Seguros Del Estado, S.A. v. Scientific Games, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF
APPEALS
No. 99-14166 ELEVENTH CIRCUIT
AUGUST 20, 2001
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00968-CV-CAM-1

SEGUROS DEL ESTADO, S.A.,

Plaintiff-Appellee,

versus

SCIENTIFIC GAMES, INC.,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 20, 2001)

Before BLACK, FAY, and COX, Circuit Judges.

BLACK, Circuit Judge:
 Appellant Scientific Games, Inc., appeals the district court’s denial of its

motion to dismiss, wherein Appellant asserted the applicable limitations period

expired and the doctrine of lis alibi pendens applied. Appellant also appeals the

district court’s grant of summary judgment to Appellee Seguros del Estado, S.A.

The district court effectively determined Appellant was in breach of an

indemnification agreement because Appellant did not reimburse Appellee for its

payment of $2.4 million in accordance with an obligation on a bond. Finally,

Appellant appeals an adverse judgment of approximately $7 million. This

judgment is comprised of a principal amount of $2.4 million and pre-judgment

interest at an annual rate of 38.76%.

This case involves three agreements: (1) a contract between Appellant and

Empresa Colombiana de Recursos Para la Salud, S.A. (Ecosalud), a Colombian

governmental entity, under which Appellant created and managed a national

instant lottery in Colombia (Lottery Contract); (2) a bond which was required

under the Lottery Contract, taken out by Appellant and payable by Appellee to

Ecosalud (Bond);1 and (3) an indemnification agreement which required Appellant

to reimburse Appellee for sums paid to Ecosalud and for any interest paid on such

1
While this document is entitled “Bond,” the terminology used in the documents at issue
in this case is sometimes characteristic of language used in the United States where insurance
policies are concerned and is sometimes characteristic of the language used where surety bonds
are concerned. We note this only to explain our use of this language.

2
sums (Indemnification Agreement). On appeal, Appellant raises four arguments:

(1) in light of pending litigation in Colombia, this case should be dismissed under

principles of international comity and the lis alibi pendens doctrine; (2)

alternatively, this case should be dismissed under Colombia’s 2-year statute of

limitations governing insurance disputes; (3) the entry of summary judgment for

Appellee should be reversed due to factual issues regarding whether the Bond’s

effective date was extended, whether the Indemnification Agreement’s term

expired, whether Appellee made a valid payment under the Bond, and whether

Appellee’s settlement with Ecosalud was reasonable; and (4) the award of pre-

judgment of interest of 38.76% per annum should be vacated in favor of either an

interest amount based on Colombian pesos converted to U.S. dollars or a

requirement that Appellee provide proof of Colombian bank interest paid on U.S.

dollar transactions.

We affirm the denial of the motion to dismiss, the grant of summary

judgment, and the $2.4 million principal judgment, but we vacate the portions of

the order and the judgment related to the pre-judgment interest payment. We

remand with instructions to determine the interest rate that Colombian banks would

have applied to U.S. dollar deposits on November 1, 1994, and to recalculate the

interest due.

3
 I. BACKGROUND2

On March 12, 1992, Ecosalud entered the Lottery Contract with (1)

Appellant, (2) PKI Associates, Inc., a New York corporation, and (3) Daibutsu,

Inc., a Panamanian corporation (collectively, Contractors). The Contractors

formed a Colombian operating company, Wintech de Colombia, S.A. (Wintech), to

run the lottery and thereafter assigned the Lottery Contract to Wintech. Clause 41

of the Lottery Contract required the Contractors to obtain a bond from a

Colombian insurance company in the amount of $4 million or its equivalent in

Colombian pesos. This bond was to guarantee the Contractors’ performance of

their obligations under the Lottery Contract, including the payment of any

penalties. Appellee issued to Appellant3 the Bond, whose initial term was from

March 12, 1992, to March 12, 1993. As partial consideration for the Bond,

Appellant executed the Indemnification Agreement with Appellee. This

Agreement required Appellant to “immediately reimburse” Appellee for any sums

paid to Ecosalud under the terms of the Bond and to pay interest to Appellee on

these sums “at the current banking interest rate in effect in Colombia.” An

2
This Part is drawn from the district court’s unpublished opinion. See Seguros del
Estado, S.A. v. Scientific Games, Inc., No. 1:98-CV-968-CAM (N.D. Ga. Sept. 28, 1999) (order
denying motion to dismiss and granting summary judgment motion).
3
While the initial policy lists only Appellant as the contractor, the policy amendments
list Appellant, PKI Associates, and Daibutsu as contractors.

4
amendment to the Bond, dated May 15, 1992, provided for the automatic renewal

of the policy at the end of each period until one year after the expiration of the

Lottery Contract. Another amendment, dated March 2, 1993, extended the Bond’s

term of effectiveness through March 12, 1994.

On July 1, 1993, Ecosalud issued a Declaration of Caducity, Administrative

Resolution No. 246 (the Declaration).4 In this Declaration, Ecosalud terminated

the Lottery Contract based on a determination that the Contractors breached the

Contract.5 Furthermore, Ecosalud found the Contractors and Wintech jointly and

severally liable and proclaimed Ecosalud was owed in excess of $4 million under

the terms of the Lottery Contract. Finally, Ecosalud stated in the Declaration that

Appellee was jointly and severally liable for $4 million pursuant to the Bond. The

Bond provides that “[a] casualty shall be deemed to have occurred[,] . . . in the

event of breach of the contract, when the Administrative Resolution that declared

the caducity of the contract or the breach thereof for reasons attributable to the

contractor is final and binding . . . .” The Bond obligates Appellee, under these

4
According to Dr. Andrew Abela-Maldonado, an expert witness for Appellant, declaring
caducity is a unilateral “exercise of governmental powers reserved to Ecosalud as a
governmental entity” under Colombian law.
5
According to Dr. Abela, a witness for Appellant, see supra note 3, Ecosalud made this
determination based in part on Wintech's failure "to deliver on its promise of monopoly status for
[the instant lottery]," and, therefore, to sell the projected number of lottery tickets. Dr. Jorge
Mora Sanchez, a witness for Appellee, testified only that Ecosalud "declared the termination of
[the Lottery Contract] for causes imputable to [Appellant]."

5
circumstances, to pay Ecosalud within a month following a request for payment.

Appellee received notice of the Declaration on July 7, 1993, and provided

Appellant with written notice on July 12, 1993.

