North American Leasing, Inc. v. NASDI Holdings, LLC

IN THE SUPREME COURT OF THE STATE OF DELAWARE
NORTH AMERICAN LEASING, §
INC., a Michigan corporation, DORE § No. 192, 2020
& ASSOCIATES CONTRACTING, §
INC., an Indiana corporation, NASDI, § Court Below: Court of Chancery
LLC, a Delaware limited liability § of the State of Delaware
Company, and YANKEE §
ENVIRONMENTAL SERVICES, § C.A. No. 2017-0399
LLC, a Delaware limited liability §
Company, §
§
Defendants Below, §
Appellants, §
§
v. §
§
NASDI HOLDINGS, LLC, a Delaware §
limited liability company, and GREAT §
LAKES DREDGE AND DOCK §
CORPORATION, a Delaware §
Corporation, §
§
Plaintiffs Below, §
Appellees. §
Submitted: January 12, 2022
Decided: April 11, 2022
Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and
MONTGOMERY-REEVES, Justices, constituting the Court en banc.
Upon appeal from the Court of Chancery. AFFIRMED.
Joseph B. Cicero, Esquire, Paul D. Brown, Esquire, CHIPMAN BROWN CICERO
& COLE, LLP, Wilmington, Delaware; Mark L. McAlpine, Esquire, Douglas W.
Eyre, Esquire (argued), MCALPINE PC, Auburn Hills, Michigan, for Appellants,
North American Leasing, Inc., Dore & Associates Contracting, Inc., NASDI, LLC,
and Yankee Environmental Services, LLC.
Brian C. Ralston, Esquire, Mathew A. Golden, Esquire, POTTER ANDERSON &
CORROON LLP, Wilmington, Delaware; Michael Dockterman, Esquire (argued),
STEPTOE & JOHNSON, LLP, Chicago, Illinois, for Appellees, NASDI Holdings,
LLC and Great Lakes Dredge and Dock Corporation
VAUGHN, Justice, for the Majority:
2
The disputes in this case arise from an Ownership Interest Purchase
Agreement dated April 23, 2014 (the “Agreement”). Pursuant to the Agreement,
Appellant North American Leasing, Inc. (“North American Leasing”), a Michigan
corporation, purchased Appellant NASDI, LLC (“NASDI”), a Delaware limited
liability company, and Appellant Yankee Environmental Services, LLC (“Yankee”),
also a Delaware limited liability company. NASDI is in the business of providing
demolition and site redevelopment services throughout the United States. The seller
was Appellee NASDI Holdings, LLC (“NASDI Holdings”), a Delaware limited
liability company, which before the sale, possessed all ownership interests in NASDI
and Yankee.
In Section 7.7 of the Agreement, Great Lakes Dredge and Dock Corporation
(“Great Lakes”), a Delaware corporation and the parent company of NASDI
Holdings, agreed that performance and payment bonds on existing projects being
performed by NASDI and Yankee at the time of the sale would remain in place for
the duration of each project. The Agreement also provided that North American
Leasing, NASDI, Yankee, and Appellant Dore & Associates Contracting, Inc.
(“Dore”), an Indiana company affiliated with North American Leasing, would
indemnify NASDI Holdings and its affiliates for any losses arising from those bonds
that Great Lakes agreed would remain in place on existing projects. North American
Leasing, NASDI, Yankee, and Dore will sometimes be collectively referred to as the
3
Defendants. NASDI Holdings and Great Lakes will sometimes be referred to as the
Plaintiffs.
After the sale of NASDI and Yankee was completed, Great Lakes incurred
losses from performance and payment bonds on a project known as the Bayonne
Bridge project. The Bayonne Bridge project was one of the existing projects being
performed by NASDI when NASDI was sold to North American Leasing. The
losses occurred in 2017 after NASDI notified the general contractor for the project
that NASDI would not be performing any further services. When that occurred,
NASDI Holdings and Great Lakes gave North American Leasing notices of claims
for indemnification for any losses resulting from the project’s performance and
payment bonds. The Defendants have taken the position throughout this litigation
that they have no obligation to indemnify the Plaintiffs because the Plaintiffs’ claims
notices were untimely under the Agreement. The Court of Chancery rejected the
Defendants’ contention and entered judgment against the Defendants for the total
amount of the Plaintiffs’ claim.
The Defendants make three arguments on appeal. First, they contend that the
Court of Chancery erred by failing to interpret the Agreement according to principles
of Delaware contract law. This contention centers on their argument that the
Plaintiffs did not give timely notices of the indemnification claims. Second, they
contend that the Court of Chancery erred by finding that they waived an affirmative
4
defense of set-off and/or recoupment. Their third claim is that the Court of Chancery
erred by granting the Plaintiffs the full amount of their indemnification claims,
without considering evidence that the total amount should have been reduced. For
the reasons that follow, we reject the Defendants’ claims and affirm the decision of
the Court of Chancery.
