Opinion

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GREAT MIDWEST INSURANCE

COMPANY,

Plaintiff, Civil Action No. 24-7986 (RK) JJTQ)

v. MEMORANDUM OPINION

SUMMIT SOLAR COMPANY, LLC &

YUN LIU,

Defendants.

KIRSCH, District Judge

THIS MATTER comes before the Court upon an unopposed motion for summary

judgment filed by Plaintiff Great Midwest Insurance Company (‘Plaintiff or “GMIC”). (“MSJ,”

ECE No. 32-1.) Plaintiff submitted a statement of material facts in support of its motion. (““SUMF,”

ECF No. 32-17.) The Court has considered the submissions and resolves the pending motion

without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.

For the reasons set forth below, Plaintiff's motion is GRANTED in part and DENIED in part.

I. BACKGROUND

Defendants Summit Solar Company, LLC (“Summit”) and Yun Liu (“Liu”) (collectively,

Defendants”) have failed to oppose Plaintiff's motion or file a response to Plaintiff's SUMF.

Accordingly, the following facts are taken from Plaintiffs SUMF and deemed “undisputed” for

the purpose of deciding the pending motion. Muhammad v. Sills Cummis & Gross P.C., 621 F.

App’x 96, 100 (3d Cir. 2015) (per curiam); see Fed. R. Civ. P. 56(e)(2); L. Civ. R. 56.1 (a).

Summit was a construction company engaged in the business of constructing solar energy

systems. (SUME { 1.) GMIC and Defendants entered into a “General Agreement of Indemnity”

under which GMIC would offer construction surety bonds on behalf of Summit and Defendants

would indemnify GMIC for any losses related to the issuance of the bonds. Ud. J 2-3; see also

“Indemnity Agreement,” ECF No. 32-3.) Specifically, the Indemnity Agreement provided the

following:

[Summit will] indemnify and hold harmless Surety [GMIC] from and against ANY

AND ALL LOSS WHATSOEVER, including but not limited to [any and] all

liability, loss, claims, demands, costs, damages, attorneys’ fees and expenses of

whatever kind or nature, together with interest thereon at the rate set forth in Section

3.7 hereof, which Surety may sustain or incur or for which the Surety becomes

liable or has reason to believe it may be, or may become liable by reason of or in

consequence of the execution and/or delivery by Surety of any Bond(s) on behalf

of any Indemnitor....

(SUMF ¥ 3 (quoting Indemnity Agreement § 3).) The Indemnity Agreement further provided that

4,2 Surety shall have the right to incur such expenses in handling a claim as it [shall

deem[] necessary, including but not limited to, expenses for investigative,

accounting, engineering and legal services; and

4.4. As to any claim or suit hereunder, an itemized statement of claims or losses

paid or liabilities incurred and/or expenses paid or incurred, declared to be true and

correct by an employee or agent of Surety, or the vouchers or other evidence of

disbursement by Surety, shall be prima facie evidence of the fact and extent of

liability hereunder of Principal and Indemnitors; and

4.5. Surety shall have the right to reimbursement of its expenses and attorneys’ fees,

whether provided by in-house or outside counsel, incurred hereunder, irrespective

of whether any Bond loss payment has been made by Surety. In any suit on this

Agreement, Surety may recover its further expenses and reasonable attorneys’ fees

incurred in such suit...

(Ud. 4 (quoting Indemnity Agreement 8§ 4.2, 4.4-4.5).)

In October 2021, non-parties Newark Solar Holdings, LLC (“Newark Solar’) and the

Newark Board of Education entered into an agreement pursuant to which Newark Solar would

provide solar electricity to Newark public schools. (/d. § 5.) Newark Solar then entered into

multiple agreements with Summit that required Summit to “design and construct” “solar arrays”

at several schools. (/d. 6—7.) Pursuant to the agreements, Summit was required to provide certain

payment and performance bonds to Newark Solar.' (id. § 8.) GMIC issued those bonds on behalf

of Summit. Ud. [J 9-10.)