Pursuant to the request of Appellant and Appellee that it reconsider the

Declaration, Ecosalud confirmed the Declaration by issuing Administrative

Resolution No. 493 on October 15, 1993.6 On March 15, 1994, Appellant

challenged the Declaration and Resolution No. 493 in a Colombian administrative

court and sought temporary suspension of the Declaration during the appeal. In

May 1994, the administrative court denied the request for temporary suspension.

The appeal remains pending.

Following negotiations, Appellee reached a settlement with Ecosalud on

September 29, 1994. The settlement obligated Appellee to pay Ecosalud

$2.4 million, in lieu of the contractually mandated sum of $4 million. On

November 1, 1994, Appellee paid Ecosalud $2.4 million. The next day, Appellee

notified Appellant of this payment and demanded reimbursement pursuant to the

6
There seems to be an inconsequential discrepancy in the record, as Appellant believes
Ecosalud issued Resolution No. 493 on October 3, 1993.

6
Indemnification Agreement.7 Appellant failed to reimburse Appellee, thereby

giving rise to this litigation.

On April 2, 1998, Appellee filed suit in United States District Court,

Northern District of Georgia, seeking to recover from Appellant for breach of

contract and unjust enrichment. On May 7, 1998, Appellee filed a motion for

summary judgment based on its breach of contract claim. Appellee sought a

$2.4 million reimbursement plus pre-judgment interest on that amount at the rate

specified in the Indemnification Agreement. On May 12, 1998, Appellant filed a

motion to dismiss based on the statute of limitations or, in the alternative, based on

the legal doctrines of lis alibi pendens and forum non conveniens.8

In its order dated September 28, 1999, the district court denied Appellant’s

motion to dismiss. Concluding that Georgia law governs, the court held the suit

was not barred by Georgia's 6-year statute of limitations and that lis alibi pendens

was inapplicable.9 The district court proceeded to grant Appellee’s motion for

summary judgment. In so doing, the court concluded as follows: the Bond and

7
C. Gray Bethea, Jr., Appellant’s General Counsel, testified that Appellant “was not
given contemporaneous notice . . . of the private settlement entered into on September 29, 1994.
We were just informed of the payment. We received a copy of the Settlement Agreement in
1995.”
8
The forum non conveniens basis is not raised on appeal.
9
The district court also denied Appellant’s motion to strike specified affidavits submitted
by Appellee. This issue is not raised on appeal.

7
Indemnification Agreement were in effect when the Declaration was issued;

Resolution No. 493 rendered the Declaration “final and binding;” Appellee

properly notified Appellant; Appellee’s settlement with Ecosalud was reasonable;

and Appellant is liable to Appellee for reimbursement of the principal amount, plus

interest. The district court therefore ordered judgment for Appellee in the principal

amount of $2.4 million, plus pre-judgment interest at the annual rate of 38.76%.

The district court interpreted “the normal banking interest rate that is then in effect

in Colombia[]”10 to mean the standard rate applied to pesos, noting that Appellant

knew when it executed the Bond and Indemnification Agreement “that payment

was contemplated in United States dollars.” This appeal followed.

II. DISCUSSION

A. Motion to Dismiss

Appellant asserts its motion to dismiss should have been granted since (1)

the doctrine of lis alibi pendens applies due to related, ongoing litigation in

Colombia, and (2) a 2-year statute of limitations under Colombian law had expired

prior to the filing of this case. We affirm as to these issues.

10
There are some inconsequential differences between translations of documents
submitted by the parties into the record. For example, the Indemnification Agreement submitted
by Appellant refers to “the normal banking interest rate that is then in effect in Colombia,” while
the Indemnification Agreement submitted by Appellee refers to “the current banking interest rate
in effect in Colombia.”

8
 1. International Comity and Lis Alibi Pendens

We review the district court’s decision declining to apply the principle of lis

alibi pendens for abuse of discretion. See Philadelphia Gear Corp. v. Philadelphia

Gear de Mexico, S.A., 44 F.3d 187, 191 (3d Cir. 1994); Allstate Life Ins. Co. v.

Linter Group Ltd., 994 F.2d 996, 999 (2d Cir. 1993). Lis alibi pendens is a

doctrine rooted in international comity which permits a court to refuse to exercise

jurisdiction in the face of parallel litigation that is ongoing in another country. Cf.

Hilton v. Guyot, 159 U.S. 113, 163-64, 16 S. Ct. 139, 143 (1895) (defining “comity

of nations”); Turner Entm’t Co. v. Degeto Film, 25 F.3d 1512, 1518 (11th Cir.

1994) (discussing doctrine of international abstention where foreign court has

rendered final decision on the merits, but has not issued final judgment).

Appellant argues the district court should have stayed this case in the face of

the suit challenging the Declaration which is pending before a Colombian

administrative court. See supra, Part I. Specifically, Appellant argues the

invalidation of the Declaration by the Colombian court would render Appellee’s

indemnification claim baseless, as Appellee would have no obligation to pay on the

Bond. According to Appellant, the central issue in both this case and the

Colombian case is the validity of the Declaration, and Appellee and Appellant are

9
parties to both suits and are bound by the result of both suits.11 Deciding this case,

therefore, would effectively decide the pending Colombian case and violate

principles of international comity. Appellant also argues that, if this Court affirms

the district court’s judgment and the Colombian court subsequently invalidates the

Declaration, staying this case would avoid “a meaningless cycle of round-robin

litigation” in which Appellant would have to sue Ecosalud for recovery of its

reimbursement to Appellee. Finally, Appellant maintains this Court should invoke

lis alibi pendens here as we did in a related case. See Empresa Colombiana de

Recursos Para La Salud, S.A. v. Scientific Games, Inc., No. 97-8374 (11th Cir. Jan.

27, 1998), 136 F.3d 142 (11th Cir. 1998) (table).

The issue here is whether the district court abused its discretion in declining

to invoke the doctrine of lis alibi pendens. We conclude it did not.

The application of lis alibi pendens turns on whether a court “should

exercise its jurisdiction where parallel proceedings are ongoing in a foreign

nation . . . .” Turner, 25 F.3d at 1518 (emphasis added). The threshold question,

11
Appellant’s attorney, Dr. Andrew Abela-Maldonado, testified in his sworn affidavits
that Appellee was found by the Colombian court to have a “direct interest” in the pending
litigation, has intervened, and is entitled to file motions, request evidence, and set forth its
procedural position. The “motion” filed by Appellee is its version of the facts in the Colombian
case; it is not a request for judicial action. It also includes Appellee’s acknowledgment that it
has been summoned as a “joint litigant” and its statement that it “agrees with what will be
proved at trial and with the judgment that resolves the dispute . . . .”