I. FACTS AND PROCEDURAL HISTORY
The Bayonne Bridge project was a subcontract with Skanska Koch Kiewit
Infrastructure Co. (“Skanska”) to perform certain demolition work in connection
with Skanska’s prime contract with the Port Authority of New York and New Jersey.
The project included replacement of the main span roadway and approach structures
of the Bayonne Bridge. The total price of NASDI’s subcontract was $20,359,375.
The subcontract required NASDI to furnish performance and payment bonds in an
amount equal to the subcontract price. NASDI provided separate performance and
payment bonds, each in the amount of $20,359,375, dated August 6, 2013. The
bonds were secured by an Agreement of Indemnity and an Equipment Utilization
Agreement executed by Great Lakes, NASDI Holdings, NASDI, and Yankee in
favor of Zurich American Insurance Company (“Zurich”).
Several provisions of the Agreement for the sale of NASDI and Yankee are
relevant to this appeal. Great Lakes’ agreement that performance and payment
bonds on existing projects would remain in place for the duration of each project is
5
set forth in Section 7.7(a) of the Agreement. In that section, Great Lakes agreed
“that each of the Performance/Payment Bonds set forth on Schedule 1.1(a) shall
remain in place until such time as such bond is no longer required under the contract
with respect to which such bond was put in place (as such contract is now in effect).”1
Great Lakes’ obligation under Section 7.7(a) was continuing until such time as no
bonds guaranteed by Great Lakes remained, a day referred to in the Agreement as
the “Bond Covenant Termination Date.”2 The bonds for the Bayonne Bridge project
were included on Schedule 1.1(a) to the Agreement so that, in connection with the
sale of NASDI, Great Lakes became obligated to maintain the bonds until they were
no longer required under the Bayonne Bridge subcontract.
The sale of NASDI required a new contractual arrangement concerning the
bonds procured for the Bayonne Bridge project. Zurich consented to release Great
Lakes, NASDI Holdings, NASDI, and Yankee from their obligations under the prior
agreement and agreed to secure the bonds in exchange for new agreements. One
was a Guarantee and Indemnity Agreement dated April 23, 2014, which obligated
Great Lakes to indemnify and hold Zurich harmless for any loss or liability arising
from the bonds. In another, Great Lakes executed a $20 million—later increased to
$30 million—letter of credit in favor of Zurich (the “Letter of Credit”).
1
App. to Opening Br. at A291.
2
Id.
6
Section 9.2 of the Agreement obligated the Defendants to indemnify the
Plaintiffs against seven potential losses. Section 9.2(a) provided for indemnification
for losses resulting from the breach of a representation, warranty, or covenant.
Section 9.2(e) obligated the Defendants to indemnify the Plaintiffs for any losses
arising from the performance and payment bonds that Great Lakes was required to
maintain on existing projects under Section 7.7(a), including the Bayonne Bridge
project.
On February 13, 2017, as it was scheduled to begin work on Stage 4 of the
Bayonne Bridge project, NASDI gave Skanska a Notice of Termination of the
Bayonne Bridge subcontract, stating NASDI’s intention to demobilize from the site
immediately. On February 14, 2017, NASDI Holdings and Great Lakes gave notice
to North American Leasing, pursuant to Section 9.3(a) of the Agreement, that
NASDI’s failure to perform under the Bayonne Bridge subcontract may result in
loses for which the Defendants would be obligated to indemnify the Plaintiffs
pursuant to Section 9.2(e).
On February 23, 2017, Skanska declared NASDI in default and terminated the
subcontract. On the same date, Skanska notified Zurich of NASDI’s alleged default
and made a demand on Zurich for performance under the performance bond.
On February 24, 2017, Zurich notified Great Lakes that it would look to Great
Lakes pursuant to the Guaranty and Indemnity Agreement, the Letter of Credit
7
Agreement, and the Letter of Credit, for indemnity relating to all loss, cost, or
expense that Zurich had incurred or may incur by reason of the bonds.
On March 2, 2017, Siefert Associates LLC (“Siefert”), a subcontractor of
NASDI’s on the Bayonne Bridge project, filed a proof of claim under the payment
bond, alleging that NASDI failed to pay $328,554 for labor and materials. On April
5, 2017, NASDI Holding and Great Lakes gave notice to North American Leasing
that the Siefert claim could result in losses for which the Defendants would be
obligated to indemnify the Plaintiffs pursuant to Section 9.2(e) of the Purchase
Agreement.
