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Surety Market to Achieve Significant Growth in the Near Future

AmTrust Financial Services; Crum & Forster, American Financial Group; The Travelers Indemnity Company; Liberty Mutual Insurance Company Surety Market report aims to provide a 360-degree view of the market in terms of cutting-edge technology, key developments, drivers, restraints and future trends with impact analysis of these trends on the market for short-term, mid-term and long-term during the forecast period. Further, the report also covers key players profiling with detailed SWOT analysis, financial facts and key developments of products/service from the past three years. Global surety market is expected to grow from US$ 15.33 Bn in 2018 to US$ 28.77 Bn in 2027 at a CAGR of 7.5% between 2019 and 2027. The report aims to provide an overview of the global surety market with detailed market segmentation. Also, it analyzes the current surety market scenario and forecasts the market till 2027. The report covers market dynamics affecting the surety market during the forecast period. Furthermore, the report analyzes the competitive scenario, geographic trends, and opportunities in the surety market with respect to all geographic regions. The report also includes the detailed company profiles of the key players in the surety market along with their market strategies. The report also provides the SWOT analysis for all company profiled in the report. Request Sample Copy is Available at: bit.ly/2Sug3do The report enables you to: Formulate significant competitor information, analysis, and insights to improve R&D strategies Identify emerging players with potentially strong product portfolio and create effective counter strategies to gain competitive advantage Identify and understand important and diverse types of Surety under development Develop market entry and market expansion strategies Plan mergers and acquisitions effectively by identifying major players with the most promising pipeline In-depth analysis of the product’s current stage of development, territory and estimated launch date Surety market is experiencing good growth across all the geographical regions of the globe, with the increasing demand for infrastructural development as well as residential construction. Furthermore, the rising adoption of public-private partnership model is another factor fueling the growth of the market. The major companies operating in the surety market include AmTrust Financial Services, Inc.; Crum & Forster; CNA Financial Corporation; American Financial Group, Inc.; The Travelers Indemnity Company; Liberty Mutual Insurance Company; Hartford Financial Services Group, Inc.; HCC Insurance Holdings; IFIC Surety Group; and Chubb Limited among others. The report focuses on an in-depth segmentation of the Surety market based on bond type. The geographic segmentation of the report covers five major regions including; North Americas, Europe, Asia-Pacific (APAC), Middle East and Africa (MEA) and South America (SA). The regional market has been further bifurcated by respective countries. By bond type, contract surety bond accounted for the largest share of the surety market in 2018. Don’t miss out on business opportunities in Surety Market. Speak to our analyst and gain crucial industry insights that will help your business grow. Currently, the surety market penetration rates in the North America region is higher than any other markets across the globe. This is attributed to most of U.S. State governments’ laws that mandate surety bonds. Both the U.S. and Canada Surety markets are majorly ruled by insurers, while banks also play a significant role. However, SAM and APAC region are anticipated to grow at the highest CAGR. Read More… https://www.openpr.com/news/1578564/Surety-Market-to-Achieve-Significant-Growth-in-the-Near-Future-AmTrust-Financial-Services-Crum-Forster-American-Financial-Group-The-Travelers-Indemnity-Company-Liberty-Mutual-Insurance-Company.html

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legislation

Iowa Attorney General issues warning over post cards

DES MOINES, Iowa — Iowa Attorney General Tom Miller is busy making sure Iowans know a scam when they see one. Miller is cracking down on contractors. He proposed a new law that would require contractors to have a $75,000 bond they would pay customers if they fail to complete a job properly. The Attorney General’s office says the number of complaints against contractors rose 28 percent in the last year alone. The Attorney General isn’t only cracking down on contractors. Miller also wants to find out if you or someone you know has received a postcard that he says is not from the federal government. The cards were sent to more than 61,000 Iowans. There’s a picture of the US Capitol on it. It’s stamped “official business” and promises free government benefits. But, it’s actually an insurance pitch. The Missouri company who mailed the cards has been ordered to stop. The company also has to pay a $5,000 fine. https://www.kcci.com/article/brewery-gaining-national-attention-for-infusing-native-american-roots-in-beers/26304952