10
therefore, is whether this case is parallel to the ongoing case in Colombia. See

Finova Capital Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898 (7th Cir.

1999). We conclude the two cases are not parallel since they involve materially

different issues, documents, and parties.

At issue in the Colombian case is the validity of the Declaration and,

therefore, whether Appellant breached the Lottery Contract and whether Ecosalud

properly invoked Clauses 42 and 43 of the Lottery Contract. These clauses provide

the bases for which Ecosalud may declare caducity and demand payment of the

penalty. By contrast, at issue in this case is whether Appellee is entitled to

reimbursement from Appellant under the terms of the Indemnification Agreement

and, by reference, the terms of the Bond. Thus, while this case has been

precipitated by Ecosalud’s issuance of the Declaration, it does not directly involve

the validity of the Declaration or the Lottery Contract.

Furthermore, the outcome of this case will not affect the outcome of the

Colombian case, as Appellant claims. This case will determine only whether the

penalty sum will be outlaid by Appellant rather than by Appellee. In other words,

if Appellee prevails, the risk of the overall transaction would be transferred from

11
Appellee to Appellant. A decision in this case would not, therefore, effectively

decide the outcome of the litigation currently pending in Colombia.12

Next, the parties are not the same. While Appellant’s expert, Dr. Andrew

Abela-Maldonado, testified in his affidavits that Appellee intervened in the

Colombian case and filed a “motion,” see supra note 9, the attorney who submitted

a filing for Appellee in the Colombian litigation, Dr. German Espinosa- Restrepo,

testified in a deposition that Appellee was not a party in the Colombian case.

Rather, Dr. Espinosa testified that Appellee, as a third party with a relationship to

the subject matter in litigation, was summoned into the action to state its position

in the suit. Dr. Espinosa testified that Appellee, in its filing with the Colombian

court, stated that “it has no relationship whatsoever with this action because its

rights that arose in the payment of the obligation will be pursued against

[Appellant] both based in the subrogation action [permitted under Colombian law]

or based on the indemnity agreement like in this case in the United States.” The

text of the filing bears out this characterization: “By virtue of the insurer’s right of

subrogation established by Article 1098 of the Colombian Commercial Code, and

12
We note that, should the Colombian court invalidate the Declaration, the court would
have the option of immediately ordering Ecosalud to reimburse Appellant for its outlay. It
would be feasible for the Colombian court to impose this remedy since Ecosalud and Appellant
are the parties before it, and these parties should have notified the Colombian court of this
Court’s affirming the district court’s judgment. This option would eliminate the need for
Appellant to sue Ecosalud for reimbursement, as argued by Appellant.

12
the utilization of the counterguarantee [i.e., Indemnification Agreement] issued by

[Appellant], [Appellee] is attempting to collect at said company’s domicile

(Alpharetta – Atlanta, Georgia, USA).” Another expert for Appellee, Dr. Jorge

Mora Sanchez, similarly declared that Appellee is not a party to any litigation

between Appellant and Ecosalud in Colombia. Upon reviewing the expert legal

testimony on both sides, we conclude Appellee is not an integral party in the

pending Colombian litigation.

Finally, we draw a contrast between this case, where lis alibi pendens is not

applicable, and two cases cited by Appellant where the doctrine was applicable.

First, Empresa Colombiana de Recursos Para La Salud, S.A. v. Scientific Games,

Inc., No. 97-8374 (11th Cir. Jan. 27, 1998), and a pending Colombian case dealt

with the same issue — whether Ecosalud has the right to enforce the Executable

Document, required under Clause 27(3) of the Lottery Contract. See Empresa

Colombiana de Recursos Para La Salud, S.A. v. Scientific Games, Inc., No. 1:96-

CV-1586-FMH at 19-20 (N.D. Ga. Mar. 17, 1997) (order granting motion to

dismiss complaint and amended complaint based in part on lis alibi pendens).

These cases also directly involved the same parties — Appellant and Ecosalud.

Similarly, Posner v. Essex Ins. Co., 178 F.3d 1209 (11th Cir. 1999), and an

ongoing suit in Bermuda involved the same issue — the validity and therefore the

13
effect of homeowner insurance policies — and the same parties — a homeowner

and an insurance company. See id. at 1213. This case and the pending Colombian

case directly involve neither the same issues nor the same parties.

For the reasons stated above, we conclude the district court did not abuse its

discretion in declining to stay this case based on the doctrine of lis alibi pendens.

2. Statute of Limitations

The district court’s interpretation of foreign law is a question of law

reviewed de novo. See United States v. Gecas, 120 F.3d 1419, 1424 (11th Cir.

1997); see also Fed. R. Civ. P. 44.1 (“The court, in determining foreign law, may

consider any relevant material or source . . . whether or not submitted by a

party . . . . The court’s determination [of foreign law] shall be treated as a ruling

on a question of law.”); id. cmt. (“There is no requirement that the court give

formal notice to the parties of its intention to engage in its own research on an issue

of foreign law which has been raised by them . . . . [A]ppellate review [on a

question of foreign law] will not be narrowly confined by the ‘clearly erroneous’

standard of [Fed.] Rule [Civ. P.] 52(a).”).

Colombian law provides that general enforcement proceedings must be

brought within 10 years of the act giving rise to the cause of action. See

Colombian Civil Code § 2536. Colombian law further provides that “ordinary”

14
actions derived from an insurance contract or the provisions governing it must be

brought within 2 years from when the interested party knew or should have known

of the facts on which the action is based. See Colombian Commercial Code on

Insurance § 1081. Under Georgia law, an action for breach of contract must be

brought within 6 years of the alleged breach. See Ga. Code Ann. § 9-3-24 (1982 &

Supp. 2000).

Appellant contends the 2-year statute of limitations under Colombian law for

insurance claims applies to this action. Appellant first argues for the application of

Colombian law, generally. Appellant then cites the sworn affidavit of Dr. Abela

for the proposition that the Colombia Supreme Court of Justice held the 2-year

statute of limitations applies to all actions derived from or related to insurance

contracts. Appellant argues the 2-year limitation period covers the Indemnification

Agreement since it applies broadly to all insurance-related contracts and since

“[n]othing could be more intertwined with insurance than a claim by an insurer

against the policy holder, triggered by the payment of a claim to a third party.”

