Frank J. Marsico
Partner | Chicago
Frank Marsico joined Watt, Tieder, Hoffar & Fitzgerald in 2013 in the firm’s newly-opened Chicago office. He concentrates his practice in construction, fidelity and surety law, providing a full range of transactional and litigation services to his clients.
In the areas of construction, surety and mechanics lien law, Frank represents owners, general contractors, subcontractors, design professionals, insurance companies and other corporate entities in litigation and transactional matters. His representation of these clients includes a wide variety of actions, including those involving breach of contract, indemnity, performance/payment bond claims, commercial bond claims, lien foreclosures, interpleader actions, conversion/imposition of constructive trust, banking law, UCC law, and bankruptcy. He also has extensive experience in FELA defense litigation, complex class action litigation, civil rights defense, insurance coverage, commercial and tort litigation (including professional negligence).
Frank also represents insurance companies with respect to claims made against financial institution bonds and commercial crime policies. He was an author and presenter at the November 7-8, 2018 American Bar Association’s Tort, Trial & Insurance Practice Section, Fidelity & Surety Law Committee Meeting in Philadelphia, PA “An Analysis of Fidelity Claims for the Modern World,” topic “2018 Fidelity Law Update.”
Frank actively participates in state and federal court. His litigation experience in criminal and civil cases includes bench and jury trials, arbitration hearings, hundreds of fact witness and expert depositions, multiple successful dispositive motions avoiding the necessity for trial and all other aspects of litigation from the initial pleadings stage through post-judgment proceedings and appeals.
- Developers Surety and Indemnity Company v. Archer Western Contractors, LLC, 6:16-cv-1875-Orl-40KRS, 2018 WL 2100032 (M.D. Fla. May 7, 2018). Obtained summary judgment in favor of Archer Western Contractors, LLC (“AWC”) against Developers Surety and Indemnity Company (“DSIC”), and defeated DSIC’s simultaneously-filed cross-motion for summary judgment against AWC. AWC was the general contractor on the Orlando SunRail – Central Florida Rail Transit Station Finishes Project for project owner Florida Department of Transportation (“FDOT”). AWC subcontracted the station landscaping scope of work to Prince Land Services, Inc. (“Prince”) which was bonded by DSIC. AWC defaulted Prince and made a claim under the performance bond (as bond obligee) issued by DSIC. AWC contended that DSIC failed to take proper action within the time constraints set forth in the performance bond, hired another landscaping subcontractor to complete and correct Prince’s scope of work, and sought its completion costs from DSIC. DSIC commenced the action by filing a declaratory judgment action against AWC, arguing, inter alia, that: (1) AWC did not provide DSIC with sufficient information/documentation to support its performance bond claim; (2) the 15-day period under the bond for DSIC to choose one of its performance options was tolled as a result of AWC’s alleged actions; and (3) DSIC, after learning that AWC unilaterally hired a replacement landscaping subcontractor after the 15-day period expired, was discharged of any further duties to AWC under the bond. The Court agreed with AWC in rejecting DSIC’s aforementioned arguments.
- Developers Surety & Indemnity Company v. Archer Western Contractors, LLC, 18-13271, 2020 WL 1898812 (11th Cir. Apr. 17, 2020). Fully briefed and argued before the United States Court of Appeals for the Eleventh Circuit on January 31, 2020, on behalf of Appellee Archer Western Contractors, LLC (“AWC”), a Motion to Dismiss the appeal of Appellant Prince Land Services, Inc. (“Prince”), whereby Prince appealed the underlying District Court’s denial of several motions by Prince to intervene in the underlying action between AWC and Developers Surety and Indemnity Company (“DSIC”), No. 6:16-cv-1875-Orl-40KRS, filed in the United States District Court for the Middle District of Florida, Orlando Division (see above). Successfully argued to the Eleventh Circuit that Prince’s appeal was untimely for multiple reasons, leading to the dismissal of Prince’s appeal on April 17, 2020.