In February 2023, Newark Solar terminated its agreements with Summit due to, among

other things, Summit’s failure to timely perform. Ud. J 11.) At the same time, Newark Solar

demanded that GMIC perform pursuant to the bonds. Ud. § 12.) GMIC investigated Newark

Solar’s claims and entered into a settlement agreement pursuant to which GMIC paid Newark

Solar $2,273,000.00. Ud. {J 13-15.)

In April 2023, a subcontractor of Summit, LB Electric, also initiated a claim under the

bonds, which was investigated by GMIC. Ud. J¥ 13, 16-17.) In July 2024, LB Electric filed suit

against Summit and GMIC in New Jersey state court (the “State Court Action”). Ud. § 18.) In

January 2026, LB Electric and GMIC entered into a “Conditional Settlement and Release

Agreement” pursuant to which GMIC will pay LB Electric $65,000, $165,000, or $400,000

depending on the state court’s ruling on the parties’ pending cross-motions for summary

judgment.? Ud. at JJ 19-22.)

In addition, GMIC incurred legal fees in connection with the bonds and enforcement of the

Indemnity Agreement of $114,425.50 and consulting and accounting fees in connection with its

investigation into the bond claims of $82,668.59. Ud. J§ 26-27.) Including the Newark Solar

' “<Plerformance’ bonds. . . guarantee that the insured will perform the construction contract and

‘payment’ bonds ... guarantee that the insured will pay its obligations to subcontractors and suppliers who

furnish labor or material for a construction contract.” Gen. Ins. Co. of Am. v. E. Consol. Utils., Inc., No, 94-

4388, 1995 WL 428685, at *1 (E.D. Pa. July 18, 1995).

* GMIC has not notified the Court since filing the instant motion how these cross-motions have resolved in

the State Court Action.

settlement agreement discussed above, GMIC incurred a total cost of $2,470,104.09.2 Ud. § 28.)

“Despite demand,” Defendants have not indemnified GMIC for these losses. (Ud. § 29.) GMIC will

also incur an additional loss of $65,000 to $400,000 in connection with the State Court Action and

its settlement agreement with LB Electric. Ud. 21, 31.) GMIC has also received an additional

invoice of $6,526.50 for legal fees related to the bond claims.* (Id. J 32.)

On July 24, 2024, GMIC filed its Complaint against Liu and Summit. (ECF No. 1.) The

Complaint contains, inter alia, a claim for contractual indemnification against Liu and Summit.

Ud. || 27-33.) The parties jointly proposed a schedule to brief dispositive motions, and the

schedule was approved by the Honorable Justin T. Quinn, U.S.M.J. (ECF Nos. 30-31.) Pursuant

to the approved schedule, GMIC served its motion for summary judgment upon Defendants on

April 10, 2026. (ECF Nos. 31, 32-18.) Defendants did not serve any papers in response or request

on extension of time to do so. (ECF No. 31-20 45.) GMIC filed its motion for summary judgment

on April 24, 2026, and there has still been no word from Defendants. (MSJ.) Accordingly, the

Court will decide the pending motion for summary judgment as unopposed.

I. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment 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). Put another way, “‘[s]ummary judgment is

designed... to assess whether a genuine issue of material fact exists and whether a trial is

necessary.” Orsatti v. N.J. State Police, 71 F.3d 480, 484 (Gd Cir. 1995). A dispute is “genuine” if

> GMIC claims a total cost of $2,470,104.90. (SUMF { 28.) This eighty-one-cent discrepancy, however,

seems to simply be a typographical error resulting from the reversal of the figures in the cents place.

