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Practice Areas

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Surety & Fidelity Law

WC&S has a versatile team of more than thirty attorneys and paraprofessionals that blends the personal attention and consideration expected of mid-sized law firms with many of the advantages provided by larger firms, such as a dynamic scope of focus areas organized by practice groups comprised of attorneys recognized for various concentrations. The firm prides itself in this balance, as it enables attorneys to concentrate in particular areas of practice while maintaining an outlook that is as interdisciplinary in nature as the problems faced by the businesses of all sizes we represent.

Suretyship is an ancient undertaking. They are written records that reference surety contracts date as far back as 4,700 years. It is safe to say the industry has come a long way over the course of that time. Fortunately, the Surety & Fidelity Law Team at Wright, Constable & Skeen can help people keep up to date on developments within the industry.

Our Surety and Fidelity Law Group is recognized nationally as a leader in the surety and fidelity industry.

The Group’s attorneys are actively engaged in many of the prominent and notable legal and industry based professional groups and associations serving as regular speakers, authors and authorities on important topics and developments within the field.

The product of this approach is a commitment to engagement, accessibility, creativity, problem solving and capitalizing our opportunities.

We have expertise in the following areas:

  • Performance Bond Claims
  • Payment Bond Claims
  • Bankruptcy
  • Indemnity/Subrogation
  • Commercial Surety Bonds

PERFORMANCE BONDS CLAIMS

Claims against performance bonds are inevitable. They are frequently asserted when the principal on a bonded project goes out of business, defaults under its contract, is terminated by the obligee, or simply cannot financially afford to complete the bonded project. Our Surety and Fidelity Law Group has extensive experience in addressing a surety´s performance bond claims.

Our attorneys have a thorough understanding of how clients are affected by federal, state, or local obligations, the Miller and Little Miller Act, and private obligations such the AIA – A312 and manuscript performance bonds. We work closely with clients to provide counsel on performance bond claims in a variety of ways, including assisting the surety in fulfilling its performance bond obligations, asserting and protecting its rights as well as, defense of the surety in litigation.

The Surety and Fidelity Law Group has the depth of staff to cover all the bases and mitigate potential exposure in even the most complex matters.

PAYMENT BOND CLAIMS

Claims will be made against the payment bond when the principal on a bonded project fails to pay laborers, subcontractors and suppliers. Our attorneys have extensive experience representing sureties in the claim investigation, resolution and litigation stages of payment bond claims.

We offer invaluable experience in investigating, evaluating and valuing claims, and negotiating resolutions by working with the principal, obligees and claimants to understand the claims, determine the defenses and other practical concerns that surround such claims. The Group’s attorneys have substantial expertise in dealing with the AIA – A312 Payment Bond 45 day response deadline and can counsel and guide our clients in providing proper and timely responses to claims under AIA – A312 Payment Bonds.

Litigation may result if the claim cannot be fairly and reasonably resolved. With the necessary depth of staff, knowledge and experience, we provide clients throughout the Mid-Atlantic with the representation required in these types of matters.

The attorneys dedicated to this area have litigated all of the issues pay-if-paid and pay-when-paid clauses, statutes of limitations, failure to provide timely or proper notice under the Miller Act, Little Miller Act or the private payment bond, improper venue, improper claimant, scope of payment bond coverage, damages claimed, delay claims and more.

In responding to payment bond claims, we offer our clients the essential elements of experience and familiarity with local jurisdictions.

BANKRUPTCY

Bankruptcy matters can develop into some of the most complicated legal issues in surety and fidelity law.

Our Surety and Fidelity Group includes attorneys who have developed national reputations in representing the surety in bankruptcy, authored various papers and texts on the subject and spoken at numerous conferences.

The Group has represented sureties in major national bankruptcy matters and defended sureties from trustees and debtor-in-possession claims and preference litigation. Our experience covers all types of bonded obligations, including commercial, retail and construction bonds, court bonds, custom bonds and other license, permit and miscellaneous commercial surety bonds.

Our attorneys also cover aspects such as:

  • Automatic stay of litigation
  • Financing and executory contract issues
  • Reorganization plans
  • Objections and confirmation hearings
  • Proofs of claims
  • Non-dischargeability actions
  • Litigation over contract funds, including trust funds under Section 541 and fraud under Section 523

We also handle involuntary bankruptcy, which becomes necessary when bankruptcy must be used as a tool to protect the surety´s rights in collateral or other property.

Wright, Constable & Skeen has the experience and staff necessary to effectively guide clients through the process of sureties and their many rights and protections under the Bankruptcy Code.