Appellant submitted at oral argument that the fact that the Indemnification

Agreement and the Bond were written on two separate pieces of paper should not

control, since the Indemnification Agreement could have been included as a clause

in the Bond contract. According to Appellant, the 2-year statute of limitations bars

15
Appellee’s claim since Appellee’s payment to Ecosalud, which occurred on

November 1, 1994, is the latest possible event giving rise to the suit, and the suit

was filed on April 2, 1998, more than 2 years later.

Appellee claims Georgia law and its 6-year limitations period apply. Under

this theory, Appellee’s suit is not barred.13 The district court agreed with

Appellee’s point of view, concluding Georgia’s 6-year statute of limitations

applies.

We begin with the question of whether the 2-year or the 10-year Colombian

statute of limitations would apply to this case, assuming arguendo that Colombian

law applies. Dependent as we are on legal experts to determine which of the

Colombian statutes of limitation apply, see generally Eastern Airlines, Inc. v.

Floyd, 499 U.S. 530, 539-40, 111 S. Ct. 1489, 1495-96 (1991), we observe a

“battle of the experts” in the record. Dr. Abela takes the position that the 2-year

statute of limitations applies broadly to all insurance-related suits. Furthermore, he

asserts that this case is insurance-related since it involves an insurance company

suing its insured for reimbursement under an indemnification agreement. Dr.

Abela therefore concludes the 2-year statute of limitations applies to this case.

13
Similarly, under Colombia’s 10-year statute of limitations for general enforcement
proceedings, Appellee’s suit would not be barred.

16
According to Dr. Abela, the Colombia Supreme Court of Justice “held that Section

1081 of the Colombian Commercial Code on Insurance [including the 2-year

statute of limitations] applies to all actions that had their support in an insurance

contract, whether seeking the satisfaction of the right, or right related to the

insurance contract or related to its enforcement or seeking clarification or

recognition of the insurance contract.” Furthermore, the Supreme Court of Justice

“made special note of the independence and special application of [the 2-year

statute of limitations] to the prescription of all actions derived from insurance

contracts.” Dr. Abela cites another decision of the Colombia Supreme Court of

Justice which, he testifies, specifies that insurance companies, such as Appellee,

are entities that derive rights from insurance contracts under § 1081. According to

Dr. Abela, since the 2-year statute of limitations applies to actions “derived or

related to insurance,” Appellee’s claim is barred.

By contrast, Dr. Espinosa takes the position that the 10-year statute of

limitations applies. In his view, the Indemnification Agreement is not an insurance

contract, should be treated as a general contract, and is therefore governed by

§ 2536 of the Colombian Civil Code. In his sworn deposition, Dr. Espinosa

explains the Indemnification Agreement is not an insurance contract since it was

not issued by an insurance company and does not include an obligation to

17
compensate if a loss is suffered. According to Dr. Espinosa, the Indemnification

Agreement is a private contract whose reference to the Bond in no way subjects it

to the Insurance Code. In fact, Dr. Espinosa explains the Indemnification

Agreement cannot be governed by the Insurance Code since insurance contracts are

governed exclusively by the Insurance Code and cannot be modified by a private

contract. The Indemnification Agreement, as a private contract, is therefore by

definition outside the scope of the Insurance Code. In his deposition, Dr. Espinosa

expressly disagrees with Dr. Abela’s opinion.

Based on our review of this conflicting expert testimony in the record, we

conclude the 10-year statute of limitations would apply to this case, assuming

arguendo that Colombian law governs. We view the Indemnification Agreement

as separate and distinct from the Bond. We conclude that the reimbursement claim

under the Indemnification Agreement is not intertwined with the insurance claim

under the Bond.14 We decline to consider the possibility that the Indemnification

Agreement could have been integrated with the Bond contract. Further, we view

the Indemnification Agreement as a generic reimbursement contract that happens

to be precipitated by the execution of a separate insurance contract, the Bond. The

14
We assume arguendo, as asserted by Appellant, that the Bond is characterized as an
insurance claim under Colombian law.

18
Indemnification Agreement lacks the elements that characterize an insurance

contract, such as issuance of a policy by an insurance company to an insured party,

an insured party’s obligation to pay a premium, and an insurance company’s

obligation to compensate for a covered loss. We understand the clause, “actions

derived from an insurance contract or the provisions governing it,” to mean

litigation arising from a relationship founded on an agreement that bears the

foregoing, traditional makings of an insurance contract. Colombian Commercial

Code on Insurance § 1081. To say that litigation premised on a contract where the

insured is obligated to reimburse an insurance company — the opposite of the

conventional insurance relationship — is covered by § 1081 of the Insurance Code

would be to assign to this statute too attenuated an interpretation.15

15
We note our review — or attempted review — of decisions of the Colombia Supreme
Court of Justice cited by Dr. Abela. The case cited by Dr. Abela in ¶ 30 of his affidavit, dated
May 8, 1998, and included in the record in English translation, discusses against whom and
under what circumstances the 2-year ordinary and 5-year extraordinary statutes of limitation run
pursuant to § 1081 of the Insurance Code. See Statute of Limitations in Insurance Contracts,
Colombia Supreme Court of Justice, Civil Section, Dr. Jose Maria Esguerra-Samper, Justice in
Charge (July 4, 1977). In the course of this discussion, the court explains that the event that
triggers the limitations period “is not and cannot be anything other than the loss, which is
defined in Article 1072 as ‘the realization of the insured risk,’ i.e., the occurrence of the future or
uncertain act the occurrence of which gives rise to the insurer’s obligation to indemnify and
correspondingly to the insured or beneficiary’s right to receive the indemnification . . . .” Id. at
1. In stating that a loss giving rise to an insurance claim is the only event that can trigger the 2-
year limitations period, the Colombia Supreme Court of Justice strongly implies that § 1081
applies solely to conventional insurance contracts and policies, and not to those merely
precipitated by or related to insurance contracts, like the Indemnification Agreement.
The case cited by Dr. Abela in ¶ 25 of his affidavit dated May 8, 1998, see Contracto de
Seguro, Prescripcion de Acciones, Colombia Supreme Court of Justice, Civil Section, Dr.
Alberto Ospina-Botero, Justice in Charge (Mar. 4, 1989), seems not to have been submitted into

19
 We therefore conclude the Colombian 10-year statute of limitations, rather

than the 2-year statute of limitations, would apply to this case, on the assumption

that Colombian law governs this case. Based on this conclusion, we need not reach

the question of whether Colombian or Georgia law applies. This case is not barred

under either Colombia’s 10-year limitation period or Georgia’s 6-year limitation

period.