GMIC does not seem to seek to recover this amount at this time. (See MSJ at 19 (only requesting the

above costs exclusive of this $6,526.50).)

the evidence permits a reasonable jury to return a verdict in favor of the nonmovant, and a fact is

“material” if it may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

If the party seeking summary judgment carries its initial burden of demonstrating the

absence of a genuine issue of material fact, the burden shifts to the nonmovant to “set forth specific

facts showing that there is a genuine issue for trial.” Jd. at 256. Where the nonmovant fails todo

so, a court treats the facts set forth by the moving party as “undisputed.” Muhammad, 621 F. App’x

at 100; see Fed. R. Civ. P. 56(e)(2); L. Civ. R. 56.1(a). However, a moving party is not

automatically entitled to summary judgment simply because “the opposing party does not

respond.” Anchorage Assocs. v. V.I. Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting

Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir. 1989)). Before granting summary judgment, a court

must determine “that judgment for the moving party is appropriate.” /d. (internal quotation marks

omitted).

DISCUSSION

Plaintiff moves for summary judgment on its contractual indemnification claim. (MSJ at

12, 19; see also ECF No. 1 YJ 27-33.) The Indemnity Agreement contains a choice-of-law

provision selecting Texas law. (Indemnity Agreement § 16.22 (“This Agreement shall be governed

by and construed in accordance with the laws of the State of Texas.”).) Curiously, Plaintiff makes

no mention of this clause whatsoever and instead acts as if New Jersey law applies. (See MSJ 12-

14.) Because Defendants did not file anything related to the pending motion, they too did not

"mention the clause and they did not dispute Plaintiffs application of New Jersey law. Accordingly,

the Court will treat the choice-of-law issue as forfeited and apply New Jersey law. See Williams v.

BASF Catalysts LLC, 765 F.3d 306, 316-17 (3d Cir. 2014) (holding that choice-of-law issues are

subject to forfeiture); N.J. Chinese Cmty. Ctr. v. McAleer, No. 21-8320, 2025 WL 1564869, at *18

n.14 (D.N.J. June 3, 2025) (compiling cases).

Under New Jersey law, an obligation to indemnify can be created by contract. See Ramos

v. Browning Ferris Indus. of S. Jersey, Inc., 510 A.2d 1152, 1159 (N.J. 1986). “Indemnity contracts

are interpreted in accordance with the rules governing the construction of contracts generally.” Id.

“Where the obligations of the parties are clear and unambiguously set forth in the indemnity

agreement, the court should summarily enforce such indemnification provisions.” Politz Enters.,

Inc. v. Evanston Ins. Co., No. 25-1919, 2026 WL 881655, at *5 (D.N.J. Mar. 31, 2026) (quoting

Andre Constr. Assocs., Inc. v. Catel, Inc., 681 A.2d 121, 123 (N.J. Super. Ct. L. Div. 1996)).

Moreover, “[a] party is entitled to indemnification only if he or she is without fault and his or her

liability is purely constructive, secondary or vicarious.” Jd. (quoting Fireman’s Fund Ins., Co. v.

360 Steel Erectors, Inc., No. 16-2782, 2018 WL 1069417, at *4 (D.N.J. Feb. 26, 2018)); see also

Ramos, 510 A.2d at 1159 (“To be entitled to indemnification as one who is secondarily or

vicariously liable, a party must be without fault.”’).

Here, the Indemnity Agreement is “clear and unambiguous[]” and must be “summarily

enforce[d].” Politz Enters., Inc., 2026 WL 881655, at *5 (quoting Andre Constr. Assoc., Inc., 681

A.2d at 123). The Indemnity Agreement provides that Defendants will indemnify GMIC “against

ANY AND ALL LOSS WHATSOEVER, including but not limited to any and all liability, loss,

claims, demands, costs, damages, attorneys’ fees and expenses of whatever kind or nature”

sustained by GMIC due to “the execution and/or delivery by [GMIC] of any bonds.” (Indemnity

Agreement § 3.) As pertinent here, the Indemnity Agreement also provides that GMIC shall be

indemnified for “all fees and costs for investigation{ and] accounting” “in connection with

claims ... relating to...a bond.” Ud. § 3.2; see also id. § 4.2 (giving GMIC the right to incur

similar expenses).) The Indemnity Agreement also entitles GMIC to recover attorneys’ fees in

connection with both actions related to the bonds and actions to enforce the Indemnity Agreement,

such as the present action. (See id. § 4.5 (“In any suit on this Agreement, Surety may recover its . . .