INDEMNITY/SUBROGATION

Suretyship is not to be confused with insurance. Contrary to risk underwriting in insurance, surety looks to its principal and indemnitors for reimbursement when it incurs a loss in order to be made whole. A surety requires the execution of an indemnity agreement in exchange for its agreement to issue bonds for a principal, which gives the surety very broad powers and rights with respect to reimbursement for losses, costs and expenses, including attorney´s fees, incurred by reason of having issued the bonds; payment of collateral; access to books and records; holding contract funds in trust; and other rights.

In addition to its contractual rights set forth in the indemnity agreement, sureties also enjoy numerous rights under common law; equitable subrogation, exoneration and qui tam. Pursuing and protecting its indemnity and subrogation rights is critical to the surety´s ability to be made whole.

The Surety and Fidelity Law Group is very experienced at aggressively pursuing principals and indemnitors for reimbursement through investigation, asset location, negotiation, temporary restraining orders, injunctions and litigation.

COMMERCIAL SURETY BONDS

Having developed an advanced approach to managing commercial surety bond claims through investigating, evaluating, and then handling claims, the Surety and Fidelity Law Group is able to serve clients in a way that best suits their individual interests. The Group works closely and personally with clients to advise on applicable laws, rules and regulations governing such bonds and the best manner to resolve claims regarding such bonds.

Over the many years we have been representing surety clients, our attorneys have been involved with virtually every type of commercial surety bond available. We have represented sureties in matters involving bonds such as probate, license and permit, utility, customs importer, bail, subdivision, supersedes and injunction, mortgage broker, tax payment, health care, notary, automobile dealership, and other statutory bonds.

GROUPS AND ASSOCIATIONS

District of Columbia Bar Association
Maryland State Bar Association
American Bar Association – Fidelity and Surety Law Committee
American Bar Association – Forum on the Construction Industry
Defense Research Institute
Surety and Fidelity Claims Institute
National Bond Claims Association
Chicago Surety Claims Association
Baltimore Building Congress & Exchange, Ambassador Committee
Professional Women in Construction – D.C. Chapter
American Bar Association – Public Contract Law Section
Federal Bar Association
Board of Contract Appeals Bar Association
Associated Builders & Contractors – Baltimore Metro Area
Washington Building Congress
American Subcontractors Association
Associated General Contractors

The Surety and Fidelity Law Group Publications and Seminars include:

Performance Bond Issues

Co-Author, “The Performance Bond Surety´s Rights to the Contract Funds,” Chapter 4 of THE LAW OF PERFORMANCE BONDS, 2D ED (Lawrence R. Moelmann, Matthew M. Horowitz and Kevin L. Lybeck, eds) (2009).

Author, “The Surety Performance Bond Lifeboat – Bailing Out and/or Salvaging Someone Else´s Wreck” (2007), republished as “A Primer for the Surety´s Handling of Performance Bond Claims” (2008).

Co-Presenter: Hot Topics For The Performance Bond Surety, Northeast Surety & Fidelity Claims Conference, New Jersey 2008;

Contributing Author to The Performance Bond Manual (Maryland section). Tort and Insurance Practice Section, American Bar Association (Lawrence Lerner and Theodore M. Baum, Eds. 2006).

Author, The Surety and the Federal Government: Negotiating a Minefield, Surety Claims Institute (2005);

Co-Author, “Financing the Principal,” Chapter 4 of the BOND DEFAULT MANUAL, 3D ED (Duncan L. Clore, Richard E. Towle and Michael J. Sugar, Jr., eds.) (2005).

Co-Author, “The Financing Surety as a Performing Surety – Law and Practice” (2003).

Co-Author, “The ABC´s of the Surety Claims Process” (primarily the surety´s financing of the principal) presented to the Construction Industry CPAs/Consultants Association (CICPAC) (2003).

Editor for the Surety Program Written Materials for TAKEOVER BY THE SURETY, 2002 ABA/TIPS Fidelity and Surety Law Committee Spring Program in New Orleans, Louisiana in May, 2002.

Chair and Moderator, “Takeover by the Surety: The Obligations That You Forget About (and Wish You Hadn´t)” (1999).

Co-Author, “The Surety and the Court of Federal Claims” (1995) and “The Surety and the Court of Federal Claims – Revisited” (1999).

Payment Bond Issues

Contributing Author to The Payment Bond Manual, Third Edition (Maryland section). Tort and Insurance Practice Section, American Bar Association (Wayne D. Lambert, Todd R. Braggins, and J. Blake Wilcox, Eds. 2006).

Author: Perils and Pitfalls in Payment Bond Claims, A Discussion of Unusual Case Law, Northeast Surety & Fidelity Claims Conference, New Jersey 1997.

Bankruptcy Issues

Author, “Surety Underwriting and Claims Handling With a Principal in Bankruptcy” (2009).

Author, “The Surety´s Claim in Bankruptcy – Obtaining Reimbursement for the Surety´s Loss” (2009).

Author, “Money and Time – The Critical Issues in Construction Industry Bankruptcies” (2009).

