Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO.:
WESTCHESTER FIRE INSURANCE
COMPANY, a foreign corporation,
Plaintiff,
v.
CM CONSULTING GROUP CORP., a
Florida corporation, and VIVIAN BONET,
individually, JOHN YANOPOULOS,
individually and LUCIA YANOPOULOS,
individually,
Defendants.
/
COMPLAINT FOR DAMAGES AND INJUNCTIVE
AND OTHER EQUITABLE RELIEF
Plaintiff, WESTCHESTER FIRE INSURANCE COMPANY, by and through its
undersigned counsel, hereby sues Defendants, CM CONSULTING GROUP CORP.,
VIVIAN BONET, JOHN YANOPOULOS, and LUCIA YANOPOULOS, and states as follows:
JURISDICTION AND VENUE
1.

This is an action for damages and equitable relief.

2.

Subject matter jurisdiction is based upon 28 U.S.C. 1332(a)(1), diversity of

citizenship. The parties are citizens of different states and the amount in controversy
exceeds the sum of Seventy-Five Thousand and 00/100 Dollars ($75,000.00), exclusive
of costs, interests and attorneys fees.
3.

Plaintiff,

W ESTCHESTER
1

FIRE

INSURANCE

COMPANY

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 2 of 16

(WESTCHESTER), is a corporation organized and existing under the laws of the

Commonwealth of Pennsylvania with its principal place of business in Philadelphia,
Pennsylvania.
4.

Defendant, CM CONSULTING GROUP CORP. (CM CONSULTING), is for-

profit corporation organized and existing under the laws of the State of Florida, whose
principal place of business is located in Miami, Miami-Dade County, Florida.
5.

Defendant, VIVIAN BONET (BONET), is an individual who resides in Miami,

Miami-Dade County, Florida and who is otherwise sui juris.

6.

Defendant, JOHN YANOPOULOS (J. YANOPOULOS), is an individual who

resides in Miami, Miami-Dade County, Florida and who is otherwise sui juris.
7.

Defendant, LUCIA YANOPOULOS (L. YANOPOULOS), is an individual who

resides in Miami, Miami-Dade County, Florida and who is otherwise sui juris.
8.

Venue is proper in this Court because it is the situs where the legal obligation

arose, where the corporate Defendant conducted business which gives rise to the instant
claims, and where the individual Defendant(s) reside.
9.

All conditions precedent to the filing of the instant action have occurred or

have otherwise been waived.

GENERAL ALLEGATIONS
A.

The Project, Bond and Agreement of Indemnity

10.

Upon information and belief around September 2012, MBV Owner, LLC

(Owner), as Owner entered into a contract with Plaza Construction Group Florida, LLC,
(Plaza), as contractor for the construction of the project referred to as EnV in Miami-Dade
County, Florida.
2

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 3 of 16

11.

On or about September 28, 2012 Plaza, as contractor entered into a

subcontract agreement (Subcontract) with CM CONSULTING GROUP/EURO INTERIOR,

INC. (CM) to provide labor, material and services to the project as more fully set forth in
the Subcontract which is attached as Exhibit A.
12.

In connection with the Subcontract, on or about February 6, 2013

WESTCHESTER, as surety, issued separate Performance and Payment Bonds, each

bearing bond No. K08840179 (collectively, the Bonds) on behalf of CM CONSULTING,
as principal, and in favor of Plaza, as obligee. True and correct copies of the Bonds are
attached hereto as Composite Exhibit B.
B.

The Agreement of Indemnity

13.

On or about November 26, 2012, and as a condition to WESTCHESTER

issuing the Bond on behalf of CM CONSULTING, each of CM CONSULTING, BONET, J.

YANOPOULOS, and L. YANOPOULOS (collectively the INDEMNITORS) executed an
Agreement of Indemnity (Indemnity Agreement) in favor of WESTCHESTER. A copy of
which is attached hereto as Exhibit C.
14.

The execution of the Indemnity Agreement and the INDEMNITORS

undertaking of the various responsibilities and obligations contained therein, were absolute
conditions precedent and prerequisites to WESTCHESTER issuing any Bond naming CM
as principal.
15.

