Aire Frio, S. A. v. United States Fidelity & Guaranty Co.

CROWE, District Judge.

This case having come on regularly on the 10th day of March, 1970, to try the issues between Aire Frio, S. A., plaintiff and United States Fidelity & Guaranty Corporation, remaining after the pre-trial conferences held herein and which are contained in the order entered herein on February 18, 1970, and the Court having heard the testimony of the witnesses in behalf of plaintiff and having perused the documentary evidence introduced by plaintiff and having heard the statements of respective counsel and the Court being fully advised in the premises, makes the following

FINDINGS OF FACT:

1. That the appeal taken by plaintiff before the USARSO Board of Contract Appeals is a “suit” within the meaning of paragraph 11(a) of the policy, which suit defendant was obligated to defend by means of the prosecution of the said appeal from the decision of the Contracting Officer dated July 22, 1965, (Corbetta Const. Co., Inc. v. Michigan Mutual Liability Co., 15 N.Y.2d 888, 258 N.Y.S.2d 423, 206 N.E.2d 357).

2. (a) That a copy of the written decision of the Contracting Officer dated July 22, 1965, was mailed to, and received by, defendant.

2. (b) That on September 27, 1965, plaintiff requested of defendant that the latter prosecute the appeal of plaintiff from the decision of the Contracting Officer dated July 22, 1965.

3. That defendant refused to prosecute plaintiff’s appeal from the decision of the Contracting Officer dated July 22, 1965.

4. That on September 27, 1965, defendant suggested to plaintiff that plaintiff select and employ counsel of plaintiff’s own choosing to prosecute the appeal from the decision of the Contracting Officer dated July 22, 1965, in which event defendant would reimburse plaintiff for the costs incurred by plaintiff in so employing counsel.

5. That pursuant to the suggestion of defendant plaintiff employed counsel of its own choosing to prosecute the said appeal, which counsel prosecuted the said appeal to a conclusion.

WHEREFORE, the Court arrives at the following

CONCLUSION OF LAW:

1. That plaintiff is entitled to judgment against defendant in the amount of $25,870.52 with interest thereon, and for its costs of suit.