US Foods, Inc. v. White Oak Manor - Charlotte, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:19-cv-00227-RJC-DCK

US FOODS, INC., )

)

Plaintiff, )

)

v. )

) ORDER

WHITE OAK MANOR – CHARLOTTE, )

INC., and WHITE OAK MANAGEMENT, )

INC., )

)

Defendants. )

THIS MATTER comes before the Court on Plaintiff’s Motion for Summary

Judgment, (Doc. No. 33), Plaintiff’s accompanying memoranda and declarations in

support, (Doc. Nos. 34–37), Defendants’ Memorandum in Opposition, (Doc. No. 43),

and Plaintiff’s Reply, (Doc. No. 46). The motion has been fully briefed, and argued

and is ripe for adjudication.

I. BACKGROUND

a. Factual History

Plaintiff US Foods, Inc. (“US Foods”) is a national food distributor servicing

numerous industries. (Doc. No. 34 at 1). Defendants White Oak Manor-Charlotte,

Inc. and White Oak Management, Inc. (collectively “White Oak”) manage several

retirement communities including one in Charlotte, North Carolina at which the

underlying incident in this case occurred. (Doc. No. 43 at 1). Prior to the incident

at issue in this lawsuit, the parties had established a business relationship under

which US Food provided food supply services to its customer White Oak.

Then, on May 28, 2014, a power outage occurred at White Oak’s Charlotte

location. (Doc. No. 43-1 at 1–2). This outage necessitated Defendants’ acquisition of

a temporary refrigerated trailer to preserve Defendants’ food supply for its

residents. (Id.). White Oak’s Food Service Manager, Tracy Perraeult, contacted US

Foods to request the temporary use of a refrigerated trailer. (Id. at 2).

At approximately 2:00 p.m. that same day, US Foods delivered the

refrigerated trailer to White Oak. (Id. at 2). The trailer came with an after-market

removable ramp that US Food’s driver set up. (Doc. No. 35-2 at 2–4, Doc. No. 43-1 at

2, Bostic Dep. 42:18-23). Perrault inspected the refrigerated trailer for cleanliness

and then signed the Use of Equipment Agreement (the “Agreement”) that governed

the terms of the rental. (Doc. No. 43-1 at 2).

The Agreement did not specify a rental price for the trailer. However, it did

state that US Foods “makes no representation as to the condition of the Equipment

and in no event shall USF [US Foods] be liable for any damage incurred . . . as a

result of the failure of the Equipment to operate properly or otherwise in accordance

with Customer’s expectations.” (Doc. No. 1-2 at 2). The Agreement also included an

indemnification clause, which read as follows:

Customer hereby agrees at all times to indemnify, defend, and hold

USF, its affiliates, directors, officers, shareholders and employees,

harmless from and against any and all costs, damages, awards, causes

of action, losses and fees, including but not limited to, reasonable

attorneys’ fees, arising out of or in connection with any violation of this

Agreement by Customer or its agents or employees, any property

damage, product liability, bodily injury or death incurred as a result of

Customer’s acts, omissions, possession or use of the Equipment. The

indemnification obligation under this Section shall not be limited by a

limitation on amount or type of damages, compensation, or benefits

payable by or for Customer under worker’s or workmen’s compensation

acts, disability benefit acts, or other employee benefit acts. In no event

shall USF be liable for any injury or death incurred by any employee,

agent or representative of Customer in connection with the acts,

omissions, possession or use of the Equipment by Customer. The

foregoing indemnification shall survive the expiration or early

termination of this Agreement.

(Doc. No. 1-2).

The day after the delivery, Reginald Bostic (“Bostic”) – a White Oak employee

– was injured while using the equipment in question. (Doc. No. 43-2 at 84–86).

Bostic alleged that, as he exited the trailer with food supplies, the ramp collapsed

without warning, causing him to fall and sustain injuries. (Id.). On May 12, 2016,

Bostic filed suit against US Foods in the Superior Court Division, Mecklenburg

County, Case Number 16-CVS-8194, for the alleged injuries he suffered while using

the trailer. (Doc. No. 43-3). The case was later removed to Western District of

North Carolina Federal Court as Civil Action No. 3:16-cv-00714.

