This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Innovations, Inc., et al.,
Filed May 23, 2006
Hennepin County District Court
File No. CT 05-003963
Jennifer M. Berquist, The Gurstel Law Firm, 401 North Third Street, Suite 590, Minneapolis, MN 55401 (for respondent)
Benjamin R. Skjold, Hellmuth & Johnson, PLLC, 10400 Viking Drive, Suite 500, Eden Prairie, MN 55344 (for appellants)
Considered and decided by Hudson, Presiding Judge, Worke, Judge, and Crippen, Judge.
Appellant Advanced Concrete
Innovations (Advanced), a concrete construction business, contracted with respondent
St. Paul Fire Marine Insurance Company (St. Paul Fire Marine) to provide
bonding for bridge construction in southern
Individual appellants, corporate officers of Advanced, were not individually mentioned in the body of the agreement but each signed two signature pages attached to the indemnity agreement. Both signature pages stated, “THIS PAGE IS ATTACHED TO, AND IS A PART OF, THE GENERAL AGREEMENT OF INDEMNITY OR RIDER DATED OCTOBER 1, 2003.” The Floods signed the first signature page, titled “Signature Page for Corporations,” in their capacities as President and Vice President of Advanced, listing the corporation’s address and tax number. They signed the second signature page, titled “Signature Page for Individuals,” without reference to the corporation, listing their individual addresses and social security numbers. The Floods’ signatures on the corporate signature pages were undated; their signatures on the individual signature pages were notarized on October 21, 2003.
Advanced incurred financial difficulties following the fraudulent conduct of a former employee, and claims were made on the bonds. After notifying Advanced and the Floods, St. Paul Fire Marine made payments of $1,406,000 under the bonds and demanded reimbursement under the indemnity agreement. Appellants refused to pay, and St. Paul Fire Marine filed suit for the amount paid on the bonds, plus interest and attorney fees.
Appellants filed a motion to dismiss the individual appellants from the case on the basis that the Floods never agreed personally to indemnify St. Paul Fire Marine as surety. St. Paul Fire Marine moved for summary judgment. The district court denied the motion to dismiss and granted summary judgment against appellants jointly and severally on the amount paid under the indemnity agreement, plus interest, costs, and disbursements.
D E C I S I O N
On appeal from summary judgment,
this court applies a de novo standard of review to determine whether any
genuine issues of material fact exist and whether the district court erred in
its application of the law. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (
rules governing the requisites, validity, and construction of contracts
apply to indemnity agreements. Am. Druggists’ Ins. Co. v. Shoppe, 448
N.W.2d 103, 104 (
Appellants do not dispute the liability
of Advanced on the indemnity agreement, but claim that the individual
Sureties often require that
“individuals involved in the principal’s business execute Indemnity Agreements
in which each individual agreed to jointly and severally indemnify the surety .
. . .” The Surety’s Indemnity Agreement: Law & Practice 53 (
A holding absolving the individual
appellants would render their separate signatures on the individual signature
page meaningless, an interpretation that this court is to avoid. See
Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 526 (
The Floods have cited no legal authority for their argument that separate consideration is required to bind them under the agreement as individual guarantors, apart from their signatures in that capacity. And there is no merit in their contention that their signatures on October 21 did not provide consideration for their execution of the agreement dated October 1. The plain language of the October 1 agreement, stating that the signatures of all indemnitors are “required,” demonstrates the parties’ intent not to be bound on the indemnity agreement until the signatures of all indemnitors, including the Floods as individuals, were obtained. See, e.g., Dataserv Equip., Inc. v. Tech. Fin. Leasing Corp., 364 N.W.2d 838, 841 (Minn. App. 1985) (determining that when parties know that execution of written contract is condition precedent to their being bound, no binding contract exists until written contract is executed), review denied (Minn. May 31, 1985).
The district court did not err in ordering summary judgment for respondent, and we affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.