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Trade credit claims spike points to growing insolvency risk

The economy could see more businesses becoming insolvent, with the number of trade credit insurance claims shooting up 41% in the December quarter from a year earlier. Data collected by National Credit Insurance (NCI) puts the value of each claim at about $97,000. Last year insurers paid out $64 million in trade credit claims, which was up 19% from 2017. “Our findings reveal a higher level of defaults from overdue payments and collection activity,” NCI MD Kirk Cheesman said. “Generally, an increase in these areas typically results in increased insolvency activity within 6-12 months.” The data indicates businesses are becoming caught up in the patchy economic conditions, which saw many retailers closing down during the December quarter – a period when consumer spending is usually at its strongest because of the festive season. Tasman Market Fresh Meats and Laura Ashley were among the big names that went out of business last year. “When it comes to overdue debts, we’re finding that businesses are increasingly willing to take early collection action against their customers and suppliers,” Mr Cheesman said. “And if they’re not paid promptly, they’re increasingly taking legal action.” The NCI Trade Credit Risk Index, a forward-looking indicator of company insolvencies, went up 4% to 798 points in the December quarter, the highest score in three years. The index is derived from combining insurance claims, collection actions and overdue payments data. It may be the ideal time for companies to review their trading terms to prepare for the worsening business outlook. “When companies collapse many others are left out of pocket, so it’s a good time for businesses to review their customers and suppliers and the credit levels they’re granting,” Mr Cheesman said. “All businesses need to remember that trade credit insurance is the best safety net against bad debts, enabling them to insure against customers defaulting on payments due to insolvency.” https://www.insurancenews.com.au/daily/trade-credit-claims-spike-points-to-growing-insolvency-risk

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Bail companies in California have conspired to keep premiums high, lawsuit alleges

With a historic law overhauling California’s cash bail system on hold, bail customers on Tuesday filed a class-action lawsuit against more than 20 surety companies and agents in the state, alleging they have conspired to keep premiums high for criminal defendants. The antitrust case, which the plaintiffs’ attorneys said could be the first of its kind in the country, alleges that the companies worked together since at least 2004 to fix prices and prevent competition in the market, discouraging bail agents from offering discounts or rebates in private meetings and messaging at industry conferences, and retaliating against those who refused. The lawsuit was filed by four public interest groups on behalf of people who, according to the complaint, paid maximum prices for bail bonds as they sought their or someone else’s release from jail and later struggled to pay the debt. They are requesting that a judge stop the sureties from engaging in alleged “cartel pricing” practices and collecting assets on debt, according to the complaint filed in Alameda County. They want the court to order the bail surety businesses, companies that underwrite bonds, to pay damages to alleged victims and correct all alleged misleading statements in print and online materials. “What makes this case particularly important is that the product being fixed is not a consumer good but someone’s freedom,” said attorney Dean Harvey, who is lead counsel on the case. “It is about whether a presumptively innocent person is able to go to their job or not, take care of their children or not.” Greg “Topo” Padilla, president of the Golden State Bail Agents Assn., one of the associations named in the lawsuit, said he had not seen the complaint and could not speak to its allegations. But, “we have fought for years to lower bail schedules, which would lower premiums,” he said. “We have been stopped at every one of these attempts by the Legislature.” Calls to other bail agents and associations named in the lawsuit were not immediately returned on Tuesday. The lawsuit is the latest volley against a bail industry locked in a fierce battle with California lawmakers and court officials determined to abolish a system that they say has run unchecked for years and preys on the most vulnerable. Gov. Jerry Brown last year signed a law that would prevent courts from using fixed money bail fees in releasing people from jail while their cases are pending, granting greater power to judges and county agencies to decide which defendants pose a risk to public safety. But the effort is now on hold until voters decide its fate in November 2020 — elections officials this month certified a statewide referendum backed by a coalition of bail industry associations. Bail companies, which can continue doing business until the election, are gearing up for a campaign fight against a law that could spell extinction for their industry in California. The state holds roughly a quarter of the $2-billion market nationwide and has 3,200 registered bail agents. Bail companies and sureties have faced civil cases in the past over allegations of malpractice and fraud, among other things. But attorneys in the suit filed Tuesday say it appears to be the first in the country that seeks to build wider conspiracy charges based on antitrust and consumer laws. Under the current pretrial system, judges must factor in a defendant’s ability to pay as they set bail according to lists of criminal offenses and fixed fees. If a defendant is unable to post the amount in advance, a nonrefundable fee — typically a premium of 10% or less of that amount — can be paid to a bail company to front the money. Like other insurance companies in the state, bail sureties submit their maximum premium rates to the California Department of Insurance for approval. In 1998, California voters approved a law that allowed insurers to reduce premium rates for consumers, and a state court ruling in February 2004 confirmed “rebating” was legal, allowing bail agents to charge less than those premium rates, the class-action lawsuit states. But lawyers for the bail customers allege sureties have kept that premium rate at the maximum of 10% for most criminal defendants by concealing their industry’s option to charge lower rates and refraining from offering competitive rebates. Since 2004, the complaint alleges, surety representatives have agreed not to compete over premium prices and have directed bail agents not to do so, using bail industry associations “as a conduit for enforcing their price-fixing cartel down to the bail agent level.” Through blog posts and private meetings, industry-sponsored training courses and conferences, the industry keeps agents in check, the lawsuit claims. The complaint cites a course offered by the Bail Resource Center and Career Academy that teaches “the right answer on the test: no rebates.” A defendant named Jerry Watson, vice president of AIA Surety, the country’s largest bail surety administrator, “has publicly denounced price-cutting as a cancer” on the group’s website, according to the complaint. “Furthermore, the cartel intimidates competitors to toe the line,” the lawsuit says. “When competitors attempt to compete by offering lower rates or rebating, cartel members brand them as ‘break[ing] the law,’ despite knowing that to be false,” it says. At the center of the case is Aladdin Bail Bonds, the largest agency in California and its surety. The lawsuit alleges that Aladdin misleads its customers by asserting on its website that its fees “are standard and nonnegotiable” as required by law. The plaintiffs’ attorneys say they began working on the case before California state lawmakers passed Senate Bill 10 to overhaul the cash bail system. Its fate has no bearing on their complaint moving forward, they argue, because even if the state’s money bail system is eliminated, the law does not assist residents who paid inflated premiums and does not prevent surety companies from continuing to collect on debt. The complaint could include thousands of class members — from October 2011 to October 2015 alone, it states, about