During the litigation, US Foods sent two letters to White Oak requesting

indemnification and defense for Bostic’s lawsuit pursuant to Section 6 of the

Agreement between White Oak and US Foods. (Doc. No. 36-1 at 2–3, 9–10). White

Oak did not indemnify US Foods or help US Foods defend against the Bostic

lawsuit. Additionally, White Oak did not participate in the mediation proceedings

of the Bostic case, stating that it had no duty to indemnify or defend US Foods

under these circumstances. (Doc. No. 36-2 at 4). US Foods ultimately reached a

settlement with Bostic that included a payment of $490,000. (Doc. No. 36-3 at 2;

Doc. No. 37-1 at 2). In its defense of the Bostic suit, US Foods incurred legal fees

and costs of $379,816.08. (Ahrens Dec. at Exs. 4–8, Kupferschmid Dec. at Exs. 2–6).

Bostic also filed a workers’ compensation claim against White Oak regarding

the May 29, 2014 accident. (Doc. No. 43 at 4). The claim was settled on December

20, 2017, and White Oak paid $295,876.70 in total benefits to Bostic. (Doc. No. 43-4

at 6).

b. Procedural History

Plaintiff US Foods filed a Complaint in this Court for Contractual Indemnity

against White Oak on May 10, 2019, seeking damages in the amount US Foods paid

to Bostic, reasonable attorneys’ fees incurred by the Bostic lawsuit, reasonable

attorneys’ fees attributed to this action, and pre-judgment and post-judgment

interest. (Doc. No. 1). Defendants filed a Reply on June 20, 2019, which also contained

Counterclaims for negligence, breach of contract, breach of express and implied

warranties, and equitable indemnification. (Doc. No. 10).

Following discovery, Plaintiff filed a motion for summary judgment on March

29, 2021. (Doc. No. 33). The motion seeks summary judgment on Plaintiff’s claim as

well as on all four of Defendants’ counterclaims. Defendants filed a Response on May

24, 2021, after which Plaintiff filed a Reply on June 3, 2021. (Docs. Nos. 46, 48).

II. MOTIONS FOR SUMMARY JUDGMENT

Plaintiff moves for summary judgment on its claim and on all counterclaims.

A. Standard of Review

Summary judgment shall be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is genuine “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material only if

it might affect the outcome of the suit under governing law. Id. The movant has the

“initial responsibility of informing the district court of the basis for its motion, and

identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986) (quotation marks omitted). This “burden on the moving

party may be discharged by ‘showing’—that is, pointing out to the district court—that

there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.

Once this initial burden is met, the burden shifts to the nonmoving party who

“must set forth specific facts showing that there is a genuine issue for trial.”

Anderson, 477 U.S. at 250. The nonmoving party may not rely upon mere allegations

or denials of allegations in the pleadings to defeat a motion for summary judgment;

rather, it must present sufficient evidence from which “a reasonable jury could return

a verdict for the nonmoving party.” Id. at 248; accord Sylvia Dev. Corp. v. Calvert

Cty., 48 F.3d 810, 818 (4th Cir. 1995).

When ruling on a summary judgment motion, a court must view the evidence

and any inferences therefrom in the light most favorable to the nonmoving party.

Anderson, 477 U.S. at 255. “Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no genuine issue for

trial.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009). The mere argued existence of a

factual dispute does not defeat an otherwise properly supported motion. Anderson,

477 U.S. at 248–49. “If the evidence is merely colorable or is not significantly

probative,” summary judgment is appropriate. Id. at 249–50 (citations omitted).

B. Plaintiff’s Claim: Contractual Indemnity

Plaintiff claims that the terms of the Agreement are clear and require

Defendants to indemnify Plaintiff for losses incurred pursuant to Defendant’s use of

the equipment. “[W]hen the terms of a contract are plain and unambiguous, there is

no room for construction.” State v. Philip Morris USA Inc., 363 N.C. 623, 685 S.E.2d

85, 91 (N.C. 2009) (quotation marks omitted). “A contract that is plain and

unambiguous on its face will be interpreted by the court as a matter of law,” Schenkel

& Schultz, Inc. v. Hermon F. Fox & Assocs., P.C., 362 N.C. 269, 658 S.E.2d 918, 921

(N.C. 2008), and “the court cannot look beyond the terms of the contract to determine

the intentions of the parties.” Lynn v. Lynn, 202 N.C.App. 423, 689 S.E.2d 198, 205