reasonable attorneys’ fees incurred in such suit... .”); id. § 4.6 (‘Surety shall have at all times the

right but not the obligation to retain counsel of its choice to defend itself from any claim, lien,

levy, liability, suit or judgment on any Bond.... The cost of retaining such counsel shall be

included within the Indemnitors’ obligation to indemnify, exonerate and hold Surety harmless.”).)

These provisions clearly require Defendants to indemnify GMIC for the cost of the

settlement agreement with Newark Solar, the legal fees GMIC has incurred in defending against

claims under the bonds and litigating this action, and the cost incurred in investigating claims under

the bonds. See also Guarantee Co. of N. Am. USA v. SBN Enters., Inc., No. 09-5399, 2011 WL

3205318, at *3 (D.N.J. July 27, 2011) (finding indemnitors liable for “consultants’ and attorneys’

fees” under the “plain language” of-a similar agreement).

The Indemnity Agreement further provides:

As to any claim or suit hereunder, an itemized statement of claims or losses paid or

liabilities incurred and/or expenses paid or incurred, declared to be true and correct

by an employee or agent of Surety, or the vouchers or other evidence of

disbursement by Surety, shall be prima facie evidence of the fact and extent of

liability hereunder of Principal and Indemnitors ... .

(indemnity Agreement § 4.4.) “Courts have previously held that such prima facie evidence clauses

in indemnity agreements are valid and enforceable, and the Court similarly recognizes the clause

in the Indemnity Agreement at issue.” Guarantee Co., 2011 WL 3205318, at *3 (citing Fallon

Elec. Co. v. Cincinnati Ins. Co., 121 F.3d 125, 129 (3d Cir. 1997)).

Such clauses “shift[] the burden to the non-movant to show that a rational factfinder could

determine that liability has not attached.” N. Am. Specialty Ins. Co. vy. Arch Concept Constr., Inc.,

No. 21-287, 2022 WL 18024210, at *5 (D.N.J. Dec. 30, 2022) (alteration in original) (quoting

Centennial Ins. Co v. Horizon Contracting Co., No. 05-3917, 2008 WL 4791657, at *9 (D.N.J.

Oct. 31, 2008)). “In the context of summary judgment, ‘once a surety has submitted the required

documentation of payments, the burden under Rule 56 shifts to the principal to prove the existence

of a genuine issue of material fact for trial.’” Allied World Ins. Co. v. Perdomo Indus., LLC, No.

17-3027, 2018 WL 4623160, at *4 (E.D. Pa. Sept. 25, 2018) (quoting U.S. Fidelity & Guar. Co.

v. Feibus, 15 P. Supp. 2d 579, 582 (M.D. Pa. 1998)).

GMIC has requested indemnification in the amount of $2,470,104.09 plus interest. (MSJ

at 2, 19; see supra note 3.) GMIC has adequately substantiated their indemnification requests of

$2,273,000.00 for the settlement with Newark Solar and $82,668.59 for consulting services. (See

ECF No. 32-9 (settlement agreement between GMIC and Newark Solar for $2,273,000.00); ECF

No. 32-10 (check from GMIC to Newark Solar for $2,273,000.00); ECF No. 32-14 (consulting

invoices totaling $82,668.59 and checks showing that amount was paid).) However, while GMIC

requests indemnification in the amount of $114,435.50 for legal services, the invoices it has

provided only add up to a total of $102,751. (See ECF No. 32-13.) While GMIC has provided

checks and an affidavit indicating that other payments have been made adding up to a total of

$114,435.50, out of an abundance of caution, the Court will only award the lower amount of

