Mitigation? I Don’t Think So. (there’s a twist)
A recent case out of Ontario’s Superior Court of Justice focuses on the obligation of an insurer under a labour and materials payment bond. What makes the case interesting is that on the face of it, the plaintiff sub contractor ended up in a better position as a result of all of the circumstances surrounding the underlying claim including multiple breaches by the GC. The insurer argued that this was a simple case of mitigation and that the plaintiff had mitigated its losses and was therefore not entitled to recovery under the bond. The court saw it differently.
In Lopes v. Guarantee Company of North America, the plaintiff was a sub-contractor who sued under a surety bond issued to the General Contractor, Gorf Manufacturing. Gorf failed to pay invoices to the plaintiff totaling approximately $250,000. Gorf subsequently abandoned the project entirely. The plaintiff sent Notice of Claim to the insurer for the unpaid invoices in accordance with the bond terms. Concurrently, the project owner sought from the insurer that arrangements be made for completion of the project pursuant to the Performance Bond that had been issued together with the labour and material bond. The insurer retained a new GC who accepted new bids to complete the work pursuant to a Completion Contract.
The plaintiff bid to complete its work with the new GC and was awarded the contract which paid it $550,000 more than what they would have been paid under the original contract prior to the default by Gorf. In other words the abandonment of the project by Gorf resulted in a significant windfall for Lopes. From a commercial perspective, the plaintiff had been put in a better position as a result of Gorf abandoning the project that it would otherwise have been.
The insurer argued the doctrine of mitigation, noting that by entering into the new contract at a premium, the plaintiff had mitigated its damages. The plaintiff took the position that the benefit gained under the successful bid for the Completion Contract was irrelevant to the unpaid invoices breach.
The court noted that the wronged party has a duty to mitigate damages that were ‘consequent to the breach’. In this case the plaintiff’s windfall was not consequent to the breach for which indemnity was sought under the labour and material bond; i.e. unpaid invoices. Rather the windfall was related to the original GC (Gorf) abandoning the project. Therefore, the benefit obtained by Lopes in successfully bidding for the Completion Contract could not be characterized as mitigation of their damages for the unpaid invoices which was the breach that gave rise to the bond claim. This case is unique as the defendant was arguing that the plaintiff was not entitled to damages because it had mitigated its damages. The court did not find that the plaintiff did not mitigate its damages. It simply found that the principle of mitigation did not apply.
This decision is an interesting read and a good refresher on the principles of mitigation. The decision can be found here.