(N.C. Ct. App. 2010). “When an agreement is ambiguous and the intention of the

parties is unclear, however, interpretation of the contract is for the jury.” Schenkel,

658 S.E.2d at 921, 362 N.C. 269. “A contract term is ambiguous only when, in the

opinion of the court, the language of the contract is fairly and reasonably susceptible

to either of the constructions for which the parties contend.” Philip Morris USA Inc.,

363 N.C. at 641 (brackets and quotation marks omitted).

The North Carolina Supreme Court “has expressly recognized the right of a

party to contractually provide for indemnification against its own negligence.” CSX

Transp., Inc. v. City of Fayetteville, 247 N.C. App. 517, 523, 785 S.E.2d 760, 763–64

(2016). However, “[c]ontracts exempting persons from liability for negligence are not

favored by the law and are strictly construed against the party claiming such

exemption.” Jordan v. Eastern Transit & Storage Co., 266 N.C. 156, 161, 146 S.E.2d

43, 48 (1966); see also City of Wilmington v. N. Carolina Nat. Gas Corp., 117 N.C.

App. 244, 245-248 (1994) (finding an indemnity clause that indemnified plaintiff for

“any and all damage or injury of any kind or nature whatever… resulting from… the

design, construction, installation, maintenance, or operation… by the [defendant]”

did not explicitly insulate the plaintiff from its own negligence). A clause will not be

construed as exculpatory “in the absence of explicit language clearly indicating that

such was the intent of the parties.” Hill v. Carolina Freight Carriers Corp., 235 N.C.

705, 710, 71 S.E.2d 133, 137 (1952).

Plaintiff argues that the indemnification clause in the Agreement requires

Defendants to indemnify Plaintiff for the Bostic lawsuit because the clause covers

any “bodily injury” caused by Defendants’ “acts, omissions, possession or use of the

Equipment.” (Doc. No. 34 at 8). Plaintiff states that Bostic’s injuries occurred during

Defendant’s possession and use of the trailer and therefore fall under the purview of

the indemnification clause. (Id. at 9). Plaintiff argues that the clause is an

exculpatory indemnification clause that protects Plaintiff even in the event of injury

based on Plaintiff’s own negligence.

Defendants reply that the clause only requires Defendants to indemnify

Plaintiff for negligence that is attributable to Defendants, because the language must

be construed against the Plaintiff and is not sufficiently explicit to indemnify Plaintiff

from its own negligence. (Doc. No. 43 at 7). Because the clause refers to ‘Customer’s

acts,” Defendants argue that the language is qualified and does not clearly cover

injury based on Plaintiff’s own negligence. Defendants also argue that the Agreement

is a construction agreement under N.C. Gen. Stat. Ann. § 22B-1, and that under this

law agreements that require a promisor to indemnify a promisee from the promisee’s

own negligence are unenforceable as being against public policy. (Id. at 7–10).

Defendants’ argument that the Agreement violates public policy under N.C.

Gen. Stat. Ann. § 22B-1 is unpersuasive. The statute does not apply to the facts in

this case, and Defendants’ reliance on Miller Brewing Co. v. Morgan Mech.

Contractors, Inc., 90 N.C. App. 310, 368 S.E.2d 438 (1988) is unavailing. In that case,

while the Court did indeed broadly interpret the statute’s applicability, the

underlying facts involved a bid-upon engineering project assembling and installing a

forty-foot conveyor system. Id. at *312, *439. Such an act much more neatly fit the

“construction” and “alteration” required to fall within § 22B-1 than does the delivery

of a refrigerated trailer, even given the simple affixation of an accompanying ramp.

It would stretch the plain meaning of language too much to apply the facts of this

case, which is more tantamount to emergency temporary equipment rental, to a

statute regulating construction agreements.

Turning to the language of the indemnification clause itself, the contract’s

language is clear and unambiguous. The clause in question requires Defendants to:

indemnify, defend, and hold [Plaintiff] . . . harmless from and against

any and all costs, damages, awards, causes of action, losses and fees . .

. arising out of or in connection with . . . bodily injury or death incurred

as a result of Customer’s acts, omissions, possession or use of the

Equipment. . . . In no event shall USF be liable for any injury or death

incurred by any employee, agent or representative of Customer in

connection with the acts, omissions, possession or use of the

Equipment by Customer.