Pursuant to the Third Article of the Indemnity Agreement, INDEMNITORS

jointly and severally pledged to exonerate, hold harmless and indemnify WESTCHESTER
for any losses and/or expenses which WESTCHESTER may sustain or incur in connection
with the issuance of the Bonds:
3

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 4 of 16

INDEMNITY AND HOLD HARMLESS

THIRD: PRINCIPAL(s) and INDEMNITOR(s) shall exonerate, hold harmless,
indemnify and keep indemnified SURETY from and against any and all claims,
demands and liability for losses, costs, and expenses of whatsoever kind or nature,
including but not limited to court costs, counsel fees, costs of investigation,
consultant fees, accountant fees, engineer or construction management fees,
together with interest thereon at the maximum rate allowed by law, which SURETY
may sustain or incur by reason of or in consequence of the:
A.
B.
C.
D.
E.

F.

G.

16.

Execution or procurement of the execution of BOND(s);

Failure by PRINCIPAL(s) or INDEMNITOR(s) to perform or comply with any
of the covenants or conditions of this AGREEMENT;
Any Event of Default herein;
Enforcement of any covenant of this AGREEMENT;
Performance of any investigation, attempt or attainment of any release in
connection with any BOND(s) or any loss or unpaid premium in connection
with any BOND(s);
Prosecution or defense of any action or claim in connection with any
BOND(s), whether SURETY, at its own discretion, elects to employ counsel
of its own selection or permits or requires PRINCIPAL(s) or
INDEMNITOR(s) to make arrangements for SURETYs legal representation;
and
Attempt to recover losses or expenses paid or incurred in connection with
this AGREEMENT, CONTRACT(s) and/or BOND(s). (Emphasis Added).

Pursuant to the Third Article of the Indemnity Agreement, the INDEMNITORS

agreed to make payment to WESTCHESTER as soon as liability exists or is asserted

against WESTCHESTER, whether or not WESTCHESTER has made any payment under
the Bond:
Payment shall be made to SURETY by the PRINCIPAL(s) and/or
INDEMNITOR(s) as soon as liability exists or is asserted against SURETY,
whether or not SURETY shall have made any payment therefore. Such
payment shall be equal to whatever amount SURETY, in its judgment, shall deem
sufficient to protect it from loss. SURETY shall have the right to use the payment
or any part thereof, in payment or settlement of any liability, loss or expense for
which PRINCIPAL(s) and/or INDEMNITOR(s) would be obligated to indemnify
SURETY under the terms of this AGREEMENT. (Emphasis Added).

17.

Pursuant to the Fourth Article of the Indemnity Agreement, the

INDEMNITORS, are obligated, jointly and severally, to post collateral security with
4

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 5 of 16

WESTCHESTER sufficient to cover any reserves established by WESTCHESTER for any

possible liability or loss under the Bond:
RESERVE-DEPOSIT
FOURTH: If for any reason the SURETY shall deem it necessary to establish
or to increase a reserve to cover any possible liability or loss for which the
PRINCIPAL(s) and INDEMNITOR(s) will be obligated to indemnify SURETY
under the terms of this AGREEMENT, PRINCIPAL(s) and INDEMNITOR(s) will
deposit with SURETY, immediately upon demand, a sum of money equal to
such reserve and any increase thereof as collateral security to SURETY for
such liability or loss.
SURETY shall have the right to use such deposit, or any part thereof, in payment
or settlement of any liability, loss or expense for which PRINCIPAL(s) and/or
INDEMNITOR(s) would be obligated to indemnify SURETY under the terms of this
AGREEMENT. SURETY shall have no obligation to invest, or to provide a return
on the deposit. PRINCIPAL(s) and INDEMNITOR(s) shall be entitled to the return
of any unused portion of the deposit upon termination of the liability of SURETY on
the BOND(s) and the performance by PRINCIPAL(s) and INDEMNITOR(s) under
the terms of this AGREEMENT. (Emphasis Added).