On May 11, 2017, Zurich began drawing down on the Letter of Credit. By
May 22, 2017, Zurich had completed that process, drawing a total of $20,881,824,
plus $52,204.56 for bank fees (the “2017 Losses”).
The Plaintiffs filed a Verified Complaint in the Court of Chancery on May 26,
2017, seeking indemnification from the Defendants for the full amount of the 2017
Losses. The Verified Complaint set forth three causes of action: 1) breach of
contract, alleging that the Defendants breached their indemnity obligation under
Section 9.2(e); 2) equitable subrogation; and 3) a claim for a declaratory judgment
that the Defendants had breached their indemnity obligation under Section 9.2(e).
The Defendants’ Answer denied the allegations of the complaint and asserted five
affirmative defenses: contractual limitations, asserting that the Plaintiffs’ action was
8
barred because the notices of a claim for indemnification given by the Plaintiffs to
North American Leasing on February 14, 2017, and April 5, 2017, were untimely
under Section 9.3(a) of the Agreement; failure to state a claim for which the relief
of equitable subrogation could be granted; unclean hands; failure to mitigate; and
set-off/recoupment.
The Plaintiffs filed a Motion for Partial Summary Judgment on their breach
of contract and declaratory judgment claims. With respect to the breach of contract
claim, the motion asked the court to enter judgment in the amount of $20,934,028—
the amount drawn down by Zurich on the Letter of Credit. The motion also sought
an adjudication that the Defendants’ first four affirmative defenses were not
sufficient to defeat summary judgment. None of the briefs filed in connection with
the Motion for Partial Summary Judgment made any mention of the Defendants’
fifth affirmative defense, set-off/recoupment.
In an opinion dated April 8, 2019, the Court of Chancery granted the
Plaintiffs’ motion for summary judgment on their breach of contract claim and the
affirmative defenses of unclean hands and failure to mitigate. The Defendants filed
a Motion for Reargument in which they made no mention of the set-off/recoupment
affirmative defense. The Court of Chancery denied the Motion for Reargument. The
Plaintiffs then moved for entry of final judgment. In its answering brief on that
motion, the Defendants argued that their affirmative defense of set-off/recoupment
9
had not been adjudicated and that adjudication of that defense should result in a
reduction of the Plaintiffs’ damages. In an order resolving the issues raised by the
Motion for Entry of Final Judgment, the court found that the Defendants waived the
set-off/recoupment affirmative defense by not raising it in response to the Motion
for Partial Summary Judgment or in their Motion for Reargument.
III. DISCUSSION
A. Breach of Contract
This Court reviews “questions of contract interpretation de novo.”3 Delaware
law “adheres to the objective theory of contracts, i.e., a contract’s construction
should be that which would be understood by an objective, reasonable third party.”4
“When interpreting a contract, this Court ‘will give priority to the parties’ intentions
as reflected in the four corners of the agreement,’ construing the agreement as a
whole and giving effect to all its provisions.”5 Furthermore, “a court must determine
the intent of the parties from the language of the contract.”6
The Defendants’ first claim is that the Court of Chancery misinterpreted the
Agreement by rejecting their contention that the Plaintiffs’ notices to North
3
Salamone v. Gorman, 106 A.3d 354, 367 (Del. 2014).
4
Id. at 367-68.
5
Id. at 368.
6
Id.10
American Leasing dated February 14, 2017, and April 5, 2017, asserting their
indemnification rights were untimely under the terms of the Agreement.
The giving of notice of a claim for indemnification is governed by Section
9.3(a) of the Agreement. It requires that an indemnitee give notice of a claim for
indemnification to the indemnitor:
within a reasonable time after such Indemnitee becomes
aware of the existence of any potential Claim by such
Indemnitee for Indemnification under this ARTICLE 9,
but in any event before the later of the Termination Date
or the survival period provided in Section 9.5 with respect
to particular representation or warranty to which the
matter applies (the “Applicable Claim Period”), arising
out of or resulting from: (a) any item indemnified pursuant
to the terms of Section 9.1 or 9.2 . . . .7
The “Termination Date” is defined in the Agreement as March 31, 2016.8
“Termination Date” appears in two other sections of the Agreement. One is
Section 9.5, which deals with “Survival of Representations and Warranties.” That
section provides that “[a]ll representations and warranties of Parent, Seller and the
Companies contained in this Agreement, as qualified by the Disclosure Schedules
hereto shall remain operative and in full force and effect until the Termination Date;
provided, that”9 certain representations and warranties “shall survive for the full
period of the applicable statutes of limitations plus 60 days.”10 The “Parent” under
7
App. to Opening Br. at A297.
8
Id. at A261.
9
Id. at A298.
10
Id. at A299.
