WESTCHESTER FIRE INSURANCE COMPANY v. MOYES Docket

8/3/2019 WESTCHESTER FIRE INSURANCE COMPANY v. MOYES Docket

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Case 1:08-cv-10726-FM Document 1 Filed 12/10/08 Page 3 of 11

be prima facie evidence of the fact and amount ofINDEM NITOR 'S l iabil ity to the SURE TY under this Ag reeme nt.Any dem and upon the SUR ETY by the Obligee shall be sufficientto conclude that a liability exists and the INDEMNITOR shall thenplace the SU RETY w ith sufficient funds in a form and amountdeem ed acceptable in the S URET Y'S sole discretion, as collateral

secu rity to cover the liability.

A cop y of the Agreem ent o f Indemnity is annexed hereto as Exhibit A.

7. Following execution of the Agreem ent of Indemnity by Defendant,

Westchester executed release of mechanics lien bonds as surety for Palm Beach in the

aggregate am ount of $6,382,389 to secure claims by subcontractors who had fi led

mechanics liens against a condominium apartment building in Las Vegas owned by that

Palm Beach.

AS AND FOR A FIRST CAUSE OF ACTION AGA INST

THE DEFENDANT FOR DEPOSIT OF COLLATERAL

8. Plaintiff W estche ster Fire repeats and realleges the allegations contained

in paragraphs " 1 " through "7" hereof.

9. Subseq uently PGAL, LLC and Hardy Com panies, Inc. comm enced actions

in Clark County District Court in the State of Nevada against, among others, Palm

Beach and Westche ster Fire to foreclose on bonds We stchester Fire had executed as

surety for Palm Beac h.

10. By letter dated November 14, 2008, Westchester Fire further demanded

that the Defendant provide collateral in the amount of $6,382,389 pursuant to the terms

of the Agreement of Indem nity.

11 . Despite said dem and, the D efendant has failed provide Westchester Fire

with collateral.



Case i:08-cv-10726-FM Document 1 Filed 12/10/08 Page 4 of 11

12. Under the Agreement of Indemnity, Defendant is obligated to immediately

provide W estchester w ith the collateral it has demanded pursuant to the Agreement of

Indemnity.

13. By reason of the foregoing, Plaintiff demands that Defendant pay collateral

and deposit the sum of $6,382,389 plus any future loss, costs, fees or expenses

incurred plus interest and attorneys fees with Plaintiff.

AS AND FOR A SECOND CAUSE OF ACTION AGAINSTTHE DEFENDANT FOR DECLARATORY JUDGMENT OF INDEMNIFICATION

14. Plaintiff Westch ester Fire repeats and realleges the a llegations set forth in

paragraphs " 1 " through "13" hereof.

15. We stchester may be required to pay the obligees under the bonds it has

executed as surety for Palm Beach and to defend the actions brought by those

obligees.

16. Under the Agreement of Indemnity Defendant is obligated to indemnify

Westchester for all losses, expenses or other payments it may be required to incur or

make by reason of having executed the bonds.

17. Westchester Fire is entitled to a declaratory judgment that Defendant has

the foregoing obligations.

AS AND FOR A THIRD CAUSE OF ACTION AGAINST

THE DEFENDANT FOR A PRELIMINARY INJUNCTION

18. Plaintiff Wes tches ter Fire repeats and realleges the allegations set forth in


19. The Agreement of Indemnity requires the Defendant to post collateral with

the Plaintiff promp tly upon the request of the Plaintiff.



Case 1:08-cv-10726-FM Document 1 Filed 12/10/08 Page 5 of 1*1

20. Westchester Fire's right to collateral from Defendant was specifically

bargained for and agreed to by D efendant.

21. Westchester Fire has no adequate remedy at law and will be irreparably

harmed if the Defend ant fails to pay collateral in the sum of $6,382,389 to Plaintiff.

22. Westchester Fire has a strong likelihood of success on the merits in this

action.

23. The issuance of a preliminary injunction will not create an undue hardship

for the Defendant as the preliminary injunction will require the Defendant only to do

what Defendant contracted to do in the Agreeme nt of Indemnity.

24. Westchester Fire will suffer undue hardship if a preliminary injunction is

not granted as Westchester Fire would then be required to use its own funds to defend

and pay any claims despite the promise of the Defendant to post collateral upon the

request of Plaintiff.

25. For the aforementioned reasons, Westchester Fire respectfully requests

that the Court issue a preliminary injunction requiring (1) Defendant to immediately post

collateral in the sum of $6,382,389 and (2) until the collateral is posted, enjoining and

restraining Defendant from selling, transferring, disposing or encumbering Defendant's

assets and property and granting Westche ster Fire a l ien upon all the assets and

property owned by the D efendant and in which the Defendant has an interest.



Case 1:08-cv-10726-FM Document 1 Filed 12/10/08 Page6of1'1

AS AND FOR A FOURTH CAUSE OF ACTION AGAINST THE DEFENDANTFOR COSTS, EXPENSES AND ATTORNEY'S FEES

26. Plaintiff Wes tchester Fire repeats and realleges the allegations set forth in


27. The Agreement of Indemnity requires that Defendant indemnify

Westchester Fire for all losses and/or expenses of whatsoever kind or nature, including

interest, court costs and attorney's fees that Westchester may incur by reason of having

executed the bonds.

28 . Defendant is obligated to pay Westchester Fire the attorney's fees and

expenses it has incurred in connection with this action.

W HE RE FO RE , Plaintiff We stchester Fire Insurance Com pany respectfully

requests judgm ent as follows:

a. On the First Cause of Action against Defendant Jerry Moyes for the

deposit of the sum of $6,382,389.00 plus any future loss, costs, fees or

expenses incurred plus interest and attorney's fees;

b. On the Second Cause of Action a declaration that Defendant is

required to inde mn ify plaintiff for all losses, expe nses or other paym ents that it

may incur or be required to make by reason of having executed the bonds;

c. On the Third Cause of Action issuing a preliminary injunction

requiring (1) Defendant to immediately post collateral in the sum of $6,382,389

and (2) until the collateral is posted, enjoining and restraining Defendant from

selling, transferring, disposing or encumbering Defendant's assets and property

and granting Westchester Fire a lien upon all the assets and property owned by

the D efendant and in which the D efendant has an interest;

WESTCHESTER FIRE INSURANCE COMPANY v. MOYES Docket

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