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legislation

Federal Court Clarifies When Idle Equipment Costs Are Recoverable Under the Miller Act [Colonial]

United States ex rel. Am. Civ. Constr., LLC v. Hirani Eng’g & Land Surveying, P.C., 2018 U.S. Dist. LEXIS 200829 (D.D.C. Nov 28, 2018). The case involved the construction of a levee wall on the National Mall in Washington, D.C. In September 2010, the Army Corps of Engineers awarded Hirani Engineering & Land Surveying, P.C. (“Hirani”) the prime contract for the project. Hirani’s surety was Colonial Surety Company (“Colonial”). Hirani subcontracted the majority of the work to American Civil Construction, LLC (“ACC”). Following a series of disputes and project delays, the Army Corps terminated Hirani. ACC then filed suit in the United States District Court for the District of Columbia seeking over $2 million in damages under the Miller Act as well as state law for breach of contract. After a bench trial, the court entered judgment in favor of ACC. As part of its claim, ACC sought damages for costs related to idle equipment at the project site. Although the claim was only a small part of ACC’s overall claim, the court’s approach was noteworthy. ACC asserted that all of the costs were recoverable under the Miller Act. Conversely, Hirani and Colonial argued that standby equipment expenses were per se unavailable under the Act. The court disagreed with both parties and held that, although the Miller Act permitted a contractor to recover for idle equipment, it could not do so in all instances. As part of its analysis, the court first referred to the original language of the Miller Act which permits a contractor who “furnish[es] labor or materials in carrying out work provided for in a contract” to recover damages. The court then distinguished between two scenarios involving idle equipment. In the first scenario, the court described a case in which a contractor brought a piece of equipment to the work site and used it over a period of weeks, but not every day. In the second scenario, the court described an instance in which a contractor brought the same piece of equipment to the site, but the equipment remained idle for 60 days before it was used. According to the court, under the first scenario, “the equipment reasonably can be treated as ‘furnished’ ‘in carrying out the work’ even on those days it is in non-use” and, therefore, the contractor would be permitted to recover those idle equipment costs under the Miller Act. However, the same would not hold true for the second scenario because, according to the court: If a contractor brings a piece of equipment to the job site and it sits unused for two months, absent some reasonable explanation for its non-use during such an extended period, the contractor cannot be said to have “furnished” the equipment “in carrying out work.” In light of this analysis, and upon reviewing a summary of standby costs sought by ACC, the court concluded that only around 28% of ACC’s standby costs fell into the category of regularly used equipment to justify their recovery under the Miller Act. https://www.jdsupra.com/legalnews/federal-court-clarifies-when-idle-39069/?