11
the Agreement is Great Lakes.11 The “Seller” is NASDI Holdings.12 The
“Companies” are NASDI and Yankee.13 Thus, the representations and warranties
referred to in Section 9.5 are binding on the entities who entered the transaction from
the seller’s side, not North American Leasing or its affiliates. This section is easily
understood as providing a date, March 31, 2016, on which the seller’s
representations and warranties would come to an end, except for certain
representations and warranties that would survive for the full period of the statute of
limitations plus 60 days.
The other section in which the phrase “Termination Date” appears is Section
9.1(c). This section deals generally with “Indemnification of Purchaser.” Section
9.1(c) provides that NASDI and Yankee, the “Companies,” i.e., the companies being
sold, “shall maintain in effect, until the Termination Date, or such longer time as
there remains a contested claim of Company Breaches, insurance coverage in
amounts not less than as maintained by the Companies . . . as of the date of this
Agreement.”14 A “Company Breach” is defined in Section 9.1(a)(i) as “a breach of
or default in any of the representations or warranties given by the Parent, a Company
or Seller in this Agreement.”15 The phrase, “Termination Date,” therefore, as used
11
Id. at A250.
12
Id.13
Id.14
Id. at A297.
15
Id. at A295.
12
in Sections 9.5 and Section 9.1(c), applies only to the seller’s representations and
warranties.
The Defendants contend that the clause in Section 9.3(a) that begins, “but in
any event,” cuts off the running of “a reasonable time” for giving notice of an
indemnification claim and applies to all claims for indemnity regardless of the
subject matter of the claim. Under their view, notice must be given for all
indemnification claims of any kind before the Termination Date, except for those
claims that are subject to a later survival period under Article 9.5. Under this theory,
the Plaintiffs’ claims for indemnification for losses from the Bayonne Bridge project
bonds were barred after the March 31, 2016 Termination Date, even though the
claims did not come into existence until 2017.
The Plaintiffs contend that Section 9.3(a) required them to give the notices of
their indemnification claims within a reasonable time after they became aware that
NASDI had demobilized from the Bayonne Bridge project and that Seifert had
asserted a claim as an unpaid subcontractor. The clause beginning “but in any
event,” they contend, applies only to claims involving representations and warranties
that are subject to the Termination Date or a survival period as described in Section
9.5.
The question, therefore, is whether the clause in Section 9.3(a) beginning “but
in any event” is a limitation on the preceding “reasonable time” clause, or whether
13
it is an exception to that clause applicable only to indemnification claims arising
from the seller’s representations and warranties as discussed in Section 9.5.
In rejecting the Defendants’ contention, the Court of Chancery reasoned as
follows:
The Indemnifying Defendants’ interpretation is flawed.
By zeroing in on the words “in any event,” the
Indemnifying Defendants lose sight of the purpose of the
indemnification provisions as a whole. That purpose was
to indemnify Plaintiffs for seven types of “Losses” set
forth in Section 9.2. The fifth type of loss, set forth in
Section 9.2(e), is one “arising out of relating to or incurred
in connection with” the Bonds or Letter of Credit.
Plaintiffs’ bonding obligations under Section 7.7 remain
operative until the “Bond Covenant Termination Date,” or
the date when the sureties are no longer required by the
underlying projects. By interpreting the second clause as
terminating Plaintiffs’ indemnification rights relating to
the Letter of Credit before Plaintiffs’ obligation to
maintain the Letter of Credit ceases, Defendants
undermine the purpose of the indemnification
provisions.16
We agree with the Court of Chancery. The only reasonable and convincing
interpretation of Section 9.3(a) is the one advocated by the Plaintiffs. Section 9.3(a)
provides that the reasonable time within which notice of a claim must be given does
not begin to run until the indemnitee becomes aware of the existence of the claim,
that is, sometime after the claim comes into existence. The clause beginning “but in
any event” creates an exception for indemnity claims arising from the seller’s
16
Opening Br. Ex. A at 12-13.
14
representations and warranties, discussed in Section 9.5.17 The clause requires that
notice of a claim arising from a breach of the seller’s representations and warranties
must be given before the later of the Termination Date or a survival period provided
for in Section 9.5, depending upon which of the two applies to the particular matter
of the warranty or representation. The Defendants argue that the phrase “Applicable
Claim Period,” which appears at the end of the “but in any event clause” and in the
final sentence of Section 9.3, applies to all claims for indemnification. We construe
“Applicable Claim Period,” however, as denoting a reasonable time after an
indemnitee becomes aware of a claim, for most types of Article 9 claims, including
the ones asserted by the Plaintiffs in this case, or the Termination Date or the end of
a survival period for claims arising from alleged breaches of representations and
warranties discussed in Section 9.5.
