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The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of either the American Bar Association or the Tort and Insurance Practice Section unless adopted pursuant to the bylaws of the Association.
Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only.
1998 American Bar Association. All rights reserved. Printed in the United States of America.
02 01 00 99 98 5 4 3 2 1
Salvage by the surety / George J. Bachrach, editor. p. cm. Includes bibliographical references. ISBN 1-57073-593-X (pbk.) 1. Suretyship and guarantyUnited States. 2. Debtor and creditorUnited States. 3. Compensation (Law)United States. I. Bachrach, George J. KF1045.S25 1998 346.7307' 4dc21 98-28314 CIP
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Page i
Introduction
The Fidelity and Surety Law Committee of the Tort and Insurance Practice Section of the American Bar Association is pleased to present this publication entitled SALVAGE BY THE SURETY. Suretyship is a credit transaction in which a surety, in providing bonds on behalf of its principal, is extending the surety's credit to the principal in order for the principal to enter into a contract with an obligee. The surety expects to incur no loss as a result of that extension of credit. In the event that the surety incurs a loss, the surety expects to be reimbursed for its loss by its principal and any thirdparty indemnitors. That reimbursement is salvage to the surety, whether it comes from the assets of its principal and any indemnitors or from claims against other third parties.
This publication is an outgrowth from the Surety Program entitled Salvage by the Surety presented on August 3, 1997 by the Fidelity and Surety Law Committee at the Annual Meeting of the American Bar Association in San Francisco, California. This publication is a comprehensive overview of the surety's substantive and procedural rights to obtain salvage, and the issues that may impede the surety's attempts to obtain salvage. Specifically, the seven chapters in SALVAGE BY THE SURETY are as follows:
The Surety's Rights to Obtain Salvage Exoneration, Reimbursement, Subrogation and Contribution by George J. Bachrach. Chapter 1 examines the surety's basic legal, contractual, statutory and equitable rights to obtain salvage through the surety's rights of exoneration, reimbursement, subrogation and contribution.
A Toast: 'To The Underwriters' The Underwriting Process and Salvage by the Surety by Marilyn Klinger. Chapter 2 examines the issues of what steps the underwriters may take to protect the surety's salvage rights at the time that the agreement of indemnity is executed and the bonds are written for the principal.
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The Principal's Construction Contract Claims as Salvage A Primer by Patrick J. O'Connor, Jr. Chapter 3 examines the principal's construction contract claims as potential salvage for the surety. While the principal's construction contract claims may be seen as "contract funds" under the original contract between the principal and the obligee, they are, in fact, an addition to the original contract price. As a result, the principal's claims against the obligee can be considered as salvage to the surety.
The Search for Assets What is Out There and How Can it be Found? by Leslie Chiasson. Chapter 4 examines the ways in which a surety may search for assets of the principal and the indemnitors during the underwriting stage and as the surety seeks to obtain salvage to reimburse the surety's loss.
The Surety's Claims Against Third Parties by James D. Ferrucci and Scott D. Baron. Chapter 5 examines the surety's rights against third parties such as accountants, design professionals, including architects and engineers, banks, subcontractors and suppliers, the principal's insurers and others. These claims are non-contractual claims as there is no privity of contract between the surety and the third parties. The surety that is successful in such claims is obtaining true salvage to reimburse its loss.
Environmental Concerns of the Surety Seeking Salvage by Mark A. Welge. Chapter 6 examines the concerns of the surety that obtains liens against the real property of the principal and the indemnitors, and subsequently learns that there are environmental problems which reduce or eliminate the salvage value of the real property, or may potentially expose the surety to an even greater loss.
The Impact of the Bankruptcy Code on the Surety's Pursuit of Salvage by Joanne S. Brooks and Robert F. Carney. Chapter 7 examines the surety's rights against the principal and the indemnitors in the event of the filing of corporate and/or personal bankruptcy proceedings.
Included within the seven chapters in SALVAGE BY THE SURETY are numerous bibliographies and references to the many other books, digests, articles and papers that concern the surety's rights and ability to obtain salvage to reimburse its losses.
Page iii
The editor and the authors of the various chapters in SALVAGE BY THE SURETY wish to give a special thanks to Duncan L. Clore and his firm, Strasburger & Price, of Dallas, Texas. Duncan Clore's guidance and assistance was invaluable in the original presentation of these materials at the Fidelity and Surety Law Committee Surety Program at the Annual Meeting of the American Bar Association in San Francisco, California. Furthermore, without the wonderful technical assistance of Strasburger & Price in combining and reformatting the materials received from many sources, this publication could not have been put together. All of us hope that SALVAGE BY THE SURETY will become an important tool in the libraries of all of those who are interested in the surety's rights and ability to obtain salvage to reimburse its losses.
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