Case 6:15-cv-01388-EFM-GEB Document 2 Filed 12/09/15 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

EFFICIENT ENERGY OF

TENNESSEE, LLC

Plaintiff,

)
)
)

v.

)
)

Civil Action No.

----

)
)
BAJA CONSTRUCTION COMPANY, INC.

and WESTCHESTER FIRE INSURANCE

COMPANY,

)
)

Defendants.

COMPLAINT

Plaintiff Efficient Energy of Tennessee ("EETN" or "Plaintiff'), by and through counsel,

for its causes of action against Baja Construction Company, Inc. ("Baja") and Westchester Fire
Insurance Company ("Westchester") (collectively the "Defendants"), alleges and states:

PARTIES, JURISDICTION, AND VENUE

1.

EETN is a Tennessee Limited Liability Company with its principal place of

business at 1707 Depot Street, Powell, TN 37849.

2.

Baja is a California Corporation with its principal place of business at 223 Foster

Street, Martinez, CA 94553.

3.

Westchester is a Pennsylvania Corporation with its principal place of business at

436 Walnut Street, Philadelphia, PA 19106.

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4.

Venue is proper in this district pursuant to 28 U.S.C. 1391(b)(2) because a

substantial part of the events or omissions giving rise to the claims occurred in Wichita, Kansas.

5.

Jurisdiction is proper in this Court pursuant to 28 U.S.C 1332(a) because there

1s complete diversity of citizenship between Plaintiff and Defendants and the amount in
controversy exceeds $75,000.

FACTS COMMON TO ALL COUNTS

6.

On or about September 27, 2013, EETN entered into an agreement with the

United States Department of Veteran's Affairs to serve as the prime contractor for the Tum-Key
Solar PV project at the Robert J. Dole Medical Center (the "Project"), a facility operated by the
U.S. Department of Veterans Affairs ("VA").

7.

On or about June 15, 2014, EETN entered into a subcontract agreement with Baja

(the "Subcontract"), that required Baja to design, fabricate, and install parking canopies for the
Project. A true and correct copy of the Subcontract is attached hereto as Exhibit A.

8.

After execution of the Subcontract, EETN paid Baja one hundred and thirty-one

thousand two hundred thirty-three dollars and sixty-one cents ($131,233.61 ), an amount equal to
ten percent of the Subcontract amount.

9.

The Subcontract required Baja, within ten days of the execution of the

Subcontract, to provide a performance bond in favor of EETN securing complete performance of

Baja's obligations under the Subcontract. See Ex. A, at 7.

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10.

On or about August 20, 2014, Baja, as principal, and Westchester, as surety,

provided a performance bond (the "Performance Bond") in favor of EETN. A true and correct
copy of the Performance Bond is attached hereto as Exhibit B.

11.

The Subcontract requires timely completion of all work and makes Baja liable for

any damages resulting from a delay by Baja in performing the work. See Ex. A, at 4.

12.

The failure of Baja to perform any of its obligations, covenants, or agreements

under the Subcontract and its failure to correct such non-performance within five working days
following written notice from EETN constitutes a default under the Subcontract. See Ex. A, at
17. Upon default, EETN was permitted to terminate the Subcontract and complete Baja's work,

for which cost Baja remained liable. Id.

13.

During the course o f Baja's performance o f the Subcontract, the V A raised

several issues with Baja's design of the parking canopies.

14.

On August 16, 2014, EETN retained an independent engmeer, Professional

Engineering Consultants, P.A. ("PEC"), to review the design prepared by Baja. PEC confirmed
several deficiencies in Baja's work, including deviations from the applicable building code.
These observations were shared with Baja.

15.

On August 26, 2014, EETN provided written notice to Baja that it was in default

because its design was deficient and its work was behind schedule.

16.

On September 15, 2014, EETN noted that Baja's response to the observations of

PEC still did not address the code violations.

Despite this notification, Baja did not cure this

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material breach of the Subcontract. As a result, EETN was forced to terminate the Subcontract
and secure a replacement subcontractor to complete the work of Baja.

COUNT I

17.

BREACH OF CONTRACT

EETN repeats and incorporates by reference the allegations contained in the

preceding paragraphs of this Complaint as if set forth fully herein.

18.

EETN has properly

performed its

obligations under the above-mentioned

Subcontract.

19.

Baja failed to fulfill its contractual obligations and failed to complete its work in

accordance with the terms of its Subcontract.

20.

Baja engaged in actions that resulted in delay and increased costs to EETN.

21.

The acts and conduct of Baja constitute a material breach of the Subcontract.

22.

The unexcused breach of contract by Baja has caused damage to EETN in an

amount not less than one hundred and eighty-one thousand four hundred thirty-eight dollars and
sixty-two cents

($181,438.62).
COUNT II

23.

BREACH OF PERFORMANCE BOND

EETN repeats and incorporates by reference the allegations contained in the

preceding paragraphs of this Complaint as if set forth fully herein.

24.

EETN timely notified Westchester of its claims against the Performance Bond,

satisfied all conditions under the Performance Bond, and made demand for Westchester's full
performance of its obligations under the Performance Bond.

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25.

Despite demand, Westchester has refused to pay EETN for damages caused by its

principal, Baja.

Westchester's failure to pay EETN constitutes a breach of the Performance

Bond for which Westchester is liable to EETN in an amount not less than one hundred and
eighty-one thousand four hundred thirty-eight dollars and sixty-two cents ($181,438.62).

COUNT III- STATUTORY ATTORNEYS' FEES

26.

EETN repeats and incorporates by reference the allegations contained in the

preceding paragraphs of this Complaint as if set forth fully herein.

27.

Westchester is an "insurance" company as defined by K.S.A. 40-201 and is

therefore subject to the attorneys' fees provision ofK.S.A. 40-256.

28.

Despite demand, Westchester has refused without just cause or excuse to pay the

full amount of EETN's performance bond claim. EETN has incurred and will continue to incur
substantial damages for the prosecution of this action, including but not limited to attorneys'
fees, and is entitled to judgment for those fees and expenses.

PRAYER FOR RELIEF

EETN therefore demands judgment against Defendants as follows:

1.

That this Court grant Judgment in EETN's favor and against Defendants in an

amount not less than One Hundred and Eighty-One Thousand Four Hundred Thirty-Eight
Dollars and 62/100 ($181,438.62), plus pre-judgment and post-judgment interest at the highest
rate allowed by law;

2.

That this Court award reasonable attorneys' fees to EETN pursuant to K.S.A.

40-256;

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3.

That all costs of this action be assessed against Defendants; and

4.

That EETN be awarded such further relief as this Court deems appropriate.

Respectfully Submitted,
Dated: December

j_, 2015

FOULSTON SIEFKIN LLP

By:

wY: A. Hoch, #11747

David R. Green, #26732

1551 N. Waterfront Parkway, Ste. 100
Wichita, KS 67206-4466
Telephone: (316) 267-6371
whoch@foulston.com
dgreen@foulston.com

Attorneys for Plaintiff Efficient Energy of

Tennessee, LLC

DESIGNATION OF PLACE OF TRIAL

Pursuant to D. Kan. Rule 40.2, EETN designates Wichita, Kansas as the place of trial.

Wyatt A. Hoch, #11747

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