18.

Pursuant to the Sixth Article, the Indemnity Agreement establishes a trust

fund relationship between WESTCHESTER and the INDEMNITORS, as follows:

TRUST FUND
SIXTH: All payments received for or on account of any CONTRACT(s) shall be
held in a trust fund to assure the payment of obligations incurred or to be
incurred in the performance of any CONTRACT(s) and for labor, materials, and
services furnished in the prosecution of the work under any CONTRACT(s) or any
extensions or modifications thereto. All monies due and to become due under any
CONTRACT(s) are also trust funds, whether in the possession of PRINCIPAL(s),
INDEMNITOR(s) or otherwise. The trust funds shall be for the benefit and payment
of all obligations for which SURETY may be liable under any BOND(s). The trust
funds shall inure to the benefit of SURETY for any liability or loss it may have or
sustain under any BOND(s), and this AGREEMENT and declaration constitute
notice of such trust. The trust funds, unless otherwise restricted or regulated by
state or local laws, can be commingled with other funds, but the trust fund nature
and purpose as stated in this paragraph shall not be modified nor waived by this
commingling provision. (Emphasis Added).

19.

Pursuant to the Eighth Article of the Indemnity Agreement, the

INDEMNITORS assigned, transferred and conveyed to WESTCHESTER all rights of the

5

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 6 of 16

INDEMNITORS in and to any and all contracts and bonds including unpaid and
outstanding balances due thereunder, upon any event of default under the Indemnity
Agreement:
ASSIGNMENT
EIGHTH: With respect to each BOND(s) executed by SURETY, PRINCIPAL(s) (with
INDEMNITOR(s) hereby consenting), assigns, transfers and conveys to SURETY
but subject to the trust created herein:
A.

B.
C.

D.

E.

F.

G.
H.

All monies due or to become due to PRINCIPAL(s) arising our of or in any way
related to CONTRACT(s) covered by BOND(s), including but not limited to,
progress payments, deferred payments, retained percentages, compensation for
extra work, undisbursed loan funds, deposit or reserve accounts, and all collateral
pledged by PRINCIPAL(s) and INDEMNITOR(s) to third parties in connection with
the CONTRACT(s) or BOND(s);
All of the rights of PRINCIPAL(s) in, or arising in any manner out of, all
CONTRACT(s) or BOND(s);
All of the rights, title and interest of the PRINCIPAL(s) in and to all machinery,
equipment, plant, tools and materials which are now, or may hereafter be, about or
upon the site or sites of any and all of the work under CONTRACT(s) or BOND(s)
or elsewhere, including materials purchased for or chargeable to any and all such
CONTRACT(s) or BOND(s), which may be in the process of manufacture or
construction, in storage elsewhere, or in transportation to any and all of said sites;
All of the rights, title and interest of the PRINCIPAL(s) in and to all subcontracts let
or to be let in connection with CONTRACT(s) or BOND(s), and in and to all
SURETY bonds in favor of PRINCIPAL(s) as oblige relating to such CONTRACT(s)
or BOND(s);
All of the rights, title and interest of PRINCIPAL(s) in and to any actions, causes of
action, claims, demands or proceeds of such actions, causes of action, claims or
demands whatsoever which PRINCIPAL(s) may have or acquire against any party
in connection with the CONTRACT(s) including but not limited to those against
obligees on BOND(s) design professionals, subcontractors, laborers or materialmen
or any person furnishing or agreeing to furnish or supply labor, material, supplies,
machinery, tools, inventory or other equipment in connection with or on account of
any CONTRACT(s) and against any SURETY or sureties of any obligee,
subcontractor, laborer, or materialmen;
All monies due or to become due to PRINCIPAL(s) or INDEMNITOR(s) on any
policy of insurance relating to any claims or suites arising our of CONTRACT(s) or
BOND(s) including but not limited to, claims or suits under builders risk, fire or
employee dishonesty policies, including premium refunds:
Any and all rights, title and interest in or use of any patent, copyright or trade secret
which is or may be necessary for completion of CONTRACT(s); and
The above assignment rights are in addition to and not in substitution of any other
rights of SURETY arising by operation of law or otherwise.