This interpretation is the one most consistent with the Agreement’s other
relevant provisions. The survival periods have no relevance to the Plaintiffs’ claims
at all. Nothing in the Agreement provides any explanation as to why the parties
would intend to cut-off claims for indemnification arising from performance and
payment bonds before the Bond Covenant Termination Date, or even before the
17
Focusing on the phrase “in any event,” our colleagues in the dissent assert that this idiom
introduces a limitation, not an exception. While such rules of construction may be helpful in
some cases, we also think that this phrase must be read in the context of the provision and the
contract as a whole. For the reasons discussed herein, we believe “but in any event” introduces
an exception.
15
claims come into existence. We reject the Defendants’ contention that the Plaintiffs’
claims are barred because notice was not given until after the Section 9.5
Termination Date.18
B. Waiver of the Set-off/Recoupment Defense
The Defendants argue next that the Court of Chancery erred when it found
that they waived their affirmative defense of set-off/recoupment. This Court reviews
a trial court’s finding of waiver under the standard of plain error.19 “In order for this
Court to find plain error, the error complained of must be so clearly prejudicial to
substantial rights as to jeopardize the fairness and integrity of the trial process.”20
In an order resolving the issues raised by the Plaintiffs’ Motion for Entry of
Final Judgment, the Court of Chancery held that the Defendants had waived their
affirmative defense of set-off/recoupment. The Defendants contend that they were
not required to litigate that affirmative defense in response to the Plaintiffs’ Motion
for Partial Summary Judgment. A party filing a motion for partial summary
judgment may leave issues to be decided at trial that are outside the scope of the
motion.21 The Defendants argue that the Plaintiffs never challenged the Defendants’
18
The Defendants also argue that Section 9.7, which discusses exclusive remedies and
subrogation rights, supports their argument. We disagree. Section 9.7 merely sets forth and
preserves remedies that may be available to the contracting parties in addition to their contractual
rights to indemnification. Nothing in Section 9.7 suggests that subrogation was to be the
Plaintiffs’ sole remedy for a claim based on a surety bond after the Termination Date.
19
Med. Ctr. Of Del., Inc. v. Lougheed, 661 A.2d 1055, 1060 (Del. 1995).
20
Id.21
Del. Ct. Ch. R. 56.
16
set-off/recoupment defense in their Motion for Partial Summary Judgment and
sought only the trial court’s ruling as to liability, not damages. Because, they
contend, set-off/recoupment is a defense that pertains to damages, and damages were
not within the scope of the motion for partial summary judgment, they were not
required to brief the court on this issue and therefore did not waive this defense.
The Plaintiff’s Motion for Partial Summary Judgment, however, expressly
sought judgment on their breach of contract claim “in the amount of
$20,934,028.56,”22 a specific amount substantiated by a letter from Zurich. By
moving for judgment for the specific amount of their entire claim, it is evident the
Plaintiffs sought summary judgment on all issues relating to the breach of contract
claim, including affirmative defenses. The Defendants were on notice that they
should raise any issue, including any affirmative defense, that might reduce the
amount of damages the Plaintiffs sought in the motion. The Defendants’ failure to
raise the set-off/recoupment defense in their briefs is compounded by the fact that
they also did not raise the defense in their Motion for Reargument. There is no plain
error.
C. Damages
Lastly, the Defendants argue that the Court of Chancery erred in granting the
Plaintiffs the full amount of their indemnification claim without considering
22
App. to Opening Br. at A446.
17
evidence that the amount should be reduced. The Defendants argue that because the
Court of Chancery erred in its decision that the Defendants waived their set-
off/recoupment defense, they were unable to set forth evidence in opposition to the
Plaintiffs’ damages calculation. However, because we have found that the Court of
Chancery did not err when it found that the Defendants waived their set-
off/recoupment defense, the court did not err when it did not consider the
Defendants’ evidence regarding reduction of damages.
III. CONCLUSION
For the foregoing reasons, the judgment of the Chancery Court is affirmed.
18
TRAYNOR, Justice, dissenting, joined by SEITZ, Chief Justice:
Because the majority’s interpretation of the Ownership Interest Purchase
Agreement does not adequately account for the ordinary meaning of Section 9.3, we
respectfully dissent.
I
Delaware adheres to an objective theory of contracts, meaning that a
“contract’s construction should be that which would be understood by an objective,
reasonable third party.”23 Under this approach, our contractual analysis begins—
and often ends—with the plain terms of the contested provision, and “we ‘interpret
clear and unambiguous terms according to their ordinary meaning.’”24 Thus, “[i]f a
contract’s meaning is plain and unambiguous, it will be given effect” without
consideration of extrinsic evidence.25 On the other hand, “when the provisions in
controversy are reasonably or fairly susceptible of different interpretations or may
have two or more different meanings[,]” the provisions are ambiguous and extrinsic
evidence may be considered.26
23
Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010).
