Amer Bankers Ins v. Irricon ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-10463
Summary Calendar
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AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA,
Plaintiff-Appellee,
VERSUS
IRRICON, SHAHID RASUL, and AFSHAN RASUL,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:98-CV-1014-BD-X)
_________________________
November 1, 1999
Before JOLLY, SMITH, and BARKSDALE, were valid, so American Bankers paid on the
Circuit Judges. claims and demanded reimbursement from
Irricon and the Rasuls. When payment was
PER CURIAM:* not tendered, American Bankers sued, and the
magistrate judge, sitting by consent, entered
American Bankers Insurance Company of summary judgment in favor of American
Florida (“American Bankers”) issued a Bankers.
payment bond and a performance bond on
behalf of an entity known as Irricon for The defendants invite us to expand the
landscaping and irrigation work Irricon was to established contract law of Texas by reading
perform. Shahid and Afshan Rasul signed an into it a requirement that surety contracts that
indemnity agreement in consideration of the give the surety the sole right to determine
issuance of the bonds. whether claims against the surety should be
paid nevertheless require that the surety make
The agreement gave American Bankers sole a reasonable investigation of the events leading
discretion to decide whether any claims were to the demand before paying the claim. We
to be paid or otherwise disposed of. After need not address that issue of law, however,
Irricon failed to complete the project timely, because the defendants responded with
the entity for which the work was performed nothing but a general denial to American
made claims that American Bankers decided Bankers’s general averment that all conditions
precedent to the debt had been met.
*
Pursuant to 5TH CIR. R. 47.5, the court has To raise properly their contention that
determined that this opinion should not be American Bankers was required to, and had
published and is not precedent except under the failed to, perform a “reasonable investigation,”
limited circumstances set forth in 5TH CIR. R. defendants needed to have denied that
47.5.4.
supposed condition with particularity.1
Because they failed to deny with specificity the
occurrence of the supposed condition
precedent of “reasonable investigation,” the
issue was not properly raised in the district
court,2 so we will not consider it.3
As for defendants’ claim that the magistrate
judge relied on “federal common law” rather
than the law of Texas, the fact that the
magistrate judge did not cite Texas law does
not indicate that he failed to follow it, and the
fact that he noted that American Bankers had
conducted an independent investigation does
not indicate that he understood the claim to be
valid solely (or at all) because it had conducted
such an investigation. This issue of federal
common law simply does not arise in this case.
AFFIRMED.
1
See FED. R. CIV. P. 9(c) (“In pleading the
performance or occurrence of conditions precedent,
it is sufficient to aver generally that all conditions
precedent have been performed or have occurred.
A denial of performance or occurrence shall be
made specifically and with particularity.”).
Defendants could have made this particularized
denial in their answer or their response to the
motion for summary judgment, provided it was
“accompanied by affidavits and other supporting
documents evidencing nonperformance or
nonoccurrence.” See 2 JAMES W. MOORE ET AL.,
MOORE’S FEDERAL PRACTICE § 9.04[3] (3d ed.
1999). Although defendants did aver in their
response to the motion for summary judgment that
“[h]ad [American Bankers] conducted a sufficient
investigation, it would have determined that” the
debt was not owed, the defendants failed to provide
evidentiary support for the contention that the
investigation was either insufficient or
unreasonable. Even absent any deficiency in the
answer to the complaint, the response to the motion
would have been inadequate to defeat summary
judgment.
2
See Trinity Carton Co. v. Falstaff
Brewing Corp., 767 F.2d 184, 192 (5th Cir. 1985).
3
See Wiley v. Offshore Painting Contractors,
Inc., 711 F.2d 602, 609 (5th Cir. 1983); Guerra v.
Manchester Terminal Corp., 498 F.2d 641 (5th
Cir. 1974).
2