B. Motion for Summary Judgment

We review de novo the district court’s grant of summary judgment, applying

the same standard as the district court. We view all evidence and factual inferences

reasonably drawn from the evidence in the light most favorable to the non-moving

party, here, Appellant. See St. Charles Foods, Inc. v. America’s Favorite Chicken

Co., 198 F.3d 815, 819 (11th Cir. 1999). “Summary judgment is appropriate when

there are no genuine issues of material fact and the movant is entitled to judgment

as a matter of law.” McCaleb v. A.O. Smith Corp., 200 F.3d 747, 750 (11th Cir.

2000) (citing Fed. R. Civ. P. 56(c)).

Appellant argues this case presents several issues of fact which preclude the

entry of summary judgment. The purported issues of fact are as follows: (1)

the record. More significantly, it has not been submitted into the record in English translation.
We are therefore unable to consider this case.

20
whether the term of the Bond was renewed and, therefore, in effect when the

Declaration of Caducity was issued; (2) whether the Indemnification Agreement

was in effect when the Declaration was issued; (3) whether Appellee was obligated

to pay under the terms of the Bond; and (4) whether Appellee’s settlement with

Ecosalud was reasonable as a matter of law. We address each asserted issue of fact

and conclude no issue of material fact has been raised. We affirm the grant of

summary judgment and the principal judgment in the amount of $2.4 million.

1. Renewal of Bond

Appellant argues that Appellee renewed the term of the Bond without

authorization from Appellant, thereby unilaterally increasing the scope of the risk

Appellant faced under the Indemnification Agreement. Appellant also claims

Appellee sought additional security from Appellant as a condition to renewing the

Bond. Appellant argues this unilateral risk increase and demand for additional

security preclude Appellee’s claim that Appellee had an obligation to renew the

Bond automatically. Appellant next cites Ecosalud’s apparent threat to cancel the

Lottery Contract as evidence that the Bond was not meant to renew automatically.

According to Appellant, the Bond could have been renewed since Appellant did

not supply additional security and did not pay a premium for the Bond. It follows

21
that there is at least a question of fact as to whether the Bond was in effect when

the Declaration was issued.

Appellee argues both parties agreed to an amendment to the Bond, dated

May 15, 1992, under which the Bond automatically renewed every year that the

Lottery Contract remained in effect, as well as the year following the contract’s

expiration. According to Appellee, this amendment brought the Bond into

compliance with Clause 41(a) of the Lottery Contract. Appellee explains that

Wintech, the entity created by Appellant and two other companies to implement

the Lottery Contract, paid the premium for the renewed Bond. Since performance

of the Lottery Contract required the maintenance of the Bond, Wintech had the

contractual obligation, and thus express authority from Appellant, to pay for the

Bond’s renewal. Appellee contends Appellant’s allegations that Appellee sought

additional security and that Ecosalud threatened to cancel the Lottery Contract are

irrelevant in light of the express contractual provisions. According to Appellee, no

terms beyond those in the amendment were added to the Bond, and it was properly

renewed in accordance with its existing terms.

We agree with Appellee that there is no factual question as to whether the

Bond was renewed. We have reviewed the affidavit of C. Gray Bethea, Jr.,

Appellant’s General Counsel, wherein Mr. Bethea declared under oath that

22
Wintech sought to have Appellant sign a blank promissory note as a condition to

obtaining a new Bond and that Appellee, through Wintech, sought other assurances

from Appellant that it would issue security to Appellee. Mr. Bethea declared,

“[Appellant] did not agree to renew or replace the security for the Guarantee Bond,

nor did [Appellant] pay the premium for the new bond.” We have also reviewed a

letter from Wintech to Appellant which mentions Ecosalud’s alleged statement that

it would cancel the Lottery Contract if the Bond was not renewed shortly.

Parol evidence such as that described above, however, cannot be considered

in the face of an unambiguous, written guaranty agreement. See Rizk v. Jones, 251

S.E.2d 360, 361 (Ga. Ct. App. 1978) (“The cases are legion that a complete and

unambiguous instrument cannot be varied or contradicted by reliance upon

inconsistent parol statements.”) (internal quotation marks and citations omitted),

aff'd, 255 S.E.2d 19 (Ga. 1979); Health Serv. Ctrs. v. Boddy, 359 S.E.2d 659, 661

(Ga. 1987) (“Where the terms of a written contract are clear and unambiguous, the

court will look to the contract alone to the find the intention of the parties.”);

American Viking Contractors, Inc. v. Scribner Equip. Co., 745 F.2d 1365, 1371

(11th Cir. 1984) (applying Georgia law); see also In re Stratford of Texas, Inc.,

635 F.2d 365, 368 (11th Cir. 1981) (“Ordinarily, we should glean the contract’s

meaning without resorting to extrinsic evidence in accordance with the principle

23
that the language of an agreement, unless ambiguous, best represents the intention

of the parties.”).16 Since the text of the amendment whereby Appellee promised to

renew the Bond automatically is unambiguous, we decline to consider Mr.

Bethea’s affidavit and Wintech’s letter to Appellant.17 This amendment, dated

May 15, 1992, provides, “[Appellee] promises to automatically renew this policy at

the end of each period until the end of the term of effectiveness of [the Lottery

Contract], entered into with Ecosalud, S.A. and one year more, including the

extensions thereof. The taker [Wintech] promises to pay the respective premiums.”

This amendment unambiguously obligated Appellant and Appellee to renew the

Bond automatically every year until the expiration of the Lottery Contract, plus

one year. The Lottery Contract was to remain in effect through June 12, 1997,

under Clauses 2 and 68 of the Contract. In fact, the record shows the parties

complied with this amendment by agreeing to another amendment, dated March 2,

1993, by which they extended the Bond for another year, from March 12, 1993,

16
The parol evidence rule is a substantive rule of law to which the Erie doctrine applies.
See, e.g., MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova d’Agostino, S.p.A., 144 F.3d
1384, 1388-89 (11th Cir. 1998); Conway v. Chem. Leaman Tank Lines, Inc., 540 F.2d 837, 839
(5th Cir. 1976); Schewe v. Bentsen, 424 F.2d 60, 62 (5th Cir. 1970). This Court has not been
advised of any contrary legal doctrine in Colombia which would apply in this case.
17
In any case, we note Mr. Bethea’s affidavit discusses only Appellee’s seeking to effect
changes in the terms of the Bond; it does not refer to any actual changes to these terms.
Additionally, we fail to see the significance of Ecosalud’s apparent belief that the Bond would
not be automatically renewed, as Ecosalud is not a party to the Bond.

