The plaintiff subcontractor moved for summary judgment against the defendant surety on a labour and materials payment bond after the general contractor defaulted and failed to pay the plaintiff's invoices.
The surety argued that the plaintiff had fully mitigated its damages by entering into a replacement subcontract with the new general contractor for a higher amount than the remaining value of the original subcontract.
The court held that the plaintiff's opportunity to profit from the replacement subcontract was separate from and collateral to the general contractor's failure to pay the invoices.
The motion for summary judgment was granted.