(Doc. No. 1-2). The language that Plaintiff will be indemnified for “any and all”

damages incurred as a result of Defendants’ “possession or use of the Equipment,”

and that in “no event” shall Plaintiff “be liable for any injury . . . incurred by any

employee” of Defendants in connection with the “use of the Equipment” leaves no

room for ambiguity. Bostic’s injury undoubtedly occurred “in connection with”

Defendants’ use of the equipment, as he was using the equipment while on the job

when he became injured by it, and the injury was also incurred “as a result of”

Defendants’ possession and use of the equipment, as the injury would not have

occurred but for Defendants’ possession and use of the refrigerated trailer. The

Agreement’s language on its face unambiguously covers the damages incurred here,

leaving “no room for construction.” Philip Morris, 363 N.C. at 685.

Plaintiff correctly argues that Courts will not read into indemnification

agreements provisions “which are neither expressly nor reasonably inferable from the

terms.” City of Wilmington v. N. Carolina Nat. Gas Corp., 117 N.C. App. 244, 248,

450 S.E.2d 573, 575 (1994). The language contained in this Agreement is clear,

sufficiently broad, and undoubtedly covers the facts raised by this case. See Malone

v. Barnette, 772 S.E.2d 256, 259–60 (2015); see also Cooper v. H. B. Owsley & Son,

Inc., 43 N.C. App. 261, 263, 258 S.E.2d 842, 844 (1979) (finding an indemnification

clause stating that lessor “shall not be liable… for any other loss arising from the use

of, transportation of, or in any way connected with the said equipment” covered the

lessor’s own negligence).

The indemnification clause covers Plaintiff’s own negligence under any

reasonable interpretation of the language, and there is no ambiguity in the language

of the Agreement to create a question of fact for the jury. Therefore the Court will

grant summary judgment in favor of the Plaintiff on its Contractual Indemnity claim,

and award Plaintiff the $490,000 incurred in the Bostic settlement plus interest.

Plaintiff also seeks recovery of the attorneys’ fees and costs spent in defense of the

Bostic lawsuit pursuant to the indemnification clause; the Court will discuss these

fees below.

C. Attorneys’ Fees

Plaintiff moves for the recovery of attorneys’ fees in connection with the Bostic

lawsuit.1 Generally, North Carolina law requires statutory authorization for the

recovery of attorneys’ fees. Stillwell Enterprises, Inc. v. Interstate Equip. Co., 300

N.C. 286, 289 (1980) (“[A] successful litigant may not recover attorneys' fees, whether

as costs or as an item of damages, unless such a recovery is expressly authorized by

1 Despite arguing in its later briefing that it is also entitled to direct attorneys’ fees

related to the current action, (Doc. No. 46 at 11), US Foods agrees that it has not yet

moved for such fees. (Doc. No. 34 at 10 n.6). Therefore this Court will not address

that issue here.

statute.”). N.C. Gen. Stat. § 6-21 states that, if there is “evidence of indebtedness,”

parties can recover up to 15% of attorneys’ fees. North Carolina courts have not

clearly determined whether ancillary attorneys’ fees must be expressly authorized by

statute. See GR&S Atl. Beach, LLC v. Hull, No. 11 CVS 5883, 2012 WL 4850195, at

*15 (N.C. Super. Oct. 10, 2012), on reconsideration sub nom. GR & S Atl. Beach, LLC

v. Hull, No. 11 CVS 5883, 2013 WL 3946127 (N.C. Super. July 26, 2013) (stating that

whether ancillary fees are recoverable absent statutory authority “is not squarely

resolved by precedent”). Federal courts interpreting North Carolina law have also

come to conflicting interpretations on this question. See Sara Lee Corp. v. Quality

Mfg., 201 F. Supp. 2d 608, 614 (M.D.N.C. 2002), aff'd sub nom. Sara Lee Corp. v.

Quality Mfg., Inc., 61 F. App'x 836 (4th Cir. 2003) (holding that “the weight of the

case law clearly supports [the] position that statutory authority is absolutely required

to recover attorney's fees”); cf. Norfolk S. Ry. Co. v. TIMEC Co., Inc., No. 1:08CV99,

2009 WL 3787621, at *5 (M.D.N.C. Nov. 9, 2009) (holding that Stillwell does not apply

to ancillary fees and that statutory authorization is not required).