24
through March 12, 1994. Under the express terms of these amendments, the Bond

was in effect when the Declaration of Caducity was issued on July 1, 1993.

Moreover, the amendment obligating the automatic renewal of the Bond was

expressly agreed to in compliance with Clause 41(a) of the Lottery Contract. This

clause provides, “This bond shall remain in effect for the entire term of this

Agreement, including any extensions thereof, and for one additional year.” As

noted above, the Lottery Contract was to be effective through June 12, 1997.

Appellant’s apparent belief that the Bond need not have been renewed is therefore

questionable under the express terms of the Lottery Contract to which Appellant

was a party.

As to Appellant’s question of how the Bond was renewed, Appellant

concedes that “[t]he evidence suggests, but does not confirm, that Wintech paid the

premium for the Bond . . . .” We agree that Wintech paid the premium, since

Appellant, PKI Associates, and Daibutsu, Inc., the companies that formed Wintech,

are listed as the contractors on the Bond amendment that extended the Bond

through March 12, 1994.

Appellant argues, however, that Wintech was not a party to the Bond and

was not insured by it. This argument appears to be based on the fact that only

Appellant is listed as the contractor for the Bond policy dated March 12, 1992, and

25
effective from that date to March 12, 1993. However, this policy had expired

when the Declaration of Caducity was issued on July 1, 1993. At that time, the

effective policy was the amendment extending the Bond through March 12, 1994,

and Appellant, PKI, and Daibutsu are all listed as contractors on this document.

Furthermore, Clause 41 of the Lottery Contract required Appellant, PKI, and

Daibutsu to furnish a Bond which was required to remain effective through June

12, 1998. We conclude that the Bond was properly renewed, and there is no

question of material fact as to whether the Bond was in effect when the Declaration

of Caducity was issued.

2. Effectiveness of Indemnification Agreement

Appellant argues the Indemnification Agreement had a term of one year, and

the absence of an automatic renewal provision in the Agreement should be

construed to limit the Agreement to this term. Appellant claims it never consented

to an extension of the Agreement, and nothing on the face of the Agreement would

permit Appellee to extend the term of the Agreement unilaterally. According to

Appellant, it is therefore questionable whether the Indemnification Agreement was

in effect when the Declaration of Caducity was issued.

26
 Appellee argues the express language of the Indemnification Agreement ties

its term of effectiveness to that of the Bond. The extension of the term of the Bond

therefore extended the term of the Indemnification Agreement.

We agree with Appellee. The Indemnification Agreement provides, “The

validity of this document shall be broad, and it shall remain in effect for a term

equal to that of the bonds issued by [Appellee].” The Bond was extended through

March 12, 1994, and Appellee was obligated to automatically renew it on an

annual basis through June 12, 1998. See supra Part II.B.1. According to its

express language, the Indemnification Agreement was likewise extended through

March 12, 1994, and subject to automatic renewal. The Indemnification

Agreement was therefore in effect when Ecosalud issued the Declaration of

Caducity.18

18
Appellant argues that reaching this conclusion would require us to improperly “revise
or supplement an agreement under the guise of contract construction.” Sosebee v. McCrimmon,
492 S.E.2d 584, 586 (Ga. Ct. App. 1997). In Sosebee, the contract expressly mentions one
specific situation, while the case involves a wholly different situation about which the contract is
silent. Id. Here, by contrast, the Indemnification Agreement broadly states its term of
effectiveness, without excluding any specific circumstances.

As discussed above, see Part II.B.1, parol evidence cannot to be considered in the face of
an unambiguous, written agreement. See Rizk, 251 S.E.2d at 361; Health Serv., 359 S.E.2d at
661; American Viking, 745 F.2d at 1371; see also Stratford, 635 F.2d at 368. We therefore do
not address the testimony of Dr. Abela in his third affidavit that the term of the Indemnification
Agreement “would be equal to the term of the Guarantee Bond issued by [Appellee], that is one
year.” Neither do we consider Mr. Bethea’s affidavit testimony that “[a]t no time did I ever
think that the Indemnity Agreement extended beyond the one-year term of the Guarantee Bond.”

27
 3. Obligation to Pay Under the Bond

The Indemnification Agreement requires Appellant “to immediately

reimburse [Appellee] for any sums that it pays to . . . ECOSALUD, in accordance

with the terms of . . . [the Bond] as indemnification for losses and any other

expenses or costs derived from said Performance Bonds.” The Bond requires

Appellee to pay Ecosalud when an issued Declaration of Caducity becomes “final

and binding.” The question, therefore, is whether the Declaration of Caducity is

“final and binding,” thereby obligating Appellee to pay Ecosalud under the terms

of the Bond and, in turn, obligating Appellant to reimburse Appellee under the

terms of the Indemnification Agreement. As discussed above, see Part I, Ecosalud

issued a Declaration of Caducity, Resolution No. 246, on July 1, 1993, and

affirmed this Declaration with Resolution No. 493, on October 15, 1993.

Appellant first argues the Declaration of Caducity cannot be final since it is

subject to the outcome of a pending administrative proceeding initiated by

Appellant and Wintech in Colombia. Second, Appellant argues the Declaration

was not final and Appellee did not have an obligation to pay Ecosalud $4 million

since Appellee’s property was never subject to imminent foreclosure. Specifically,

Ecosalud never took formal action to seize or foreclose upon Appellee’s property.

Even were Appellee’s property subject to seizure, Ecosalud would have had to

28
initiate a foreclosure proceeding in the Colombian Special Courts and obtain an

administrative order. Appellant believes that, during this process, Appellee would

have had the opportunity to defend against foreclosure by posting a bond or a

deposit in court. Appellant also contends Appellee could have sought a stay of any

potential enforcement of the Declaration.

Appellee argues that, at the time it made payment to Ecosalud, the

Declaration of Caducity was final and subject to execution. Appellee had the right,

under Colombian law, to appeal the Declaration and, in fact, initiated such an

appeal. According to Appellee, the Declaration became final and subject to

execution when Ecosalud confirmed the Declaration by issuing Resolution No.

493. Appellee contends the pending litigation challenging the Declaration does not

affect the Declaration’s finality. In Appellee's view, only the entry of a stay would

do so, and the Colombian administrative judge declined to issue a stay in this case.

