This dispute centered around a 1995 General Indemnity Agreement (“GIA”) between defendant PEC and Amwest, a surety company. Pursuant to the GIA, PEC agreed to indemnify Amwest in connection with any bonds written on behalf of PEC. In late 1998 or early 1999, Amwest issued a performance bond to the United States as obligee, with PEC as principal, in connection with a construction contract for the Army Corps of Engineers. Shortly thereafter, Swiss Re agreed to provide reinsurance to Amwest on that performance bond.
Two years later, a Nebraska court declared Amwest insolvent and entered an order of liquidation. When PEC was unable to obtain substitute bonding for the Corps construction project, PEC’s involvement was terminated and Swiss Re was required to complete the project at a cost of over 1.4 million dollars, exclusive of legal fees. Swiss Re filed the instant case seeking to enforce the indemnity agreement between Amwest and PEC.
The district court held that the indemnity agreement did not require PEC to indemnify Swiss Re. Specifically, the court concluded that: (1) the indemnity agreement was unenforceable due to a failure of consideration and/or Amwest’s prior material breach of the contract; and (2) the GIA was unenforceable under the doctrine of ‘frustration of purpose.’ Swiss Reinsurance v. Airport Industrial Park doing business as P.E.C. Contracting Engineers, Case No. 2:05-cv-01127 (USDC W.D. Pa. Aug. 27, 2007).