USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1011
WESTCOTT CONSTRUCTION CORP.,
Plaintiff, Appellant,
v.
FIREMEN'S FUND OF NEW JERSEY,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Oakes,*, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________

Peter Lawson
Kennedy with
whom Adler
Pollock &
Shee
_______________________
_________________________
Incorporated was on brief for appellant.
____________
Shelia High King with whom Bert J. Capone, Michael P. Duffy
________________
_______________ ________________
Peabody & Arnold were on brief for appellee.
________________
____________________
June 25, 1993
____________________
_____________________
*Of the Second Circuit, sitting by designation.

OAKES,
Construction Co.
United

States

summary

("Westcott") appeals from an

District Court

Island, Francis
for

Senior
Circuit
Judge.
_________________________

for

judgment

and

granting

sought to enforce the

order of the

District of

J. Boyle, Judge, denying

_____

Insurance ("Firemen's") cross-motion

Westcott

the

Westcott

Rhode

Westcott's motion

defendant

Firemen's

for summary

judgment.

terms of a performance bond

executed by Firemen's on behalf of Westcott's subcontractor,

Crouse Combustion
named

as

Systems ("Crouse"), in which Westcott was

obligee.

In particular,

Westcott sought

to be

indemnified for payments made to the City of Cranston, Rhode

Island ("Cranston"), for

damages suffered by the

town as a

result of Crouse's delays.

Westcott,

Crouse

and

Cranston

previously

had

participated in lengthy arbitration proceedings in which the

arbitrators

had

established

damages

owed

by

Crouse

to

Westcott and by Westcott to Cranston, as well as by Cranston

to Westcott.
asked

to

therefore,

Westcott argues that the arbitrators were not

consider Crouse's

duty

this question is

award.

After

unsucessfully sought
Rhode
failed

Island state

that

that,

courts to decide.

the arbitrators to reconsider

request

to vacate or
courts

indemnify and

open to the

Westcott initially petitioned

the

to

was

denied,

Westcott

modify the award

on the

ground

that the

in the
award

to consider Westcott's indemnification claim against

-22

Crouse.

Westcott then

sought

relief against

Firemen's,

Crouse's

surety

on the

performance

States District Court for the

after losing there,

in

in the

United

District of Rhode Island, and

now seeks

find Westcott's appeal

bond,

redress in this

court.

clearly foreclosed by res

fact so clearly that we award

We

judicata,

double costs on behalf of

Firemen's.

BACKGROUND
__________
In
bond

November, 1981, Firemen's issued a performance

to subcontractor

contractor,

as

Crouse, with

obligee, for

Westcott, the

a wastewater

general

treatment plant

being built for the city of Cranston, Rhode Island.

dispute

arose

over

Cranston submitted
April 25,
award.
delay

the

After finding
damages, the

Crouse responsible

arbitrators

$117,600

from Cranston

Westcott

filed a

to

On

findings and

for much

awarded Cranston

(for

delays caused
May 10,

of the
$314,000

by the

-33

for

the

the

it allegedly failed

make good on its performance

Westcott

city).

1989, requesting

reconsider the award as

indemnify

and

Westcott $384,000 from Crouse and

motion on

to require Crouse to

Crouse

arbitration.

arbitrators issued their

from Westcott and awarded

thus

Westcott,

their damage claims to

1989, the

arbitrators to

project,

When a

$314,000

bond and
paid

to

Cranston.

The arbitrators

denied

Westcott's motion

for

reconsideration and modification of their decision.

Westcott then sought to modify or vacate the award
in

state court, arguing that

through the
Court's

$314,000 in

denial of

Court,

of Cranston, 586 A.2d

____________

additional

that

damages to

Westcott's

Rhode Island Supreme

concluded

the award had

damages to

Crouse.

motion was

the

The Superior

affirmed by

the

Westcott Constr. Corp. v. City

______________________________

542 (R.I. 1991)

Westcott

failed to pass

had

(per curiam), which

submitted

arbitrators

its

claims

for

and therefore

the

claim was not open to the court to decide.

Westcott
Crouse's

then brought

suit against

Firemen's as

surety in the District of Rhode Island.

was dismissed.

The claim

Westcott now appeals.

DISCUSSION
__________
Westcott,

on this

appeal, requests

indemnification damages against Firemen's,

us to

award

maintaining that

the question
arbitrators

of indemnication
or by

the state

was never considered

courts.

The

by the

district court

ruled against Westcott, finding this claim foreclosed by res

judicata.

As

the

abundantly clear to
has

district

stated,

me that the Rhode

already considered

agree with the

court

and decided

"[i]t

seems

Island Supreme Court

the controversy."

district court's assessment.

We

That the Rhode

-44

Island Supreme Court considered this issue is clear from the

language of

the opinion.

As that

court noted,

"Westcott

argues that the $1,000-per-day award to the city should have

been

'passed through'

arbitrators' award

is

Corp., 586 A.2d at 543.

_____

to Crouse
imperfect."

and that,

therefore, the

Westcott Construction
______________________

We fail to see how Westcott's state

court

claim differs from its federal one.

clear

that this issue

well.