Author, “The Principal´s Bankruptcy: What You Really Need to Know” and “The Surety´s Strategy and Rights When the Principal Files for Bankruptcy” (2009).

Author, “Do You Have Trust Issues? The Surety´s Use of Trust Fund Rights in Bankruptcy”, Surety Claims Institute 2009;

Author, “The Surety´s Proof of Claim – Obtaining Reimbursement for the Loss” (2008).

Author, “The Surety´s Proof of Claim and Obtaining Reimbursement for the Surety´s Loss” (2005).

Author, “The Principal´s Sale of Substantially All of Its Assets in Bankruptcy – Who, What, Where, When, Why, and How, and the Rights of the Surety” (2002).

Co-Author, “The Principal´s Bankruptcy – Practical Problems and Potential Solutions in Handling Payment Bond Claims” (2001).

Co-Author, “The Surety´s Rights to the Contract Funds in the Principal´s Chapter 11 Bankruptcy Case,” 35 TORT & INS. L.J. 1 (1999).

Indemnity/Subrogation/Salvage Issues

Co-Editor, THE SURETY´s INDEMNITY AGREEMENT – LAW & PRACTICE, 2D ED (2008).

Contributing Author, SURETY´s INDEMNITY AGREEMENT – LAW & PRACTICE, 2D ED (2008), Chapter 3, Tort and Insurance Practice Section, American Bar Association (Marilyn Klinger and George J. Bachrach, Eds. 2008).

Author, “Avoiding Loss and Obtaining Reimbursement in the Event of Loss Under the Indemnity Agreement” (2005).

Co-Presenter: Salvage Investigation – Resources and Options, Northeast Surety & Fidelity Claims Conference, New Jersey 2005;

Co-author, “The Surety´s Subrogation Rights,” Chapter 23 of THE LAW OF SURETYSHIP, 2D ED (Edward G. Gallager, ed.) (2000).

Editor, SALVAGE BY THE SURETY (1998).

Author, “The Surety´s Rights to Obtain Salvage – Exoneration, Reimbursement, Subrogation, and Contribution,” Chapter 1 of SALVAGE BY THE SURETY (George J. Bachrach, ed.) (1998).

Co-Author, Pursuit of the Surety; Rights Against a Principal and Indemnitors when the Surety Settles Claims Requiring Future Performance, Surety Claims Institute (1996).

Editor, THE SUBROGATION DATABASE: CASES CONCERNING THE SUBROGATION RIGHTS OF THE CONTRACT BOND SURETY (1995), updated on January 31, 1998.

Editor, SUBROGATION RIGHTS OF THE CONTRACT BOND SURETY (1990).

Editor, THE AGREEMENT OF INDEMNITY: PRACTICAL APPLICATIONS BY THE SURETY (1989).

Co-Author, “The Agreement of Indemnity – The Surety´s Handling of Contract Bond Problems: The Enforcement of the Surety´s Rights against the Principal and the Indemnitors under the Agreement of Indemnity” (1989).

Miscellaneous Surety Issues

Co-Author: Federal and State Regulatory Structures for Public-Private Partnerships, Presented at the ABA Mid-Winter Meeting of the Fidelity and Surety Law Committee, New York 2009;

Co-Author: “A Primer on the Tucker Act” (Surety Claims Institute Annual Meeting in June, 2008).

Author: “Consultant and Expert Witness Claim Files: Are They an Open Book?” (18th Annual Northeast Surety and Fidelity Claims Conference in September, 2007).

Co-Author: Fundamentals of Electronic Discovery and the New Federal Rules, Northeast Surety & Fidelity Claims Conference, New Jersey 2007;

Author: The Surety´s Reservation of Rights, Northeast Surety & Fidelity Claims Conference, New Jersey 2006;

Author: Look Who´s Bringing Home The Bacon – How Recent Decisions Interpreting the Davis-Bacon Act Can Negatively Affect The Surety, Northeast Surety & Fidelity Claims Conference, New Jersey 2003;

Author: “The Surety´s Use of Prompt Payment Statutes to Obtain Control of Contract Funds,” presented at the Northeast Surety & Fidelity Claims Conference, October, 1998.

Author, “Customs Bonds and the Chapter 11 Principal” (1994).

Co-Author, CONTRACT SURETY (AFSB 152), Chapters 12 and 13 entitled “Contract Surety Claims” for the American Institute for Chartered Property Casualty Underwriters and the Insurance Institute of America (1992).

Fidelity Issues

Co-Author, Overview and Introduction to the 1986 Form 24 Financial Institution Bond, Tort and Insurance Practice Section;

Co-Author: “Jury Trial Issues in Surety and Fidelity Litigation” (22nd Annual Northeast Surety and Fidelity Claims Conference in September 2011)