- Travelers Cas. and Surety of America v. John P. Paderta and Fifth Third Bank, 315 F.Supp.3d 1096 (N.D. Ill. 2018). Obtained summary judgment in favor of Travelers against Fifth Third Bank as to Travelers’ priority right, as surety, to bonded project funds deposited into principal/contractor’s (Krahl Associates, Inc. (“Krahl”)) account at Fifth Third Bank for multiple projects located in Illinois and Colorado. Defeated Fifth Third Bank’s simultaneously-filed cross-motion for summary judgment, whereby Fifth Third Bank argued, inter alia, that it had priority to bonded project funds as a “holder in due course” of bonded contractor’s deposited funds under the Uniform Commercial Code. Court agreed with Travelers’ argument that Fifth Third Bank was not a “holder” of any negotiable instruments under the UCC, and therefore Fifth Third Bank could not be a “holder in due course” as a matter of law.
- Travelers Cas. and Surety of America v. John P. Paderta and Fifth Third Bank, No. 10-C-406, 2013 WL 3388739 (N.D. Ill. July 8, 2013). Obtained summary judgment in favor of Travelers against Fifth Third Bank as to Travelers’ priority right, as surety, to non-bonded project funds held by two separate project owners, Northwestern Memorial Hospital (“NMH”) and Rush University Medical Center (“RUMC”), who engaged Travelers’ principal, Krahl Associates, Inc. (“Krahl”) to perform various bonded and non-bonded projects for each owner. The Court agreed with Travelers’ contention that it was equitably subrogated to NMH’s and RUMC’s rights, as project owners and bond obligees, to exercise their respective rights to set off losses on various bonded projects with remaining funds otherwise owing to Krahl from non-bonded projects, notwithstanding that Fifth Third had a perfected UCC security interest in all of Krahl’s bonded receivables, and notwithstanding that Travelers was not a secured creditor of Krahl. For these same reasons, the Court denied Fifth Third’s cross-motion for summary judgment against Travelers.
- The Cincinnati Insurance Company v. Demmy Sand and Gravel, LLC, 13 CV 1008 (Common Pleas Court of Clark County, Ohio, Civil Division). May 9, 2015 Order granting Plaintiff, The Cincinnati Insurance Company’s (“CIC”) Motion for Summary Judgment against its bond principal, Demmy Sand and Gravel, LLC and various individual indemnitors. Defendants disputed project owners’ defaults on multiple projects and disputed extent of CIC’s damages. Prior Order of August 14, 2014 granted CIC’s Motion to Dismiss Defendants’ cause of action for bad faith against CIC.
- Jimmy Harvard v. Northeast Illinois Regional Commuter Railroad Corporation, d/b/a Metra, 2011 IL App (1st) 103033-U, October 12, 2011. – Appeal from the Circuit Court of Cook County, No. 08 L 4945. The Appellate Court of Illinois, First Judicial District, affirmed the Circuit Court of Cook County’s granting of summary judgment in favor of Metra and against plaintiff on both counts of the complaint, and denying plaintiff’s cross-motion for partial summary judgment against Metra, based upon alleged violations of the Federal Passenger Equipment Safety Standards promulgated in 49 C.F.R. Section 238.1 et. seq.
- Successful trial and arbitration hearing experience. Also tried to verdict 14 felony cases with Cook County State’s Attorney’s Office 1994-1995 with Illinois Supreme Court Rule 711 license (13 of which resulted in guilty verdicts).
- Leading Lawyers Network – Peer Selected – 2011-2020
- American Bar Association
- Member of the Fidelity and Surety Law Committee of the Tort Trial and Insurance Practice Section (TIPS)
- Chicago Building Congress (CBC)
Frank was an author and presenter at the November 7-8, 2018 American Bar Association’s Tort, Trial & Insurance Practice Section, Fidelity & Surety Law Committee Meeting in Philadelphia, PA “An Analysis of Fidelity Claims for the Modern World,” topic “2018 Fidelity Law Update.”
Frank has also presented a variety of legal topics on fidelity and surety law, construction law and mechanics lien law, including presentations certified for Continuing Legal Education (CLE) credit.
Areas of Practice
- DePaul University College of Law, J.D., 1995
- Moot Court Society National Appellate Team
- Supreme Court of Illinois Rule 711 License
- Marquette University, B.A., 1992
- U.S. District Court for the Northern District of Illinois
- U.S. District Court for the Northern District of Indiana
- U.S. District Court for the Eastern District of Michigan
- U.S. District Court for the Eastern District of Wisconsin