24
Leaf Invenergy Co. v. Invenergy Renewables LLC, 210 A.3d 688, 696 (Del. 2019) (quoting GMG
Capital Invs., LLC v. Athenian Venture Partners I, L.P., 36 A.3d 776, 780 (Del. 2012)); see Cox
Commc’ns, Inc. v. T-Mobile US, Inc., --- A.3d ----, 2022 WL 619700, at *5 (Del. Mar. 3, 2022).
25
Borealis Power Holdings Inc. v. Hunt Strategic Utility Inv., L.L.C., 233 A.3d 1, 9 (Del. 2020);
Exelon Generation Acq., LLC v. Deere & Co., 176 A.3d 1262, 1267 (Del. 2017).
26
Rhone–Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992)
(citing Hallowell v. State Farm Mut. Auto. Ins. Co., 443 A.2d 925, 926 (Del. 1982)); In re
Shorenstein Hays-Nederlander Theatres LLC Appeals, 213 A.3d 39, 56–57 (Del. 2019) (“When a
contract’s plain meaning, in the context of the overall structure of the contract, is susceptible to
19
II
For simplicity, this dissent refers to the appellants and defendants below as
“North American Leasing” or the “Defendants.” The Defendants were the buyers in
the transaction involved in this case. We refer to the appellees and plaintiffs below
as “NASDI Holdings” or the “Plaintiffs.” The Plaintiffs were the sellers in the
transaction and enjoyed the contractual indemnification right that is at issue.27
These parties carefully addressed remedies in Article 9 of the Ownership
Interest Purchase Agreement (the “Agreement”). Although they specified that “the
Indemnification rights set forth in this ARTICLE 9 are and shall be the sole and
exclusive remedies of the Parties to this Agreement,” they agreed to preserve claims
for common-law fraud and equitable subrogation related to certain bonding
obligations.28 Additionally, the parties limited the available indemnification rights
through Section 9.3, which requires that an indemnitee give notice of a claim
within a reasonable time after such Indemnitee becomes
aware of the existence of any potential Claim by such
Indemnitee for Indemnification under this ARTICLE 9,
but in any event before the later of the Termination Date
or the survival period provided in Section 9.5 with respect
to [the] particular representation or warranty to which
the matter applies (the “Applicable Claim Period”),
more than one reasonable interpretation, courts may consider extrinsic evidence to resolve the
ambiguity.” (internal quotation marks and citation omitted)).
27
App. to Opening Br. at A297. The Defendants also had indemnification rights, but they are not
at issue. See id. at A295.
28
Id. at A299.
20
arising out of or resulting from: (a) any item indemnified
pursuant to the terms of Section 9.1 or 9.2 . . . .29
The “Termination Date” is defined in the Agreement as March 31, 2016.30
Our colleagues in the majority conclude that “[t]he clause [in Section 9.3]
beginning ‘but in any event’ creates an exception for indemnity claims arising from
the seller’s representations and warranties discussed in Section 9.5.”31 The majority
reasons that this reading represents “[t]he only reasonable and convincing
interpretation of Section 9.3(a)”32 and the one “most consistent with the Agreement’s
other relevant provisions.”33 The majority does not, however, explain how its
interpretation can be derived from Section 9.3’s text, the appropriate starting point
for the interpretation of a contractual provision.34 And here, our reading of the
relevant text leads us to the opposite conclusion.
All agree that the proper interpretation of Section 9.3 as it relates to the
Plaintiffs’ indemnification claim turns on the meaning ascribed to the phrase “in any
event.” The question presented is: does this create a qualification applicable to all
indemnification claims (unless specifically excepted) or does it signal an exception
29
Id. at A297 (emphasis added).
30
Id. at A261. The majority observes that “Termination Date” appears in two sections of the
Agreement that address representations and warranties. This does not change the fact that the term
is defined without limitation to mean “March 31, 2016.” Id.31
Maj. Op. at 14–15.
32
Id.33
Id. at 15.
34
See, e.g., Exelon, 176 A.3d at 1267 (“Our objective is to determine the intent of the parties from
the language of the contract.”).
21
applicable only to representation-and-warranty claims? The Court of Chancery
appears to have acknowledged that contractual drafters typically use the phrase “in
any event” to introduce a limiting or qualifying clause.35 Yet the court, based almost
exclusively on what is found elsewhere in the Agreement, determined that “in any
event” creates an exception here.36 The majority agrees.
