WHAT’S IN A NAME?

By Jack Burch July 20, 2018 Articles

Every once in a while a bond may be issued which does not precisely identify the obligee by its formal name. For example, it may identify the obligee as Big Contractor Company, when that is a trade name and the correct name of the obligee is ABC, Inc., d/b/a/ Big Contractor Company. Sometimes a bond may state that the principal is Electrical Contracting when in fact the correct name is Electrical Contracting of Georgia, Inc.

 More rare, but once in a blue moon, the surety may not be precisely identified. For example, it may recite the name as Surety Casualty, when in fact it is really Surety Casualty Insurance Company of Massachusetts. Since bonds are subject to the Statute of Frauds, the question then becomes whether parole evidence can be introduced to correct a misnomer.

 In the recent case Colonial Oil Indus., Inc. v. Lynchar, Inc., S17G1788, 2018 WL 3014466 (Ga. June 18, 2018), the Georgia Supreme Court held that testimony could be used to fix a misnomer caused by the use of a trade name in a guaranty, and that the Statute of Frauds did not bar a witness from testifying as to the identity of the real parties. Since there is no distinction in Georgia between suretyship and guaranty, under O.C.G.A. § 10-7-1, this holding applies to bonds.

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War Story: Bank Shakedown?

By Greg Veal June 14, 2018 Articles

Have you ever battled a lender over priority to contract funds? [Sure you have.] And have you ever taken collateral or collected indemnity without knowing the source of the funds? [Same answer.] But have you ever been sued by a bank for taking collateral or collecting indemnity? When faced with demands for collateral and indemnity, indemnitors may voluntarily grant the surety a security interest in properties previously conveyed to family or controlled entities without consideration. Indemnitors may even post cash collateral or make payments against their liability under the GAI. A disappointed lender, learning of those transactions, could then sue the surety—it has happened.

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Bovis, Kyle, Burch & Medlin, LLC surety win written about by the Fulton County Daily Report.

By May 14, 2018 News/Events/Seminars

Bovis Kyle’s recent representation of a surety client in the Georgia Supreme Court has made the news. On May 11, 2018, the Fulton County Daily Report published “Ga. Justices Toss Punitive Damages Against Surety for Conservator’s Theft.” The Daily Report interviewed Tim Burson for the article on the arguments Bovis Kyle successfully pursued on behalf of a surety client.

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Protecting Your Business Finances During Your Divorce

By John Bovis May 14, 2018 Articles

Managing and protecting your business during a divorce is critical to your personal, professional, and financial security. 

Business assets may be at risk for being divided up between both parties, causing disruptions to you, your business operations, and the revenue it generates.

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Georgia Supreme Court Holds Surety not Liable for Principal's Punitive Damages

By Tim Burson May 7, 2018 Articles

Bovis Kyle won for the surety in a landmark decision from the Georgia Supreme Court holding that, without specific statutory authority, a surety cannot be assessed liability for its principal’s punitive damages. In Estate of Gladstone, No. S17G1472 (Ga. May 5, 2018), the court reversed an award of punitive damages against The Ohio Casualty Insurance Company. The decision not only benefits commercial probate sureties but reinforces existing law applicable to contract bond sureties as well.

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THREE TAKEOVER CHALLENGES UNDER THE MILLER ACT

By Jack Burch April 25, 2018 Articles

When the principal on a Miller Act project ceases to perform and a demand is made on the surety, the challenges in working out a takeover agreement with the Government begin. In this article we discuss three issues that crop up: 1) the necessity of a declaration of default to the surety’s performance, 2) whether a contracting officer has authority to accept a tender agreement, and 3) how to contest a claim for pre-default liquidated damages.

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Dividing Business Assets When Both Spouses Own the Business

By April 23, 2018 Articles

There are unique challenges that business owners face in a divorce when both spouses own the business. Like personal assets, those related to your business may need to be divided according to existing agreements or decisions made by the courts. Equitable distribution consists of determining the time and manner in which assets were acquired in order to divide them between both parties. Read More

Dividing Business Assets When One Spouse Owns the Business

By John M. Bovis April 9, 2018 Articles

Dividing assets in a divorce will have a lasting impact on your personal and professional future. Many couples share ownership of a business, making it subject to equitable distribution. But dividing a business when one spouse owns the business may lead to other challenges that both parties need to understand.

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