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sba logo

Government Shutdown Affected Contractors Relying on SBA Programs

In its fourth week, the government shutdown that started on December 21, 2018, has had a profound impact on the U.S. economy. Going down in history as the longest shutdown, it has paralyzed whole sectors because federal institutions are closed or are functioning at limited capacity. J.P. Morgan estimated that the losses account to $1.5 billion for every week of the standoff between President Trump and the Congress. As in other force majeure situations, small businesses feel the effects of the administrative blockage the most. For thousands of companies, the last few weeks have been tough due to financial losses and missed business opportunities. Among the numerous federal departments and agencies that have been affected by the shutdown, the Small Business Administration has been closed since December 22. This has strong negative effects for companies using its 7A Guaranteed Lending Program and 504 Loan Program, as well as its Surety Bond Program. The SBA typically approves around $500 million in loans per week. Businesses relying on these programs have not been able to benefit from them in the last month since federal employees at the SBA are furloughed. Since the close, the SBA is not processing loans. This has delayed more than $2 million in lending that was supposed to finance real estate deals, equipment purchases, and other development needs. The result for impacted businesses is a limbo in which they risk losing down payments and deposits. The effect is especially distressing for companies that sought SBA Express loans for immediate financing needs. Many of them have made initial payments for a commercial property and are now awaiting the SBA loan that was supposed to finance the purchase. As sellers are becoming impatient, companies are forced to look for other ways to cope with the situation. They have to either put on the line their payment or seek flexibility and understanding from the seller, which is not guaranteed. Some businesses have increased the deposits for their dreamed real estate with the hope to appease property owners and prolong the period in which they can wait for the SBA financing. For others, the most viable option has been to seek financing from other sources, as not to lose the opportunities and already made investments. As the Washington Post reports, the situation is especially tough for small business owners who were on the finishing line of buying property when the shutdown started. Such is the case of computer specialist Brooks Troxler who had to receive a $550,000 SBA loan for a real estate deal. If the delay continues, he may lose not only the possibility to have a new business location, but also a lot of money invested in fees, appraisals and other administrative costs. Construction businesses relying on the SBA Surety Bond Guarantee Program have also been heavily affected by the shutdown. Contractors often have to provide contract surety bonds when they bid on public and private projects. The bonding is typically required on federal contracts, as well as on many other public ones. However, for many new and small businesses, obtaining the necessary bonding is difficult or impossible because of financial issues or lack of required experience in the field. The Program helps contractors by guaranteeing for their bonding in front of surety providers. It supports contractors with guarantees on individual contracts of up to $6.5 million. This can be increased to $10 million in some cases. In recent weeks, contractors have not been able to obtain support from the SBA. As a result, they cannot get the required surety bonds, as sureties are reluctant to extend backing to applicants that pose a higher risk. This has left many budding construction companies out of the bidding on projects. The repercussions for small contractors are the most serious, since winning a contract can be decisive for their development. How has the government shutdown affected your small business? What steps have you taken to mitigate its effects? Please share your thoughts in the comments below. https://www.cpapracticeadvisor.com/news/12440873/government-shutdown-affected-contractors-relying-on-sba-programs

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Surety partially finances concrete contractor’s settlement [Liberty Mutual]