We, on the other hand, believe that the phrase “in any event,” standing on its
own, establishes a qualification applicable to all indemnification claims. Our
analysis begins with the phrase’s commonly understood meaning. We read “in any
event” to mean “no matter what happens”37 or “whatever the case may be.”38
35
NASDI Holdings, LLC v. North American Leasing LLC, 2019 WL 1515153, at *5 (Del. Ch. Apr.
8, 2019) (citing Kenneth A. Adams, A Manual of Style of Contract Drafting, §§ 13.541–46 (Am.
Bar. Ass’n 3d ed. 2013)).
36
NASDI Holdings, 2019 WL 1515153, at *5. To be sure, the Court of Chancery also noted that
“[i]n contractual drafting, ‘but’ typically introduces an exception.” NASDI Holdings, 2019 WL
1515153, at *6. Yet even if “but” can be read to signal an exception here, that exception would
operate “in any event.” Thus, our primary difference with the Court of Chancery relates to its
conclusion that “but” begins an exception that is limited to “the particular representation or
warranty to which the matter applies[.]” Id. at *5 (“That exception applies to indemnification
claims based on representations and warranties.”). In our view, this reading does not account for
the entire text of the operative clause. Nor does it allow for the use of “but” as a conjunction
introducing a statement contrary to, or expanding on, the statement that precedes it, e.g., “A must
wash the dishes, but he must also sweep the floor,” or, “A must wash the dishes tonight, but if B
is coming over, he must wash them this afternoon.” In the Agreement at issue here, “but” in
Section 9.3 operates expansively: notices of claim are due within a reasonable time, but they also
must be submitted before the later of the Termination Date or, if applicable, the Survival Period
established in Section 9.5.
37
In any case, at all events, in any event, The American Heritage Dictionary of Idioms: American
English Idiomatic Expressions & Phrases 223 (2d ed. 2013) (“in any case. Also, at all events; in
any event. No matter what happens; certainly; also, whatever the fact is, anyway.” (emphasis in
original)).
38
Id. at 17 (“at any rate, in any event, whatever the case may be; also, at least” (emphasis in
original)).
22
Considered as such, Section 9.3’s operative language is clear: notice of all
indemnification claims must be given within a reasonable time after the indemnitee
becomes aware of an indemnifiable claim, regardless of when that might occur. And
no matter when that happens—or, “in any event”—notice of all indemnification
claims, other than certain representation-and-warranty claims, must be given before
the Termination Date of March 31, 2016.
Not only is this reading consistent with the commonly accepted understanding
of the phrase “in any event,” it is also consistent with the words composing the
phrase. The drafters could have used the word “the” to establish a specific exception
to the operation of the Termination Date, but instead they selected the adjective
“any” to modify “event,” indicating that the clause “in any event” applies to a set of
events that is expansive—that is, “without distinction or limitation.”39 In our view,
the Court of Chancery and the majority have paid insufficient heed to this word
choice, prompting an unnecessary departure from the accepted meaning of this
arguably decisive phrase
Finally, we note that Section 9.3 establishes “Applicable Claim Period” as a
defined term meaning “the later of the Termination Date or the survival period
provided in Section 9.5 with respect to [the] particular representation or warranty to
39
Any, Oxford English Dictionary (3d ed. 2016, updated Mar. 2022) (“any” when used with a
singular noun in affirmative contexts “refer[s] to a member of a particular group or class without
distinction or limitation[.]”).
23
which the matter applies[.]”40 Importantly, the term “Applicable Claim Period” is
used later in Section 9.3 in the context of notice required for all indemnification
claims, not just representation-and-warranty claims.41 This, in our view, casts
further doubt on the majority’s interpretation.
III
Having first ascertained the ordinary meaning of the words used in Section
9.3, we turn next to the Plaintiffs’ contention—accepted by the Court of Chancery
and the majority—that, when Section 9.3 is read together with Sections 7.7, 9.2 and
9.5, it becomes clear that the parties intended to establish a time for noticing claims
coextensive with the survival periods applicable to the parties’ representations and
warranties. We agree that contracts should be read as a whole, but, in our view,
these provisions can be reconciled with more faithful adherence to the plain text of
Section 9.3 than what the majority’s construction achieves.42
Under Section 9.2(e), the Defendants must indemnify the Plaintiffs for losses
40
App. to Opening Br. at A297.
41
The final sentence of Section 9.3 provides that “[s]o long as such Notice of Claim is given on
or prior to the Applicable Claim Period, no delay on the part of an Indemnitee in giving the
Indemnitor a Notice of Claim shall limit or reduce the Indemnitee’s right to Indemnity hereunder,
nor relieve the Indemnitor from any of its obligations under this ARTICLE 9, unless (and then
only to the extent that) the Indemnitor is prejudiced thereby; provided, however, that a Notice of
Claim must be delivered with regard to any Company Breach no later than the date of termination
of the Applicable Claim Period and, if raised by such date, such claim shall survive such survival
period until final resolution thereof.” Id. at A298 (emphasis added).
