SEPTEMBER 2017 BAD FAITH CASES: MERE DISAGREEMENT OVER CONTRACT INTERPRETATION DOES NOT AMOUNT TO BAD FAITH IN SUIT AGAINST SURETY (New Jersey Federal)

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Between 2010 and 2016, the insurer issued various performance and payment surety bonds on behalf of ongoing construction projects. In connection with these bonds, the insurer also entered into General Indemnity Agreements (“GIA”) with the plaintiffs.

After execution of one of the GIAs, the insurer began receiving claims against the performance bonds. By November of 2016, insurer made payments totaling $8,424,302.57 toward resolving those claims. However, the insurer estimated that its potential liability for the claims could exceed $18 million.

Under the GIA, the insurer interpreted the plaintiffs as indemnitors and principals of the bonds. As such, the insurer wrote to the plaintiffs on two separate occasions, and demanded that the plaintiffs post cash collateral in the amount of $18,807,737.47 to cover the full amount of the claims. Plaintiffs then filed suit against the insurer and alleged breach of the implied covenant of good faith and fair dealing, and violations of various state consumer fraud statutes, among other claims. The insurer moved to dismiss.

In dismissing the breach of the implied covenant of good faith and fair dealing claim, the Court ruled that “[p]laintiffs’ allegations . . . do little more than indicate a disagreement over contractual interpretation, and fail to provide with any specificity how [the insurer] acted in bad faith.” The Court further held that such conclusory and vague pleading failed to comport with Federal Rule of Civil Procedure 8(a)(2), which requires a short and plain statement showing that the pleader is entitled to relief. Citing the same reasoning relating to the inadequacy of the plaintiffs’ pleading, the Court also dismissed the plaintiff’s state fraud claims against the insurer.

Date of Decision: September 13, 2017

Greenskies Renewable Energy, LLC v. Arch Insurance Co., No. 16-5243-SDW-LDW, 2017 U.S. Dist. LEXIS 148185 (D. N.J. Sept. 13, 2017) (Wigenton, J.)

 

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