Based on our review of the expert testimony in the record, we agree with

Appellee. In support of Appellee's position, Dr. Ramon del Villar, a legal expert

for Appellee, declared:

When Resolution 0246 was affirmed by Resolution 0493, it became[]
firm, final and subject to execution by itself. . . . This possibility of
execution . . . was not stayed because those resolutions were being
challenged in an administrative tribunal. . . . I consider that once the
administrative ruling became final, [Appellee] had to pay the amount
agreed on the policy . . . . After the Tribunal denied the temporary

29
 stay, [Appellee] was under an even greater pressure to pay Ecosalud
to prevent execution and therefore attachment of its property.

Dr. Carlos Betancur Jaramillo, another legal expert for Appellee, similarly testified

that Resolution No. 493 rendered the Declaration final and executable. In his

words, “As soon as the Resolution No. 246 was made final by a decision of

[Resolution No.] 493, the act acquired executory right and it could be used to

execute the debtors.” Dr. Betancur explained that Resolution No. 246 was not final

and enforceable prior to the issuance of Resolution No. 493. Dr. Jorge Mora

Sanchez likewise averred that as a result of the issuance of Resolution No. 493,

Resolution No. 246 “became final and subject to execution. . . . [Therefore,] the

assets of [Appellee] . . . were subject to levy and seizure if [Appellee] did not pay

the US$ 4,000,000.”

Appellant relies heavily on the testimony of Dr. Abela to support its position

that the Declaration was not final when Appellee made payment to Ecosalud.

Nowhere, however, did Dr. Abela state that Resolution No. 246 was not final

subsequent to the issuance of Resolution No. 493. Dr. Abela testified that an

“administrative act could be subject to a judicial challenge before the competent

administrative courts, which will, ultimately, decide on its validity.” In addition,

Dr. Abela explained, “[T]hese administrative acts are bound to the final outcome of

said litigation [challenging the validity of the Declaration of Caducity], which is

30
still in process.” Although Dr. Abela testified that, subsequent to Ecosalud’s

dismissal of Appellee’s challenge to the Declaration, the administrative courts can

determine whether the Declaration is valid, he did not claim that such a judicial

challenge renders the Declaration not final. We therefore deem Dr. Abela’s

testimony consistent with our conclusion that Resolution No. 493 rendered the

Declaration “final and binding,” albeit subject to the outcome of the pending

litigation. We conclude there is no factual issue as to whether Appellee was

obligated to pay Ecosalud under the terms of the Bond.19

4. Reasonableness of Settlement

Appellant argues a factual question persists as to whether Appellee’s

settlement with Ecosalud for payment of $2.4 million was reasonable, since

negotiations were allegedly conducted without Appellant’s notification or

participation. Appellant claims it was notified of the settlement only after the

negotiations concluded.

19
We determine Appellant misses the point in arguing the Declaration was not final
because Appellee’s property was not subject to imminent foreclosure and, in any event, Appellee
would have had various opportunities to resist such foreclosure. Once the Declaration became
final and enforceable upon the issuance of Resolution No. 493, Appellee was obligated to
Ecosalud for $4 million, regardless of the steps Ecosalud took to enforce this payment and
regardless of the optional recourses available to Appellee. Appellee owed Appellant no duty to
delay meeting its obligation to Ecosalud. In any case, Appellee did initiate a challenge to the
Declaration. In the mean time, Appellee acted properly and responsibly in meeting its obligation
to Ecosalud pursuant to the Declaration of Caducity.

31
 Appellee argues it was obligated to pay Ecosalud $4 million upon the

issuance of Resolution No. 493, and its negotiated settlement with Ecosalud was an

effort to mitigate its damages. Appellee maintains that, absent the settlement, it

would be seeking a reimbursement of $4 million, not $2.4 million. Appellee

believes this reduction in liability to be reasonable, as it benefits both Appellee and

Appellant. Appellee explains that, after the Declaration was issued, it notified

Appellant that Appellee’s property was subject to attachment. Furthermore, after

Resolution No. 493 was issued, Appellee notified Appellant that the obligation was

payable.20

We agree with Appellee that the settlement was reasonable. Appellant cites

the rule that “an indemnitee, after giving the indemnitor notice and an opportunity

to defend, could settle a lawsuit and claim indemnity upon a showing that the

decision to settle was reasonable.” Southern Ry. v. Georgia Kraft Co., 823 F.2d

478, 480 (11th Cir. 1987). This rule does not apply here. This principle governs

only where there is a lawsuit filed by a third party against an indemnitee, and the

indemnitee settles with the third party and demands payment from the indemnitor.

See id. In other words, the rule applies only where a claim has been filed against

20
We note that Appellant does not acknowledge Appellee’s notification subsequent to the
issuance of Resolution No. 493, nor does Appellee mention its post-settlement demand for
reimbursement from Appellant.

32
the indemnitee, but no final judgment has been entered against the indemnitee. In

such situations, as in Southern Railway, absent the settlement, there would be no

current obligation to pay the third party and thus no current indemnification

obligation. The indemnitee, therefore, must show the reasonableness of the

settlement to guard against the possibility that the indemnitee could increase the

obligation of the indemnitor for the benefit of the indemnitee.21

Here, by contrast, a final and executable obligation to pay Ecosalud

$4 million was imposed on Appellee, the indemnitee. See supra Part II.B.3. Due

to Appellee's obligation to pay, Appellant was obligated to indemnify Appellee for

the full $4 million Appellee expended. We conclude that Appellee’s settlement

with Ecosalud, which reduced Appellee's obligation to Ecosalud from $4 million to

$2.4 million, was inherently reasonable with respect to Appellant, since this

reduction in Appellee's obligation reduced, in turn, Appellant's obligation to

Appellee from $4 million to $2.4 million. The key here is that, absent the

settlement, Appellant would have been obligated to Appellee in the amount of $4

million. Under these circumstances, Appellee need not make an explicit showing

of reasonableness. Appellee also was not obligated to notify Appellant that

21
For example, the indemnitee could settle a case that would likely have been won on the
merits in order to avoid the disturbance and expense of litigation.

33
settlement negotiations had begun or to accept Appellant’s input in the settlement

process, as was required in Southern Railway.22

C. Interest Judgment

Contract interpretation without resort to parol evidence is a question of law

reviewed de novo. See Luckie v. Smith Barney, Harris Upham & Co., 999 F.2d

509, 512 (11th Cir. 1993); Stratford, 635 F.2d at 368. Based on its interpretation

of the interest provision in the Indemnification Agreement, the district court

ordered Appellant to pay interest on the $2.4 million principal judgment at an

annual rate of 38.76%, which was the Colombian bank interest rate for pesos on

November 1, 1994, the date of Appellee’s payment to Ecosalud.