1. Ancillary Attorneys’ Fees

Plaintiff argues that it is entitled to the recover the $342,340.26 in attorneys’

fees incurred during the Bostic litigation as ancillary fees that can be awarded

without statutory authorization. (Doc. No. 46 at 13). Plaintiff cites Hull and other

cases to argue that such ancillary fees should not be subject to the typical statutory

authorization requirements. (Id. at 13–14). Defendant replies that North Carolina

requires statutory authorization for any award of attorneys’ fees, and that Plaintiff

has not pointed to any such statutory authorization here. (Doc. No. 43 at 10–11).

Furthermore, Defendant argues that Plaintiff’s attorneys’ fees must be reasonable,

but that the amount Plaintiff is requesting appears unreasonable and is supported

only by redacted invoices, providing the Court no way to determine their

reasonability. (Id. at 11).

North Carolina law typically requires statutory authorization for the recovery

of attorneys’ fees. Stillwell, 300 N.C. at 289. However, some courts have recognized

a distinction between “direct” and “ancillary” fees and, after a lengthy analysis, have

found that the ancillary attorneys’ fees can be granted without statutory

authorization when previously contracted for by the parties. GR & S Atl. Beach, LLC

v. Hull, No. 11 CVS 5883, 2011 WL 4501912, at *6 (N.C. Super. Sept. 29, 2011) (“if

the Court were to issue a dispositive ruling, its present inclination is, subject to proof,

to allow recovery of Ancillary Fees without the need for statutory authority”); see also

Crescent Univ. City Venture, LLC v. AP Atl., Inc., No. 15 CVS 14745, 2019 NCBC

LEXIS 46, *104 (N.C. Super. Ct. Aug. 8, 2019) (describing the Hull court has holding

that “the public policy concerns behind requiring statutory authorization for the

recovery of direct fees were not necessarily applicable to indemnity agreements

allowing for the recovery of ancillary fees.”).

In Hull, Judge Gale squared the precedent in Queen City Coach, 229 N.C. 534,

50 S.E.2d 288 (1948), in which the Court denied the recovery of ancillary fees because

the indemnity agreement did not expressly authorize their recovery (thereby

implying that such fees would have been recoverable if the contract had allowed for

them despite no statutory authorization), with Stillwell, which stated that a statutory

basis is required for any attorneys’ fees recovery. The Court in Hull explained that

ancillary fees are treated differently in the law than direct fees, the latter of which

requires a statutory basis but the former of which do not. The Court finds Hull’s

reasoning persuasive.

Here, the Agreement’s indemnification clause explicitly covers “reasonable

attorneys’ fees” among the forms of losses and fees for which Defendant is required

to indemnify Plaintiff. Therefore, Plaintiff’s reasonable attorneys’ fees from the

Bostic action are recoverable as ancillary fees requiring no statutory authorization.

Hull, 2011 WL 4501912 at *6. The amount constituting “reasonable attorneys’ fees”

in that case, however, is yet to be determined and will be discussed below.

2. Calculating Attorneys’ Fees

While the Court has determined that Plaintiff is eligible for ancillary attorneys’

fees related to the Bostic lawsuit, the Court must determine the appropriate amount

of such fees to award. “[T]o determine if an award of counsel fees is reasonable, the

record must contain findings of fact as to the time and labor expended, the skill

required, the customary fee for like work, and the experience or ability of the attorney’

based on competent evidence.” Brookwood Unit Ownership Assn. v. Delon, 124

N.C.App. 446, 449–50, 477 S.E.2d 225, 227 (1996) (internal citations omitted).

Here, Plaintiff has submitted hundreds of pages of invoices for its legal fees

related to the Bostic lawsuit. However, these invoices almost all redact any

description of the work involved. (Doc. Nos. 36-4–36-8). Under such circumstances

the Court cannot determine the reasonability of the attorneys’ fees sought. Therefore,

the Court will reserve ruling on the amount of such attorneys’ fees to award, if any,

until the Plaintiff has provided sufficient evidence in support. The Court hereby

ORDERS Plaintiff to submit supplemental briefing and evidence under seal within

ten (10) days of this Order to serve as a basis for determination of the Bostic suit’s

attorneys’ fees’ reasonability. The Defendant will have one week to respond to

Plaintiff’s submission.