Navillus Settles Into Normal Business Life After One-Year Bankruptcy Trouble appears to be over between Navillus, one of New York City’s biggest contractors, and five building trades unions. Navillus sought bankruptcy protection 14 months ago after a federal judge ordered it to pay $76 million to union pension and benefit funds. The unions, with which the contractor had agreements, successfully sued the company in 2014. They claimed Navillus violated federal pension law, collective bargaining agreements and commitment to work union through two separate nonunion companies, one of which had ties to Navillus’ owner and president, Donal O’Sullivan. After the judge’s payment order, the unions attempted to freeze all Navillus’ bank accounts through restraining notices. Navillus, which performs much concrete construction as both prime contractor and subcontractor, steadfastly claims in a statement that it “never operated a non-union company and consistently disputes any allegations that they did.” The parties to both the civil lawsuit by the unions and the contractor’s bankruptcy used mediation to reach a settlement and vacate the judgement and decision against Navillus. So far, union officials have not commented publicly. One reason that unions may have agreed to take only $25 million—about one third of what a lower federal court had originally ordered Navillus to pay in 2017—might be explained by the words of a U.S. federal appeals court judge who vacated the order after Navillus’ appeal. “This will keep one of New York City’s largest construction contractors in business,” wrote Judge Colleen McMahon. ‘It will protect dozens of ongoing projects from disruption, preserve numerous union jobs and provide continuing benefit to the plaintiff funds, and all of Navillus’ stakeholders.” Navillus says it kept working on its projects, including two prominent Manhattan towers for which it was constructing concrete frames before emerging from Chapter 11 [of the federal bankruptcy code] last October. The uninterrupted effort “was a testament to the belief and trust that clients have in Navillus,” the company said. Since the settlement, Navillus has been adding steadily to its backlog. Bankruptcy made sense for the contractor considering the judgment “One of the advantages of Chapter 11,” the company said in a statement, ‘is that it offered additional remedies, all of which have their own merits, to resolve issues in the field that wouldn’t normally have been available to Navillus.” O’Sullivan’s main concern through the turmoil was the company’s employees and hundreds of union workers, the company’s statement said. Navillus also indicated it was proud to continue in business as one of New York City’s biggest union employers—no small thing at a time when building trades unions are fighting to maintain their stature in the city. The regional building trades council, except for the carpenters’ union, is battling one of the city’s biggest developers, The Related Cos., over the next phase of its Hudson Yards project. Related wants to bargain with the unions on a one-on-one basis. And several unions in recent years have adopted what is essentially is a tiered wage system—another concession to their eroding bargaining power and market share. Quick Financing in Bankruptcy Loans to operate are often critical if a company is to survive bankruptcy. They must be arranged quickly. “Showing that sophisticated lenders have examined the debtor’s finances and believe in the debtor’s ability to repay its post-petition obligations … goes a long way” to quell worries about the debtor’s ability to continue, wrote attorney Paul H. Zumbro in a recent book about such lending But that is not exactly what played out, according to Navillus. The company said it was almost able to finance all of its own operations while in bankruptcy. Although the contractor’s surety, Liberty Mutual, provided a $20-million debtor-in-possession financial facility at a 3 percent interest rate, with no default rate and no fees, none of the DIP loan was used. After the DIP loan ended and Navillus emerged from bankruptcy, Liberty Mutual partially financed the settlement. Only a small number of Navillus creditors were forced to take reduced payments, the company also stated. As with other bankruptcies and litigation, the per-hour legal and consulting expenses needed to go through the processes were high, court records show. And Navillus is back in federal court, this time as a plaintiff seeking in new lawsuits several million dollars from several of the city’s biggest general contractors and New York City’s Dept. of Environmental Protection. The contractor claims in some of the lawsuits that the prime contractors and DEP are improperly withholding retained funds held back when it filed for bankruptcy protection. Other lawsuits began before the bankruptcy filing. Founded in 1987 as Navillus Tile, the company branched out from tile and masonry to concrete and has been a force in the city. At the time of the bankruptcy, the company had 640 union employees and 65 management-level staff. According to Navillus’ attorney’s statements to the bankruptcy judge, the company had an average annual gross income of $180 million, but 2016 gross income of $240 million. Its current cash and marketable securities at the time equaled $20.8 million, $12.2 million of which was cash. Its receivables were $55.3 million and it owed $13 million. Portions and details of this story were corrected Jan. 11 to show that no financing from surety Liberty Mutual is currently needed by Navillus and that only a small amount was used after Navillus’ bankruptcy. Corrections also clarified other aspects of the bankruptcy and civil lawsuit claim and settlement and the financial details about Navillus prior to the bankruptcy. https://www.enr.com/articles/46199-navillus-settles-into-normal-business-life-after-one-year-bankruptcy