Appellant argues that applying the 38.76% rate to dollars, rather than to

pesos, grants Appellee a windfall. Appellant maintains the judgment day rule,

which governs obligations in foreign countries and in foreign currencies, should

apply, as the transaction occurred in Colombia, and Ecosalud recognized the

receipt of funds in pesos. Under this approach, the district court would have

applied the 38.76% interest rate to the pesos equivalent of $2.4 million and then

converted the sum of principal plus interest into dollars as of the date of judgment.

22
We need not address Appellant’s arguments that the Colombian Attorney General’s
failure to approve the settlement supports the unreasonableness of the settlement and that there is
no evidence in the record regarding Appellee’s alleged liquidity problems.

34
The effective interest rate would then be 4.22%. Alternatively, if Appellee is

correct that Appellant was obligated to pay in U.S. dollars, Appellant argues a

dollar transaction should carry a different interest rate than a peso transaction. The

interest judgment should, therefore, be set aside due to Appellee’s failure to prove

the Colombian bank interest rate on dollar transactions.

Appellee argues the district court’s application of the 38.76% rate to dollars

should be affirmed. Appellee contends the payment should be considered in terms

of dollars and the judgment day rule should not apply. Appellee points out, inter

alia, the Indemnification Agreement references sums paid under the Bond which

states the insured amount as “US$ 4,000,000,” and Ecosalud’s official receipt

references a check for 1.00626 billion pesos exchanged for $1.2 million, and two

checks for $300,000 and $900,000, respectively. Appellee next argues the interest

rate unambiguously set forth in the Bond is 38.76% — the Colombian banking

interest rate on November 1, 1994. Appellee contends the application of any other

rate would rewrite the Bond contract.

We hold the district court erred in applying a 38.76% annual interest rate to

the $2.4 million principal judgment. We reach the following conclusions: (1) the

Bond and the Indemnification Agreement contemplated payment in U.S. dollars,

and (2) the applicable interest rate is therefore that which Colombian banks would

35
have applied to U.S. dollar deposits on November 1, 1994. Our conclusions are

grounded wholly in the language of the Bond and the Indemnification Agreement.

First, we conclude these contracts require Appellant to reimburse Appellee

in U.S. dollars. The Indemnification Agreement provides, “[Appellant] agrees to

immediately reimburse [Appellee] for any sums that it pays to [Ecosalud] in

accordance with the terms of . . . the ‘Performance Bonds’ . . . .” Every Bond

policy issued sets forth “US$4,000,000” as the “Insured Amount” or the “Present

Insured Amount.” The express terms of these agreements therefore show the

payable amount in U.S. dollars. In light of this express language, we attach no

significance to the disputed intent of the parties, which is allegedly manifested in

Ecosalud’s written receipt and Appellee’s checks. See Rizk, 251 S.E.2d at 361;

Health Serv., 359 S.E.2d at 661; American Viking, 745 F.2d at 1371; see also

Stratford, 635 F.2d at 368. Given our conclusion that reimbursement was required

in dollars, we decline to apply the judgment day rule, as urged by Appellant.

Second, the Indemnification Agreement provides, “The sums paid by

[Appellee] to ECOSALUD in accordance with the Performance Bonds shall accrue

interest at the current banking interest rate in effect in Colombia.” The “current

banking interest rate in effect in Colombia” may be different for peso deposits than

it is for U.S. dollar deposits. There is no valid reason that the “current banking

36
interest rate” must denote one numerical rate for all deposits, regardless of

currency. The most straightforward way to understand “current banking interest

rate” is the interest rate a Colombian bank would apply, as a matter of course, to a

deposit of any given currency. From this record, we do not know the interest rate a

Colombian bank would apply to U.S. dollar deposits.23 We therefore remand for

the district court to make this factual determination.24 We hold the district court

should apply the interest rate that a Colombian bank would have applied to a U.S.

dollar deposit on November 1, 1994. In so holding, we do not rewrite the Bond

agreement; to the contrary, we fulfill its plain meaning.

III. CONCLUSION

As an initial matter, we affirm the district court’s denial of Appellants’

motion to dismiss. We conclude the district court did not abuse its discretion in

declining to stay this case based on the principle of lis alibi pendens. Additionally,

23
Appellee relies on testimony by Dr. Jorge Mora Sanchez in which he states, "The
normal banking interest rate in effect on 1 November 1994 in Colombia was 38.76 percent per
annum." Since the Indemnification Agreement is not ambiguous, we need not address this parol
evidence. See Rizk, 251 S.E.2d at 361; Health Serv., 359 S.E.2d at 661; American Viking, 745
F.2d at 1371; see also Stratford, 635 F.2d at 368. Furthermore, we do not accept the premise
underlying Dr. Sanchez's statement — that the 38.76% interest rate for pesos automatically
applies to U.S. dollars as well.
24
It would make sense that Colombian banks do not apply the same interest rate to peso
deposits as to dollar deposits, and that Colombian banks take into account the dollar-peso
exchange rate in determining the interest rate applied to U.S. dollar deposits. Nevertheless, we
make no assumptions here and remand to the district court to make these factual findings.

37
we conclude this case is not barred by the statute of limitations, regardless of

whether Colombian or Georgia law governs. If Colombian law governs, the 10-

year statute of limitations for general enforcement proceedings would apply. If

Georgia law governs, the 6-year limitation period for contracts would apply.

Either way, this suit is not time barred.

Reaching the merits, we affirm the district court’s grant of summary

judgment and its award of a principal judgment in the amount of $2.4 million. We

conclude Appellant failed to raise an issue of material fact. Specifically, we

determine the following: (1) the Bond was renewed; (2) the Bond and the

Indemnification Agreement were in effect when the Declaration of Caducity was

issued; (3) Appellee was obligated to pay under the Bond; and (4) Appellee’s

settlement with Ecosalud was reasonable.

Finally, we conclude the district court erred in applying an annual, pre-

judgment interest rate of 38.76%. We therefore vacate the penultimate paragraph

of Part III of the district court's order dated September 28, 1999, the final 12 words

of Part III of the order, the order’s direction to enter judgment for interest at an

annual rate of 38.76%, and the judgment's award of interest at this rate.

Furthermore, we remand for the district court to determine the interest rate

Colombian banks would have ordinarily applied to a deposit of U.S. dollars on

38
November 1, 1994, and to recalculate the interest judgment against Appellant

according to this rate.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH

INSTRUCTIONS.

39