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 7 of 16

The above assignments shall be come effective as of the date of this AGREEMENT
or the date of the BOND(s) whichever occurs first. SURETY agrees to forbear
exercising the rights granted to it under this Eighth paragraph until the occurrence
of an EVENT OF DEFAULT. Upon the occurrence of an EVENT OF DEFAULT,
PRINCIPAL(s) authorizes and empowers SURETY, or any person or persons
designated by SURETY, to execute in the name of PRINCIPAL(s) any instruments
deemed necessary or desirable by SURETY to provide absolute title to SURETY of
any funds, property and rights as are hereby assigned, transferred or conveyed,
and PRINCIPAL(s) hereby authorize SURETY or any person or persons designated
by SURETY to take immediate possession of such funds, property and rights, to
collect such sums as may be due and to endorse, in the name of the PRINCIPAL(s)
and to collect any checks, drafts, warrants and or other instruments made and
issued in payment of such sums.
SURETY is authorized to assert and prosecute any right or claim assigned in this
AGREEMENT in the name of PRINCIPAL(s) and to compromise and settle such
rights or claim on such terms as it considers reasonable.
SURETY may sell any property assigned to it pursuant to this AGREEMENT at
public or private sale, with or without notice, at any time or place, without incurring
liability of any king to PRINCIPAL(s) or INDEMNITOR(s). (Emphasis Added).

20.

Pursuant to the Sixteenth Article of the Indemnity Agreement, the

INDEMNITORS agree to give WESTCHESTER full access to all of the INDEMNITORS

books and records related to the Project or to the INDEMNITORS obligations under the
Indemnity Agreement:
BOOKS AND RECORDS
SIXTEENTH: At any time during this AGREEMENT and until such time as the
liability of SURETY under all BOND(s) is terminated and SURETY is fully
reimbursed all amounts due under this AGREEMENT, SURETY shall have the right
of access to the books, records, accounts, documents, computer software and other
computer stored information of PRINCIPAL(s) and INDEMNITOR(s), wherever
located, for the purpose of inspection, copying or reproduction. Any financial
institution, depository, warehouse, supply house, or other person, firm or
corporation, when requested by SURETY, is hereby authorized and required to
furnish SURETY any and all information requested, including, but not limited to: (i)
the status of the work under any CONTRACT(s) being performed by PRINCIPAL(s);
(ii) the condition of performance of any CONTRACT(s); (iii) payments or pending
payments of accounts including undisbursed loan proceeds; and (iv) full information
about all bank accounts and loans and any collateral deposited in connection
therewith. Upon SURETYS request, PRINCIPAL(s) and INDEMNITOR(s) shall
immediately deliver to SURETY, or its designee, at a time and place and in a
manner determined by SURETY, such books, records, accounts, documents,

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 8 of 16

computer software and other computer stored information, and contracts in

whatever form, as and when requested by SURETY.

21.

Pursuant to the Fifteenth Article of the Indemnity Agreement, the

INDEMNITORS have agreed to provide Westchester information as to their financial

condition.
RIGHT TO INFORMATION
FIFTEENTH: PRINCIPAL(s) and INDEMNITOR(s) will furnish SURETY such
information as it may request from time to time concerning the financial condition
of PRINCIPAL(s) and INDEMNITOR(s), the status of work under any
CONTRACT(s), and/or the payment of obligations in connection therewith.

22.

Pursuant to the Third Article and as otherwise stated in the Indemnity

Agreement, the INDEMNITORS have agreed that WESTCHESTER shall be entitled to

recover all attorneys fees and costs incurred in connection with any Bonds.
C.

Plazas Default Termination of CM

23.

CM performed certain work under the Subcontract on the Project.

24.

On March 5, 2014, Plaza issued its initial Notice of Default of CM under the

Subcontract. A true and correct copy of the initial Notice of Default is attached hereto as
Exhibit D.
25.

