The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THE GRAY INSURANCE
COMPANY,
Plaintiff,
v. Case No. 8:23-cv-271-WFJ-AAS
WRP CONSTRUCTION, INC. and
WILSON R. PESANTEZ
Defendant.
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ORDER
Before the Court is The Gray Insurance Company’s (“Plaintiff”) Amended
Motion for Default Judgment against WRP Construction, Inc. (“WRP”) and Wilson
R. Pesantez (“Mr. Pesantez”) (collectively “Defendants”). Dkt. 16. Upon careful
consideration, the Court grants Plaintiff’s Motion.
BACKGROUND
Plaintiff is a surety company that issues performance and payment bonds on
construction projects. Dkt. 1 at 2. At all pertinent times, WRP was a contractor that
required such bonds for its construction work. Id. And, at all pertinent times, Mr.
Pesantez was the president of WRP. Dkt. 18 at 9.
On April 10, 2019, Plaintiff and Defendants entered into a general indemnity
agreement (the “Indemnity Agreement”). Id. Thereunder, Defendants were obligated
to exonerate, indemnify, and hold harmless Plaintiff from all liability incurred in
connection with any future performance and payment bond issued by Plaintiff to
Defendants naming WRP as principal. Id. at 2–9. In addition, Defendants were
obligated to deposit collateral on the demand of Plaintiff “as soon as” Plaintiff
determined that liability may exist in connection with such a bond. Id. at 5.
On May 1, 2019, in consideration for Defendants’ promise to comply with the
terms of the Indemnity Agreement, Plaintiff issued a $500,000 performance and
payment bond (“the Bond”) naming WRP as principal and Capstone CG, LLC
(“Capstone”) as obligee. Dkt. 16 at 5; Dkt. 1-2 at 6. The Bond was made in relation
to a subcontract between WRP and Capstone (the “Subcontract”) for framing work
on an apartment construction project referred to by the Bond as “P.O. No. 17002-
010 Bergamot on 780” (the “Project”). Id.
At some point during the Project, disputes materialized between WRP and
Capstone. Dkt. 1 at 5. Capstone claimed that WRP failed to honor its obligations
under the Subcontract and that WRP’s failures caused Capstone damages. Id.
Capstone consequently sued WRP in the Twelfth Judicial Circuit in and for Sarasota
County, Florida (the “Capstone Litigation”) and made a demand against Plaintiff
under the Bond. Id. at 5–6.
Plaintiff incurred a number of fees and expenses as a result. First, Plaintiff
was forced to spend money defending itself in the Capstone Litigation and
performing an investigation concerning Capstone’s demand. Id. at 6. Second,
Plaintiff was forced to fund WRP’s defense to avoid default after WRP ceased
funding its own defense. Id. Finally, Plaintiff paid Capstone a $75,000 settlement to
avoid further liability under the Bond. Id.; Dkt. 16-5 at 3.
On August 24, 2022, during the pendency of the Capstone Litigation, Plaintiff
sent a demand letter to Defendants seeking collateral. Id. Defendants nevertheless
refused or failed to provide the collateral demanded. Id. To this date, Defendants
have not reimbursed or otherwise indemnified Plaintiff for any liability Plaintiff
incurred as a result of Plaintiff issuing Defendants the Bond. Id. at 6–7.
On February 8, 2023, Plaintiff brought its Complaint against Defendants
alleging one count—breach of the Indemnity Agreement. Dkt. 1 at 7. After failing
to respond or answer post-service, Defendants were defaulted. Dkt. 12; Dkt. 13.
Plaintiff now moves for an entry of final judgment against Defendants. Dkt. 16.
LEGAL STANDARD
“The effect of the entry of a default is that all of the factual allegations in the
[c]omplaint are taken as true, save for the amount of unspecified damages.” Whole
Space Indus., Ltd. v. Gulfcoast Int'l Prod., Inc., No. 209-CV-217-UA-SPC, 2009
WL 2151309, at *3 (M.D. Fla. July 13, 2009) (citation omitted). Accordingly, “if
liability is well-pled in the complaint, it is established by the entry of a default.” Id.
“Although a defaulted defendant admits well-pleaded allegations of liability,
allegations relating to the amount of damages are not admitted by virtue of
default[.]” Id. Instead, “the Court determines the amount and character of damages
to be awarded.” Id. Damages may be awarded without an evidentiary hearing if the
amount is a liquidated sum or capable of mathematical calculation. See Fed. R. Civ.