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Automation to transform commercial insurance: survey

Automation is set to transform commercial insurance lines with investments in this field expected to increase, particularly affecting the property business, according to a survey including 300 commercial insurers conducted by Intelligent Insurer. https://www.intelligentinsurer.com/news/automation-to-transform-commercial-insurance-survey-17437

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Ten Minutes with Travelers’ Gregg Lyon

The strategy chief for surety construction services talks about having the right people to prevent failures ENR recently exchanged email questions and answers with Gregg Lyon, chief strategy officer for Bond Construction Services, Strategic Initiatives and Product Management at Travelers. A graduate of Babson College, he has worked 28 years for the company in various underwriting and surety related posts. With a volatile stock market, interest rates slowly creeping higher and talk of an inevitable economic slowdown, the discussion revolved around contractor failure. Lyon talked about whether there’s anything new that can sink a construction contractor and what the best wisdom is for staying out of trouble. The questions came from ENR Deputy Editor Richard Korman. ENR What aspects of the economy or financial market performance are of most concern for Travelers’ surety and contractor clients? Lyon No surprise, but the biggest concern for our clients remains people. There continue to be headwinds to get enough of the right, qualified people to meet future business plans. The loss of people to other industries, the very low overall unemployment rate, and the lack of enough new people coming into construction will continue to present some significant business challenges to construction company owners. The issue second to people is public spending. The current environment is inconsistent in how it’s impacting our clients, with our heavy civil clients feeling the hurt much more than our general contractors. The private sector spending has been elevated the past few years, which has been good for our GC’s, but the lack of progress in overall public spending has made it hard for many firms, especially heavy/civil, to plan appropriately for their business. What are some of the most common reasons behind contractor failure / construction surety claims? We certainly are seeing common threads. We’ve been doing an annual review internally since 2009 where we look at our top 10 losses and do a deep dive to see what caused these clients to fail or default. Over those nine years, factors that have been big contributors to contractor failure include a problem on a project that ends up being too big, internal cost system failures, overextension and excessive debt. Tell us more about the problems and how they develop. The biggest thing we’re seeing is that one project or one bad decision can take a company down. More often than not, it’s a company taking on a job that’s a lot bigger than they’ve ever taken on before, working for an owner they haven’t worked for before or doing types of work they haven’t done much of before. Taking on a job that’s too far away from their area of expertise or doing a bigger job in a different location for a different owner can be a recipe for disaster. We all know that contractors are optimistic by nature. They know they can figure it out, but one thing we’re finding is that sometimes big problems can become too big to resolve. The best protection would be a healthy balance sheet or lots of cash? A good balance sheet certainly helps weather a storm, but even good balance sheets can get blown up with the wrong job. It’s become clear that every decision a company makes can have a material impact on its future. What’s the blueprint then for staying out of trouble? Is there one? A lot of companies do things really well, such as having good processes in place: who signs off on the decision to go after a job, who reviews the contracts, who makes the go/no-go decision. If you’re doing something a little bigger or different, you want to dig deeper, review the contract terms, look at the cash flow on the job, ensure the margin on the job fits the level of risk, and make sure that the risk-reward is in line with the overall risk appetite of the company. I think you’re talking about overextension in a lot of the mistakes you mentioned, right? Yes, overextension, especially when you’re maxing out your organization. That can mean from a cash flow standpoint or from a personnel standpoint. One thing I would tell contractors is to constantly assess their organization and know its strengths and weaknesses, know what its capacity is – and this is not a one-and-done process, it should be done on a frequent basis. That assessment should always start with people. Do you have the right people in the right places to handle the work you want to take on? Do they have the skill sets needed to carry that work out successfully? If you have the right people in place, coupled with the financial wherewithal to support your future needs, then the chances for success improve tremendously. What steps can companies take to improve their chances for long-term success? Thoughtful strategic planning is a good place to start. It’s not going to happen by chance. Try to come up with a good, solid strategic plan at least once a year, and then revisit that plan multiple times throughout the year. The key is to not put it in a bottom drawer somewhere and forget about it for a year or two. Rather, it should be used as a working document. Sureties and bond producers get very involved with their contractor clients and their businesses. You’ve told me that Travelers reviews bids and contracts, does accounting reviews and offers consultations and conferences. That’s a lot. Does every bonded contractor of Travelers get them or must they be purchased as add-ons? That is a lot. Our contractor clients have high expectations as to what they get out of their surety relationship, as they should. As a surety, we have a unique vantage point into the inner workings of thousands of construction firms, and we believe we can help our contractors be better at what they do every day if we pass on that knowledge. Ultimately, this benefits the client, our agent partners, and ourselves. This is why we spend so