Notwithstanding the initial Notice of Default, Plaza permitted CM to proceed

with performance under the Subcontract and thereafter made payment to CM.
26.

On or about July 22, 2014, Plaza issued to CM its Notice of Subcontractor

Default an Intent to Terminate the Subcontract, a copy of which is attached as Exhibit E.

27.

On or about July 30, 2014, Plaza issued its Notice of Termination of the

Subcontract. A copy of which is attached as Exhibit F.

28.

On or about July 30, 2014, Plaza made demand on WESTCHESTER under

8

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 9 of 16

the Bond. A copy of which is attached as Exhibit G.

29.

As a result of the pending claim asserted by Plaza, WESTCHESTER has and

will continue to incur substantial damages in investigating, defending against and/or

resolving such claims.
30.

Furthermore, WESTCHESTER has concerns and is exposed to potential

additional claims from subcontractors, suppliers and/or materialmen of CM who provided

goods and/or services on the Project and have not been paid.
31.

WESTCHESTER established a reserve account in the amount of

$1,300,000.00 on or about November 13, 2014 and WESTCHESTER demanded that the
INDEMNITORS immediately provide collateral security to WESTCHESTER in that amount.
A copy of which is attached hereto as Composite Exhibit H.
32.

Despite WESTCHESTERs demands, the INDEMNITORS failed and/or

refused to provide collateral security and on December 18, 2014 WESTCHESTER again
demanded that the INDEMNITORS immediately provide collateral security to
WESTCHESTER. A copy of which is attached as Exhibit I.
33.

Despite WESTCHESTERs demands, the INDEMNITORS continue to fail

and/or refuse to indemnify, exonerate and/or collateralize WESTCHESTER under the

Indemnity Agreement.
34.

WESTCHESTER has retained the services of the undersigned counsel to

represent its interest in this matter, and is required to pay a reasonable fee for such
services for which the INDEMNITORS are liable.
35.

WESTCHESTER has duly performed its duties, obligations and conditions

under the Indemnity Agreement.

9

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 10 of 16

36.

All conditions precedent to maintaining this action have occurred, been

performed, been excused or otherwise been waived.

COUNT I - BREACH OF CONTRACT:
SPECIFIC PERFORMANCE/DEMAND FOR POSTING OF COLLATERAL
37.

WESTCHESTER realleges and incorporates the allegations in paragraphs

1 through 36 as if fully set forth herein.

38.

The INDEMNITORS have committed various breaches and defaults of the

Indemnity Agreement by, among other things:

a.

failing and refusing to pay, satisfy or resolve the Plazas claims;

b.

failing to exonerate, hold harmless and indemnify WESTCHESTER,

despite the demands, for the loss incurred, including attorneys fees,
consultants

fees,

and

other

costs

and

expenses

that

WESTCHESTER incurred as a result of issuing the Bond;

c.

failing to collateralize WESTCHESTER for the continuing and

anticipated loss that will be incurred as a result of issuing the Bond.

39.

As a result of the INDEMNITORS breaches of the Indemnity Agreement,

WESTCHESTER has suffered damages, including but not limited to the following, which
continue to accrue, and thus WESTCHESTERs damages are continuing in nature:
a.

the attorneys fees, consultants fees, and other costs and expenses
that WESTCHESTER has incurred and continues to incur as a result
of issuing the Bond.

40.

WESTCHESTER is entitled to specific performance of the INDEMNITORS

obligation to provide collateral security as provided in the Indemnity Agreement.

10

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 11 of 16

41.

WESTCHESTER is entitled to specific performance of the Books and

Records of INDEMNITORS related to any bonded obligation as set forth in the Indemnity
Agreement.
42.

WESTCHESTER is entitled to specific performance of the INDEMNITORS

obligation to furnish their books and records addressing their financial condition.
43.

WESTCHESTER is fearful and apprehensive that the INDEMNITORS are

or will become financially unable to pay any amounts that may be found owing to any
claimants against the Bonds for which WESTCHESTER may be liable, or that the
INDEMNITORS will sell, transfer, dispose of, lien, secure or otherwise divert or conceal
such assets.
44.

