Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:99-cv-00721-FMA

Document 58

Filed 01/22/2004

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ THE AMERICAN INSURANCE COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES ) ) Defendant. )

No. 99-721c (Judge Francis A. Allegra)

PLAINTIFF'S RESPONSE TO DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS Plaintiff American Insurance Company (Surety) hereby responds to the defendant government's proposed findings of fact as follows: 1-3. 4. Admitted. Neither admitted nor denied. The Surety does not know what the government

means by "surety agreement" or what it means to "enter a default of" said agreement. 5. Admitted. By way of further response, and as explained in greater length in the

Surety's response brief to the government's motion for summary judgment, as agreed between the government and the Surety, G&C remained the contractor in name only, and the Surety maintained custody and control of the remaining contract funds, which were ultimately paid to C&T Associates, the completion contractor, not G&C, as contracting officer Major John Simms admits in his declaration attached to the government's brief, at ¶ 5; affidavits of David Rost and John Stos, attached to the Surety's opposition brief at Exhibits 1 & 2. G&C's status as nominal contractor at the end of the project thus has no bearing on whether the government owed the Surety a duty to protect contract funds in this case. 6-8. Admitted.

Case 1:99-cv-00721-FMA

Document 58

Filed 01/22/2004

Page 2 of 2

9.

Denied. As set forth in greater length in the Surety's opposition brief, the

contract required the government to approve progress payments only to the extent that the work was done. See FAR reg. 52.232-0005, incorporated into the contract between G&C and the government, attached to the government's brief at App. 6. 10. Admitted. Respectfully submitted, HARRY R. BLACKBURN & ASSOCIATES Dated: January 22, 2003 By: __________________________ PAUL T. DeVLIEGER, ESQUIRE DEREK EDDY, ESQUIRE Attorneys for Plaintiff, American Ins. Co. 1528 Walnut Street Philadelphia, PA 19103 (215) 985-0123

Q:\Firemans.294\McG-APRON.041\Pld\response to proposed facts.wpd