Westcott itself, in its motion to the arbitrators for

was submitted to

Indeed, it seems
the arbitrators as

reconsideration and modification of their decision, admitted

that

"[t]he

parties

September

5,

Westcott,

Crouse

decided."
that the

1986

agreed
that

and

at

all

the

were

to

initial

matters

other

As Firemen's notes,
arbitrators

the

hearing

between

on

Cranston,

subcontractors would

be

this statement demonstrates

consider

Westcott's

claim

against Crouse.
Res Judicata bars Westcott's claim.
Coleman, 51 A.2d 81,
_______

85 (1947).

"[A] state

See Coates v.
___ _________
court judgment

commands the same res judicata effects in federal court that

it would
Wright,

have in the court that entered it."

Arthur

R.

Miller

Practice and Procedure

______________________
v. State of R.I., 760
_________________
Island law),

&

Edward

H.

18 Charles A.

Cooper,

4469, at 659-60 (1981).

F.2d 359 (1st

cert. denied, 474

_____ ______

Circuit explained that res

Federal
_______

In Griffin
_______

Cir.) (applying Rhode

U.S. 845 (1985),

the First

judicata operates as an absolute

-55

bar

to the relitigation of the same cause of action between

parties
rendered

(or

their

privies)

and

that

prior

judgment

on the merits is conclusive not only to the issues

which were determined but as to all matters which might have

been determined as well.

Id. at
___

360; see also Corrado v.

________ ___________

Providence Redevelopment Agency, 320 A.2d 331, 332 (1973).

_______________________________
All the requirements for applying res judicata are
met

in this case.

that the

As in Griffin,
_______

'causes of

action' in

the appellant "contends

Rhode

courts differed, and thus argues that

bar her federal court action."
Griffin, "[a]n analysis of
_______
the

prior state proceedings

are essentially the

same."

Island and

federal

res judicata does not

760 F.2d at 360.

And, as in

the cause of action here

clearly establishes
Id. at
___

361.

The

and in

that both

federal case

involves the same subject matter and the same parties as did
the state
arbitrators

case,

and

contests the

did

not

consider

same

point:

Westcott's

that

the

indemnity claim

against Crouse.
Firemen's, as surety, is only liable to the extent
its

principal, Crouse, is

liable.

See
___

Rhode Island Hosp.

__________________

Trust Nat'l Bank v. Ohio Cas. Ins. Co., 789 F.2d 74, 77-79
________________________________________
(1st

Cir. 1986).

from the

Firemen's benefits

application of res

judicata.

just as

Crouse does

Id. at 77.

Thus,

___
Firemen's, as surety for Crouse, is not legally bound to pay
the $314,000 Westcott seeks.
-66

This
injustice.

application

None of

the doctrine of

of

res

the grounds justifying

Arthur

effects

R.

Miller

Practice and Procedure

______________________

&

no

departure from

res judicata are present in this case.

Restatement (Second) of Judgments

Wright,

judicata

See
___

20 (1982); 18 Charles A.

Edward

H.

Cooper,

Federal
_______

4435-4447 (1981) (earlier judgment

entered without jurisdiction; improper venue; non-joinder or

misjoinder

of

parties;

prematurity;

failure

to

satisfy

condition precedent; and dismissal without prejudice).

After examining the history of this litigation and
Westcott's repeated presentation of
it appropriate to assess a
against

the same issue, we find

monetary penalty of double costs

Westcott for a frivolous

appeal.

Fed.

R. App. P.

38.

Rule

38 provides that "[i]f

determine that

an appeal is

damages and single

this

Circuit

Charters, Inc., 763

_______________
appeal

is

in

costs to the

appellee."

F.2d 468,
the

471 (1st Cir.

result is

are 'wholly without merit.'"

NLRB v. Catalina Yachts,

_______________________
(citations

omitted)).

penalty for
deterred
appeals

may award

to

and, second,

As

1985), "[a]n

obvious,

There are two

ease the
in order

or the

Id. at 472 (quoting

___

679 F.2d 180, 182 (9th

frivolous appeals.

in order

just

Natasha, Inc. v. Evita Marine

_________________________________

frivolous when

arguments

appeals shall

frivolous, it

or double

stated

a court of

Cir. 1982)

reasons to

assess a

First, such suits

burden

on the

to protect

must be

courts

of

against "strike

-77

suits"

or

appeals brought

Natasha Inc., 763 F.2d

____________

to delay

paying damages.

See
___

at 471-72 (discussing policy reasons

for imposition of penalties by the court); cf. Bankers Trust

___ _____________
Co. v. Publicker Indus., Inc., 641 F.2d 1361 (2d Cir. 1981)
______________________________
(awarding

double costs

and up

to $10,000

damages against

client and counsel for frivolous appeal).

Westcott
appeals, requiring
different fora.

has

engaged

in

repeated

Firemen's to litigate the

frivolous

same claim in

Westcott's attempt to distinguish its state

court claims from those brought in the federal courts has no

merit

as res

light

of

this

judicata clearly
determination,

foreclosed
we award

its claim.
double

costs

In
to

Firemen's.

CONCLUSION
__________
We affirm
judgment

the district

to Firemen's on

court's grant of

the grounds

award double costs.

-88

of res

summary

judicata and