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How subrogated claim leads to landmark win for Guarantee

A $1.9-million surety bond claim has resulted in a landmark court decision in favour of The Guarantee Company of North America. A-1 Asphalt Maintenance Ltd. went bankrupt in 2014. At that time it was a contractor on four road-paving projects in Ontario. As a result of A-1 Asphalt’s bankruptcy, the Guarantee Company paid out nearly $1.9 million on surety bond claims. Some property and casualty insurers – the Guarantee, among them – write labour and material payment bonds. Those are intended to compensate subcontractors and suppliers if a general contractor fails to pay them what it owes. In 2014, A-1 had three projects with the City of Hamilton and another with the Town of Halton Hills. Those municipalities owed A-1 more than $675,000. They handed that money over to a court-appointed receiver. Normally when a company goes bankrupt, a receiver is appointed to take the company’s assets and pay it out to creditors. A-1’s creditors include the Royal Bank of Canada. Meanwhile, The Guarantee is subrogating the claim it paid out on the bonds. This means, in essence, that the Guarantee wants to recover as much of the $1.9 million as it can from A-1’s assets. The federal Bankruptcy and Insolvency Act stipulates that the property of a bankrupt company cannot be divided among creditors if that property is held in trust for another person. The $675,000 paid by Hamilton and Halton Hills should be considered a trust, The Guarantee argued in court. Royal Bank essentially wanted the $675,000 to be available to be distributed to all of A-1’s creditors and not set aside specifically for construction workers and subcontractors on the paving projects. This would mean the Guarantee could get some of that money, but so could other creditors, on a pro-rated basis. Initially The Guarantee lost. In Royal Bank of Canada v. A-1 Asphalt Maintenance Ltd., an Ontario Superior Court of Justice ruling released in January, 2018, Judge Barbara Conway ruled in favour of RBC. Conway was not convinced that the money paid by the municipalities to the receiver was in fact a trust and therefore excluded from A-1’s property to be distributed to creditors under bankruptcy proceedings. Her ruling was overturned in The Guarantee Company of Canada v. Royal Bank of Canada, a unanimous ruling by five judges released Jan. 14, 2019. Ontario’s Construction Lien Act stipulates that money owed to construction contractors and subcontractors constitute “a trust fund for the benefit of the subcontractors and other persons who have supplied services or materials” and are owed money. That law has the effect of altering priorities (of which creditors are paid first) in a bankruptcy proceeding, RBC argued. But the Court of Appeal for Ontario suggested that the Construction Lien Act is not an attempt by the Ontario to indirectly re-order priorities in a bankruptcy proceeding. A trust under the Construction Lien Act “must be seen as an integral part of the scheme of holdbacks, liens and trusts, designed to protect the rights and interests of those engaged in the construction industry and to avoid the unjust enrichment of those higher up the construction pyramid. That purpose exists outside the bankruptcy context,” Judge Robert Sharpe of the Court of Appeal for Ontario wrote in The Guarantee. https://www.canadianunderwriter.ca/insurance/subrogation-of-surety-claim-leads-to-court-battle-1004150931/

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