] THE GENERAL AGREEMENT OF INDEMNITY."  And the last page of the body of the agreement states expressly that the signatures of all indemnitors are required.  Thus, the use of the word "indemnitors," along with the Floods' signatures on the individual signature pageseparate from their signatures as corporate officers and with individual addresses and social security numbersunambiguously reflects the parties' intent to bind the Floods as individual indemnitors.

            A holding absolving the individual appellants would render their separate signatures on the individual signature page meaningless, an interpretation that this court is to avoid.  See Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 526 (Minn. 1990) (stating that because contract language is presumed to have effect, courts must avoid interpretation that would render provision meaningless).  Further, because the bonds were issued in the name of the corporation, not the Floods as individuals, the Floods have no claim that they were undertaking a separate obligation unrelated to that of the corporation.  Cf. Anchor Cas. Co. v. Bird Island Produce, Inc., 249 Minn. 137, 143-44, 82 N.W.2d 48, 53 (1957) (holding that when applications for surety bonds stated that individuals were applying for individual bonds, even though surety may have issued bond to corporation organized by individuals on basis of bond applications, parol evidence was inadmissible to show that applications were indemnity agreements to protect surety against loss by reason of a default on the bonds).  

            The Floods have cited no legal authority for their argument that separate consideration is required to bind them under the agreement as individual guarantors, apart from their signatures in that capacity.  And there is no merit in their contention that their signatures on October 21 did not provide consideration for their execution of the agreement dated October 1.  The plain language of the October 1 agreement, stating that the signatures of all indemnitors are "required," demonstrates the parties' intent not to be bound on the indemnity agreement until the signatures of all indemnitors, including the Floods as individuals, were obtained.  See, e.g., Dataserv Equip., Inc. v. Tech. Fin. Leasing Corp., 364 N.W.2d 838, 841 (Minn. App. 1985) (determining that when parties know that execution of written contract is condition precedent to their being bound, no binding contract exists until written contract is executed), review denied (Minn. May 31, 1985).

            The district court did not err in ordering summary judgment for respondent, and we affirm. 

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.