If there’s one admonishment I’ve given a lot at this construction law blog, it is to be very careful with mechanic’s liens.  This post is not about that.  This post is about another major piece of advice that has been set out here at Construction Law Musings, namely, always show up for court and respond to lawsuits.

A recent case out of the Eastern District of Virginia federal court is yet another reminder that you should always, always respond to lawsuits.  In Great Midwest Ins. Grp. v. WB Constr. Grp., Inc., the Court was considering a payment bond claim that was partially paid by Great Midwest.  As is the case with all suretys, Great Midwest had an indemnity agreement with a principal of WB Construction, Ms. Biggers.  The Surety then sued to enforce its general indemnity against Ms. Biggers after neither the indemnitor nor WB Construction repaid the $600,163.10 that the Surety paid out under the payment bond.  The Surety then posted service on Ms. Biggers and mailed a copy of the complaint to her address, thus achieving proper service.

As you might have guessed from the title of this post, Ms. Biggers did not respond and the Surety filed for default judgment.  Ms. Biggers then had no right to contest the factual allegations of the Surety, thus leaving the Court to decide this matter without her input.  Needless to say, the Court, after finding proper service and jurisdiction, found that the Surety had pleaded all of the proper factual and legal prerequisites to enforce the general indemnity, found for the Surety, and entered a default judgment against Ms. Biggers.  For more of the details, I recommend reading the case for yourself and let me know your reaction if you do.

The takeaways (aside from pay your bills)?  Always respond to a Court summons, preferably with the help of an experienced construction attorney.  In Ms. Biggers’ case, she lost any opportunity to mitigate the damages through mediation or because she had some form of defense.  We will never know what she could have done because she lost her options when she failed to respond.

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