$102,751 at this time. (See ECF No. 32-13 (checks demonstrating payment of $104,061.50 for

legal services); ECF No. 32-2 ¥ 27 n.1 (affidavit indicating that an additional amount of $10,374

had recently been paid but copies of the checks had not yet been received).) Therefore, GMIC has

adequately substantiated its entitlement to $2,458,419.59. Defendants have provided nothing to

challenge that amount.’ Accordingly, the Court GRANTS summary judgment in favor of GMIC

> There is also no indication that GMIC bears any fault, which would defeat an action for indemnification,

or that its liability is anything but vicarious. See Ramos, 510 A.2d at 1159.

for the amount of $2,458,419.59. See Hosiery Corp. of Am., Inc. v. Int’] Data Processing, Inc., No.

89-115, 1991 WL 30015, at *14 (D.N.J. Feb. 28, 1991) (“[A] court may decide that defendant is

liable for a certain amount of damages, although a further amount remains in dispute.”). Pursuant

to the Indemnity Agreement, this indemnification obligation shall be joint and several between

Summit and Liu. (See Indemnity Agreement § 16.1 (“The obligations of the Indemnitors hereunder

are joint and several.”).) GMIC request for an additional $11,684.50 is DENIED without

prejudice.

GMIC also summarily requests that the Court grant summary judgment in GMIC’s favor

“for the amount of the loss to be incurred in connection with the State Court Action.” (MSJ at 19.)

GMIC provides no meaningful argument for the requested relief, so it is forfeited. See N.J. Dep’t

of Env’t Prot. v. Am. Thermoplastics Corp., 974 F.3d 486, 492 n.2 (3d Cir. 2020) (“As this

argument was vaguely presented without factual or legal support, it is forfeited for lack of

development.”’). Indeed, although not affirmatively deciding so, the Court is highly skeptical that

such relief is available prior to GMIC’s payment of those losses. See Ditzler v. Surgical Care

Affiliates, Inc., No. A-3151-21, 2023 WL 3144135, at *4 (Super. Ct. App. Div. April 28, 2023)

(“The cause of action for indemnity does not technically accrue until payment of the judgment by

that defendant.” (cleaned up) (quoting Harley Davidson Motor Co. v. Advance Die Casting, Inc.,

696 A.2d 666, 671 (N.J. 1997))); Koninklijke Numico N.V. v. KEB Enters. LP, No. 02-1529, 2003

WL 1746405, at *3 (D. Del. Mar. 31, 2003) (“[J]ndemnification claims are properly dismissed as

a matter of law when the plaintiffs ‘seek indemnity for liabilities which they have not yet

incurred.’” (quoting Vista Co. v. Columbia Pictures Indus., Inc., 725 F. Supp. 1286, 1291

(S.D.N.Y. 1989)). Accordingly, GMIC’s request for future damages related to the State Court

Action is DENIED without prejudice.

GMIC also requests that the Court award it interest on the amounts calculated above. (MSJ

at 2, 19.) GMIC is correct that it is owed interest under the Indemnity Agreement. (See Indemnity

Agreement § 3.) GMIC, however, has provided no interest rate, start date for interest, or proposed

calculation of interest. Accordingly, at this time, the Court is unable to calculate the appropriate

interest amount, and this request is DENIED without prejudice. See Lankford v. Irby, No. 04-

2636, 2006 WL 2828552, at *8 (D.N.J. Sept. 29, 2006).

Within seven (7) days, GMIC shall advise the Court via letter how it wishes to proceed

with respect to the damages related to the State Court Action and the additional $11,684.50 in

attorneys’ fees. If it wishes to continue to pursue either or both of those amounts, the Court is

inclined to defer any calculation of interest until the total principal amount of damages and fees is

determined.

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CONCLUSION

For the reasons set forth above, GMIC’s Motion for Summary Judgment is GRANTED in

part and DENIED in part. An appropriate Order accompanies this Memorandum Opinion.

fo \ ae “

ROBERT KIRSCH oN □

UNITED STATES DISTRICT JUDGE os

Dated: July 20, 2026

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