42
See Council of Dorset Condo. Apartments v. Gordon, 801 A.2d 1, 7 (Del. 2002) (“A court must
interpret contractual provisions in a way that gives effect to every term of the instrument, and that,
if possible, reconciles all of the provisions of the instrument when read as a whole.”).
24
“arising out of, relating to or incurred in connection with” the bonds or letter of
credit. And, according to Section 7.7, the relevant bonding obligations remain in
effect until a Bond Covenant Termination Date, a date that had not yet been reached
as of the Plaintiffs’ notice of claim. Thus, as the majority accurately notes,
enforcement of the plain terms of Section 9.3 could, as we believe happened here,
result in the extinguishment of indemnification claims arising from the bonds and
letter of credit before the Bond Covenant Termination Date.
To adopt the Court of Chancery’s words, this construction might be seen as
“undermin[ing] the purpose of the indemnification provisions,” 43 but such a fear
overlooks the fact that indemnification is not the only remedy available under the
Agreement. Instead, Section 9.7’s preservation of equitable subrogation claims with
respect to the bonds and letter of credit after the Termination Date fills the apparent
void.44 Thus, under our construction, the Plaintiffs would not be left without a
remedy for bond losses incurred after the Termination Date. Indeed, NASDI
Holdings brought such a claim in this case to recover their letter-of-credit loss.45
43
NASDI Holdings, 2019 WL 1515153, at *5.
44
As discussed above, Section 9.7 stipulates that the indemnification rights set forth in Article 9
shall be the parties’ sole and exclusive remedies, but also states that, “[n]otwithstanding the
foregoing, nothing in this Agreement shall limit (i) any Person’s liability for such Person’s
common law fraud or (ii) any rights of subrogation the Parent or any Subsidiary of the Parent may
have under or with respect to any Company Surety Bonds, any Company Surety Bond Obligations,
the Parent Bond Guarantees, any Company LC Obligations or the Letter of Credit.” App. to
Opening Br. at A299–300.
45
Id. at A35 (“SECOND CAUSE OF ACTION[:] Equitable Subrogation”).
25
Finally, although our lodestar is the text and structure of the Agreement, our
construction also respects the apparent purpose of the contract at issue. More
particularly, it is not unreasonable to assume that the parties intended to impose
indemnification obligations for losses relating to the bonds and letter of credit
subject to a termination date approximately two years after the execution of the
Agreement, especially when the remedy of equitable subrogation was explicitly
carved out from any timing or notice limitations.
Other than to conclude that “[n]othing in Section 9.7 suggests that subrogation
was to be the Plaintiffs’ sole remedy for a claim based on a surety bond after the
Termination Date,”46 the majority does not address our construction of the
Agreement, which harmonizes the plain text of Section 9.3 with the related
provisions governing indemnification, bonding, and equitable subrogation.47
Instead, the majority sacrifices the plain meaning of Section 9.3 on the altar of the
“context of the provision and the contract as a whole” and concludes that it has found
“the only reasonable and convincing interpretation of Section 9.3[.]”48 We
46
Maj. Op. at 16 n.18.
47
The Defendants proffered this interpretation in the Court of Chancery and in this Court. App.
to Opening Br. at A486–487 (“The Purchase Agreement expressly considers and bars claims for
indemnification on the bond obligations made after March 31, 2016, but allows equitable claims
on those specific obligations.”); Opening Br. at 27 (“[T]he parties expressly allowed plaintiffs to
make claims of equitable subrogation for any bond losses incurred after the Termination Date. In
fact, the exception for claims of equitable subrogation is unnecessary if indemnification claims
could be made indefinitely.”).
48
Maj. Op. at 14–15.
26
respectfully disagree. For our part, we think that harmonizing the Agreement’s
remedial provisions, as we have endeavored to do here, yields a more reasonable
interpretation than simply disregarding the provisions deemed inconsistent with the
contract’s “context.” And, if we in the dissent have not established our reading as
the only acceptable one, we have at least identified a reasonable interpretation that
conflicts with the Court of Chancery’s and the majority’s. That being so, the relevant
provisions of the Agreement are ambiguous and the entry of summary judgment in
favor of the Plaintiffs was erroneous.49 Hence, we would remand for the
consideration of extrinsic evidence.
49
In re Shorenstein Hays-Nederlander Theatres LLC Appeals, 213 A.3d at 56–57 (“When a
contract’s plain meaning, in the context of the overall structure of the contract, is susceptible to
more than one reasonable interpretation, courts may consider extrinsic evidence to resolve the
ambiguity.” (internal quotation marks omitted)).
27