In the absence of the relief sought herein, WESTCHESTER will suffer

irreparable damage and loss because it may be forced to advance further funds in
connection with the potential claims on the Bonds without being duly secured by the
INDEMNITORS for its obligation under the Bonds.
45.

Unless the relief in the nature herein requested or its equivalent is granted,

WESTCHESTERs rights will be forever lost, depriving WESTCHESTER of adequate

security for its obligations under the Bonds.
46.

WESTCHESTER has a high probability of success on the merits as CM

CONSULTING failed to satisfy the pending and potential claims against the Bonds coupled
with pending allegations of default/termination on the project by Plaza, clearly triggering
the INDEMNITORS obligation under the Indemnity Agreement. WESTCHESTER has duly
performed its duties, obligations and conditions under the Indemnity Agreement and the
Indemnity Agreement provides for the relief sought in this Count.
11

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 12 of 16

47.

The threat and injury to WESTCHESTER outweighs the potential damage

to the INDEMNITORS and if the relief requested herein is granted and such relief would
not be adverse to the public interest.
WHEREFORE, WESTCHESTER demands judgment against the INDEMNITORS,
jointly and severally, for damages, investigation and consulting fees, providing satisfactory
collateral, specific performance of the Indemnity Agreement to provide collateral and
produce all books and records of INDEMNITORS, costs of this action, prejudgment
interest, attorneys fees, and such further relief as this Court deems necessary, just and
proper.
COUNT II - COMMON LAW INDEMNITY AGAINST CM CONSULTING
48.

WESTCHESTER realleges and incorporates paragraphs 1 through 36, as

if fully set forth herein.

49.

Their exists a special relationship between WESTCHESTER and CM

CONSULTING by virtue of issuing the Bond, which would make WESTCHESTERs liability
under the Bonds, if any, merely technical, secondary, vicarious constructive or derivative
to that of CM CONSULTING, which is actively and completely at fault for, and obligated to
pay any underlying liability on the Bonds.
50..

WESTCHESTER is solely without fault for any loss, expense or liability which

have and/or may arise.

51.

As a direct and proximate result of CMs breach and failure to honor its

obligations, WESTCHESTER has incurred and continues to incur damages, losses and
expenses, including attorneys fees, consultants fees, costs and expenses, by reason of
having executed the Bond which CM is liable to WESTCHESTER for.
12

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 13 of 16

WHEREFORE, WESTCHESTER requests that this Court enter Final Judgment

against CM CONSULTING for damages, attorneys fees, prejudgment interest, costs and
such further relief as this Court deems necessary, just and proper.
COUNT III
(Quia Timet)
52.

WESTCHESTER realleges and incorporates the allegations in paragraphs

1 through 36 above, as if fully set forth herein.

53.

This is an action for quia timet seeking injunctive and equitable relief.

54.

Plaza has asserted a claim and made demand upon WESTCHESTER to

perform and make payment under the Bonds.

55.

The INDEMNITORS are obligated to exonerate, indemnify and keep

WESTCHESTER indemnified from any liability for any losses or expenses.

56.

WESTCHESTER is entitled to be fully collateralized by the INDEMNITORS

before making payment and discharge of any alleged obligation under the Bonds.
57.

The INDEMNITORS have failed to satisfy their obligations under the

Indemnity Agreement by refusing to exonerate or otherwise post collateral with

WESTCHESTER sufficient to cover the actual and/or potential losses, fees, costs and
expenses incurred by WESTCHESTER.
58.

As a result of the INDEMNITORS breach of the Indemnity Agreement,

WESTCHESTER has sustained damages, costs, expenses and attorneys fees by reason
of having furnished and executed the Bonds and fears that it will suffer further damage due
to the alleged default and termination of CM CONSULTING and INDEMNITORS failure
to perform their obligations to WESTCHESTER.

13

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 14 of 16

59.

