Lexon moves to enforce indemnity, collateral and access rights on bond dispute
Lexon Insurance is chasing not less than $2.6 million from an Oregon contractor group after a fire district construction project dispute.
On January 6, 2026, Lexon Insurance Company filed a verified action in the United States District Court for the District of Oregon against Ben Fackler Construction, Inc. and a cluster of related companies and family members tied to the Fackler name. At the center of the dispute is a performance bond backing work for the SW Polk County Rural Fire Protection District on a construction contract.
Lexon, a corporation organized under the laws of Texas with its principal place of business in Mount Juliet, Tennessee, says it issued the bond on behalf of Ben Fackler Construction as principal, with the fire district as obligee, in a penal sum of $3,493,243.00. According to the filing, the fire district has made a claim on the bond and has alleged that Fackler Construction failed to fulfill its contractual obligations and performed defective work, leaving the district with damages of not less than $2,600,000.00, plus attorney’s fees, costs, and interest.
The federal case turns on core surety tools: indemnity, collateral, trust funds, and access to books and records. Lexon says it agreed to issue the bond in reliance on a series of General Agreements of Indemnity signed over several years by Fackler-related businesses and individuals.
n 2016, Ben Fackler Construction, Inc., S. Benjamin Fackler, and Jennifer R. Fackler signed a General Agreement of Indemnity in favor of Lexon. A second agreement, in 2018, was executed by S. Benjamin Fackler, Jennifer R. Fackler, Pro Handyman Services of McMinnville, LLC, and Pro Handyman Services of Spokane, LLC. In 2020, another agreement was signed by S. Benjamin Fackler, Jennifer R. Fackler, Fackler Holding Company, Northwest Security & Automation, LLC d/b/a Innova NW, and James E. Fackler, and in 2021 Fackler Properties, LLC was added by amendment.
Across these agreements, Lexon alleges that the indemnitors jointly and severally agreed to indemnify, exonerate, reimburse and hold the surety harmless from “any and all liability, loss and expense of whatsoever kind and nature,” including claims, damages, court costs, attorneys’ fees, and interest. The 2016 and 2018 agreements state that amounts due to the surety are payable upon demand, “whether or not the Surety shall have made any payment therefor or established a reserve,” and that vouchers or other evidence of payment are prima facie evidence of the indemnitors’ liability. The 2020 agreement similarly allows Lexon to rely on an itemized, sworn statement of loss as prima facie proof of liability.
Collateral and access provisions are particularly prominent. Under the 2016 and 2018 agreements, the indemnitors agreed to “deposit with the Surety, as collateral security, immediately upon demand, a sum of money” equal to the surety’s liability, asserted liability, reserve, or other exposure, and acknowledged that failing to do so “shall cause irreparable harm to the Surety” and entitles Lexon to injunctive relief and specific performance. The 2020 agreement requires the indemnitors, upon demand, to deposit collateral “in the form and amount as the Surety in its sole discretion deems necessary or appropriate,” and likewise characterizes failure to post collateral as causing irreparable harm and justifying injunctive relief.
The agreements also contain trust-fund language. They state that funds due or to become due under contracts covered by the bonds, or bonded contracts, are to be held in trust by the indemnitors for the benefit of those to whom the indemnitors incur obligations in performing the contracts and for the benefit of Lexon for any loss, costs, or expenses. Separate clauses give Lexon “unrestricted access to any and all books, records, trust funds, accounts, documents, or other information” relating to the indemnitors’ financial affairs and operations, at least until the surety’s liability under all bonds is terminated.
Lexon alleges that, on or about September 25, 2024, the SW Polk County Rural Fire Protection District filed a lawsuit in Polk County Circuit Court, Oregon, Case No. 24CV46386, against Fackler Construction and Lexon, asserting its claim under the bond and seeking not less than $2,600,000.00 in damages, plus attorney’s fees, costs, and interest. Lexon says it has retained outside legal counsel to investigate the claim, defend Lexon in that case, and assist in resolving its bonded obligations, and that it has already incurred and will continue to incur attorney fees and expenses in connection with the claim and enforcement of the indemnity agreements.
According to the federal filing, Lexon sent correspondence dated May 30, 2025, and July 24, 2025, demanding that the indemnitors indemnify Lexon, discharge it from all potential liability on the bond, deposit cash or other collateral satisfactory to Lexon in an amount equal to the anticipated loss of not less than $2,600,000.00, and provide access to their books and records. Lexon alleges that the indemnitors have not indemnified or exonerated Lexon, have not posted any collateral, and have not permitted the requested access.
Lexon is asking the court for judgment in an amount to be proven at trial but in any event not less than $2,600,000.00, plus attorney fees, costs, and prejudgment interest at 9% per annum. It also seeks an order compelling the indemnitors, jointly and severally, to post collateral of at least $2,600,000.00, along with additional funds as necessary to cover costs and fees, and injunctions restraining the defendants from selling, transferring, disposing of, or encumbering assets until collateral is posted and Lexon is given unrestricted access to their books and records.
All of these details come from Lexon’s verified court filing. The court has not ruled on the merits, and the defendants have not yet had their allegations tested in any final decision.