P 55(b)(1); SEC v. Smyth, 420 F.3d 1225, 1231 (11th Cir. 2005) (collecting cases).
DISCUSSION
The factual allegations in Plaintiff’s Complaint and related attachments are
more than sufficient to establish breach of contract. Breach of contract requires: (1)
the existence of a valid contract; (2) a breach of that contract; (3) causation; and (4)
damages. Carpenter Contractors of Am., Inc. v. Fastener Corp. of Am., 611 So. 2d
564, 565 (Fla. 4th DCA 1992). Here, Plaintiff has properly alleged that there is a
valid Indemnity Agreement, that Defendants breached the Indemnity Agreement by
failing to indemnify Plaintiff in any way, and that Defendants’ breach caused
Plaintiff damages. Dkt. 1 at 7–8. It follows that Defendants are jointly and severally
liable to Plaintiff for breach of the Indemnity Agreement.
This brings the Court to damages. Plaintiff alleges that Defendants’ breach
caused a total loss of $128,014.79. Dkt. 16 at 9. This sum represents Plaintiff’s
$75,000 settlement payment to Capstone under the Bond plus $84,756.12 in
attorneys’ fees minus $31,741.33 in recovery.1 Id. at 9–10. Upon a close inspection
of Plaintiff’s proffered affidavits and attachments containing the settlement check to
Capstone (Dkt. 16-5), a mediation invoice (Dkt. 16-6), a detailed attorneys’ fees and
costs invoice for the Capstone Litigation (Dkt. 16-7), checks for attorneys’ fees and
costs (Dkt. 16-8), as well as a second detailed attorneys’ fees and costs invoice (Dkt.
16-10), the Court finds that $128,014.79 represents an appropriate damages figure.
Further, because this sum is discernable through basic mathematical calculation, no
evidentiary hearing is necessary.
Under the Indemnity Agreement, Plaintiff is also entitled to “interest . . . at
the maximum rate permitted by the law” for payments made by Plaintiff in relation
to liability incurred under the Bond. Dkt. 18 at 4. The maximum rate of pre-judgment
interest permitted by Florida law is 18%. Fla. Stat. § 687.02. Plaintiff is therefore
entitled to pre-judgment interest at the rate of 18% per annum on the settlement
payment to Capstone from December 16, 2022 (the day the settlement check was
sent to Capstone) to the date of entry of this Judgment. Plaintiff is entitled to the
same interest on its $53,014.79 in attorneys’ fees and costs from February 8, 2023
(the date Plaintiff filed its Complaint) to the date of entry of this Judgment. Finally,
1 As Plaintiff notes, “the Indemnity Agreement is unequivocal and specific in setting forth the
[Defendants’] obligations to indemnify and keep [Plaintiff] indemnified ‘from and against any
and all Loss,’ which includes attorneys’ fees and consultants’ fees, as a result of executing the
Bond or because of the [Defendants’] failure to comply with the Indemnity Agreement.” Dkt. 16
at 7; see Dkt. 18 at 3–4.
Plaintiff is entitled to post-judgment interest “at a rate equal to the weekly average
1-year constant maturity Treasury yield, as published by the Board of Governors of
the Federal Reserve System, for the calendar week preceding [the date of this
Judgment]” from the date of entry of this Judgment until it is paid in full. 28 U.S.C.
§ 1961(a)–(b).
According, it is hereby ORDERED and ADJUDGED:
(1) Plaintiff’s Amended Motion for Default Judgment (Dkt. 16) is
GRANTED.
(2) The Clerk is directed to enter a final default judgment in favor of Plaintiff
against Defendants as follows:
(a) Plaintiff is awarded $128,014.79 in base damages.
(b) Plaintiff is awarded pre-judgment interest at the rate of 18% per annum
on $75,000 of its damages from December 16, 2022, to the date of entry
of this Judgment.
(c) Plaintiff is awarded pre-judgment interest at the rate of 18% per annum
on $53,014.79 of its damages from February 8, 2023, to the date of
entry of this Judgment.
(d) Plaintiff is awarded post-judgment interest on items (a), (b), and (c), at
the federal post-judgment interest rate specified above from the date of
this Judgment until the sum is paid in full.
(e) Defendants are jointly and severally liable for all damages owed to
Plaintiff.
(3) The Clerk is directed to close this case.
DONE AND ORDERED at Tampa, Florida, on April 17, 2023.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record