D. Defendants’ Counterclaims

Plaintiff argues that the Court should enter summary judgment in Plaintiff’s

favor on Defendants’ counterclaims. Although Plaintiff cites several arguments in

favor of this conclusion, the Court need only address one - that the Agreement

between the parties defeats each such counterclaim.

Plaintiff contends that the Agreement repeatedly states that US Foods shall

have no liability for any damages arising out of Defendants’ use or possession of the

equipment, and that these counterclaims violate that provision. (Doc. No. 34 at 14).

Plaintiff argues that Sections 4, 5, and 6 of the Agreement broadly and unequivocally

disclaim warranties about the refrigerated trailer, place responsibility on the

Defendant for the trailer’s operation, and preclude Defendants from asserting related

claims against Plaintiff. Although Defendants do not directly respond to this as a

separate argument, Defendants’ previous arguments against summary judgment on

Plaintiff’s case in chief can be imputed to this argument.

The plain terms of the Agreement preclude Defendants’ counterclaims here.

First, as previously found by the Court, the Agreement’s indemnity clause

unambiguously protects Plaintiff from negligence claims involving “any and all”

damages incurred as a result of Defendants’ “possession or use of the Equipment,”

and that in “no event” shall Plaintiff “be liable for any injury . . . incurred by any

employee” of Defendants in connection with the “use of the Equipment.” (Doc. No. 1-

2 at 3). Defendants’ negligence counterclaim exclusively involves Plaintiff’s delivery

and installation of the equipment in question, and damages that occurred in

connection with Bostic’s use of the equipment; therefore, for the same reason,

Defendant’s negligence counterclaim fails under the Agreement.

Second, the plain language of the Agreement also bars Defendants’

counterclaims for breach of contract, breach of express and implied warranty, and

equitable indemnification. Defendant’s breach of contract counterclaim states that

Plaintiff agreed to provide a “safe, fully functional, operation refrigerated trailer”

and that Plaintiff violated that agreement. (Doc. No. 10 at 12). However, the

Agreement includes no such promise, instead stating specifically that Plaintiff

“makes no representation as to the condition of the Equipment . . . .” (Doc. No. 1-2

at 2). This phrase also precludes Defendants’ express or implied warranties

counterclaim, as the phrase makes plain that there are no warranties promised. See

N.C. Gen. Stat. Ann. §25-2A-214(3)(a) (“unless the circumstances indicate

otherwise, all implied warranties are excluded by . . . other language that in

common understanding calls the lessee’s attention to the exclusion of warranties

and makes plain that there is no implied warranty). Finally, the Agreement also

bars Defendant’s equitable indemnification claim, because the Agreement already

contains an indemnity clause. Greene v. Charlotte Chem. Lab'ys, Inc. 254 N.C.

680, 691, 120 S.E.2d 82, 89 (1961) (“There can be no implied contract where there is

an express contract between the parties in reference to the same subject matter.”).

Defendants did not respond to Plaintiff’s argument on this point, presumably

because the clause’s existence certainly bars a counterclaim based on an equitable

version of the same.

The Agreement precludes all four of Defendants’ counterclaims. Therefore

there is no need to turn to Plaintiff’s additional arguments against the counterclaims,

including the economic loss doctrine, standing, and timeliness. The Agreement’s

prevention of all four counterclaims ends the inquiry.

III. CONCLUSION

IT IS THEREFORE ORDERED that:

1. Plaintiff US Foods’ Motion for Summary Judgment, (Doc. No. 33), is

GRANTED in part:

a. The Motion is GRANTED as to Defendants’ Counterclaims;

b. The Motion is GRANTED as to Plaintiff’s Contractual Indemnity

Claim;

i. Plaintiff shall recover $490,000 plus interest, plus

reasonable attorneys’ fees from the Bostic action;

ii. The Court will RESERVE RULING on the amount owed

to Plaintiff in reasonable attorneys’ fees from the Bostic

action; and

2. Plaintiff US Foods is ORDERED to provide supplemental briefing and

evidence under seal within ten (10) days of this Order to provide a basis

for determination of the reasonability of the attorneys’ fees sought.

Defendant shall have one week to respond follow Plaintiff's filing.

SO ORDERED.

July 2, 2021

Robert J. Conrad, Jr. ee,

United States District Judge “ee

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