WESTCHESTER is fearful and apprehensive that INDEMNITORS are or will

become financially unable to pay any amounts that may be found owing to Plaza for which
WESTCHESTER may be liable along with costs, expenses and attorneys fees being
incurred by WESTCHESTER or that INDEMNITORS based upon their refusal to exonerate
WESTCHESTER will sell, transfer, dispose of, lien, secure or otherwise divert or conceal
their assets or will otherwise be financially unable to pay the costs, expenses and
attorneys fees incurred by WESTCHESTER, all of which will cause irreparable harm to
WESTCHESTER.
60.

In the absence of the immediate relief sought herein, WESTCHESTER will

suffer irreparable damage and loss because it may be forced to advance further funds in
connection with the pending and potential claims on the Bonds without being adequately
secured by the INDEMNITORS as they agreed under the Indemnity Agreement.
61.

WESTCHESTER is without an adequate remedy at law and will be

irreparably and permanently injured if this Court does not grant the relief sought herein.
62.

By virtue of the rights under the Indemnity Agreement, the common law and

equitable doctrine of quia timet, WESTCHESTER is entitled to have the INDEMNITORS

post funds or other collateral and security with WESTCHESTER as set forth in the
Indemnity Agreement. Unless the relief herein is granted WESTCHESTERS full right of
quia timet will be forever lost, depriving WESTCHESTER of adequate security for its
obligations under the Bonds.
63.

In addition, WESTCHESTER is entitled to a full and complete accounting of

all assets owed by the INDEMNITORS and full and complete access to all financial books,
records and accounts maintained by or for the INDEMNITORS.
14

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 15 of 16

64.

WESTCHESTER has a high probability of success on the merits as the

pending allegations of CMs default and termination under the Bond and Project has clearly
triggered INDEMNITORs obligation under the Indemnity Agreement.
65.

The threatened injury to WESTCHESTER outweighs the potential damage

to the INDEMNITORS if the relief requested herein is granted. Such would not be adverse
to the public interest.
WHEREFORE, WESTCHESTER requests this Court enter an Order and Final
Judgment:
a. preventing the INDEMNITORS from diverting or disbursing any funds relating to
the Bonds or Project without WESTCHESTERs express and written approval;
b.

compelling the INDEMNITORS to post necessary collateral to secure

WESTCHESTER against any incurred and alleged liability, losses, expenses or fees;
c. attaching or freezing the INDEMNITORS assets until appropriate collateral is
posted to adequately protect WESTCHESTER;
d. requiring the INDEMNITORS to render to WESTCHESTER a full and complete
accounting of all assets owned by them or in which they, jointly or severally, have any
interest;
e. requiring the INDEMNITORS to allow WESTCHESTER full and complete access
to all financial books, records, and accounts maintained by or for them;
f.

permanently enjoining and restraining the INDEMNITORS from selling,

transferring, disposing of, or liening any assets or property, and further enjoining and
restraining the INDEMNITORS from allowing any assets or property to be liened, unless
and until WESTCHESTER shall be placed in funds;
15

Case 1:15-cv-20176-JEM Document 1 Entered on FLSD Docket 01/16/2015 Page 16 of 16

g. granting a lien upon all assets and property, including realty, personalty and
mixed, in which the INDEMNITORS have any interest. WESTCHESTER further requests
that such lien(s) shall secure WESTCHESTER against any loss it may sustain or incur by
virtue of its having executed the Bonds. WESTCHESTER further requests that such lien(s)
remain in effect unless and until WESTCHESTER is placed in funds as requested above;
h. requiring the INDEMNITORS, jointly and severally, to pay all attorneys fees,
costs, and expenses that WESTCHESTER has incurred;
i. granting such further relief as this Court deems just and proper.

DATED this 16th day of January, 2015.

WELBAUM GUERNSEY
Attorneys at Law

Attorneys for Defendant Westchester Fire

Insurance Company
901 Ponce de Leon Blvd., PH Suite
Coral Gables, Florida 33134
Phone: 305-441-8900
Fax:
305-441-2255
Email: jgregory@welbaum.com
lboyd@welbaum.com

By: /s/ John Gregory

John Gregory, Esq.
Florida Bar No.: 366005

16