Construction, Fee Clause Interpretation: Because Surety’s 2010 Contract Had A Fees Clause, It Was Erroneous To Deny Fees Based On A 2015 Contract Having No Such Clause

2015 Contract Necessarily Referenced The 2010 Contract, So Remand Was Necessary To Determine If Fee Allocation Was Necessary And The Reasonableness Of Surety’s Request.

               In FEI Enterprises, Inc. v. Massachusetts Bay Ins. Co., Case No. B329502 (2d Dist., Div. 2 Apr. 4, 2024) (unpublished), surety won a summary judgment against its general contractor for surety’s declining to contribute to a settlement in a lawsuit related to the surety bond.  Surety moved for $413,556.51 in attorney’s fees, but the lower court denied it on the belief the request was founded on a 2015 contract having no fees clause.  The 2/2 DCA reversed as a matter of law because the 2015 contract did refer to the 2010 contract with the fees clause, necessarily meaning the fees clause was in operation.  On remand, the fee hearing would focus on whether to allocate fees for the surety enforcing the 2010 contract on its implied-in-fact contract claim and on how to fix the amount of reasonable fees to be awarded.  The appellate court itself refused to fix fees because “these are tasks best presented to the trial court in the first instance.” (Slip Op. at p. 17.)