COLUMBUS FIRE AND SAFETY EQUIPMENT COMPANY INC v. ANDERSON ELECTRIC COMPANY LLC et al
Filing
29
ORDER denying 22 Motion for Summary Judgment. Ordered by U.S. District Judge CLAY D LAND on 03/10/2014 (jcs)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
THE UNITED STATES OF AMERICA, *
ON BEHALF OF AND FOR THE USE OF
COLUMBUS
FIRE
&
SAFETY *
EQUIPMENT COMPANY, INC.,
*
Plaintiff,
*
vs.
*
ANDERSON
ELECTRIC
COMPANY,
INC.,
LIFECYCLE
CONSTRUCTION *
SERVICES, LLC, and FIDELITY AND
DEPOSIT COMPANY OF MARYLAND,
*
Defendants.
CASE NO. 4:12-CV-254 (CDL)
*
O R D E R
As a subcontractor on the federal construction project for
the
Wilson
Elementary
Plaintiff
Columbus
(“Columbus
Fire”)
School
Fire
&
provided
Gym
at
Safety
fire
Ft.
Benning,
Equipment
and
Georgia,
Company,
safety
equipment
Inc.
to
Defendant Anderson Electric Company, Inc. (“Anderson Electric”),
another subcontractor on the project.
When Anderson Electric
failed to pay for the equipment, Columbus Fire notified the
primary
contractor
for
the
project,
Lifecycle
Construction
Services, LLC (“Lifecycle”), and its surety, Defendant Fidelity
and Deposit Company of Maryland (“Fidelity”) of its claim for
payment.
Unsuccessful
in
its
attempt
Columbus Fire filed the present action.
to
obtain
payment,
Columbus Fire seeks to
enforce the payment bond executed by Defendants Lifecycle and
Fidelity in accordance with the Miller Act, 40 U.S.C. §§ 313134.
Defendants
judgment,
Lifecycle
arguing
that
and
Columbus
Fidelity
Fire
did
move
not
for
summary
provide
proper
notice to Lifecycle of the amount owed for the materials and
that notice to Fidelity, as the surety, does not operate as
notice to Lifecycle for purposes of a Miller Act claim.
As
discussed below, the Court finds that genuine factual disputes
exist
as
pursuant
to
whether
to
§ 3133(b)(2).
the
Columbus
Miller
Therefore,
Fire
Act
provided
as
required
Defendants’
adequate
by
motion
40
for
notice
U.S.C.
summary
judgment (ECF No. 22) is denied.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
In determining whether a
genuine
Fed. R.
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
2
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
Viewed in the light most favorable to Columbus Fire, the
record reveals the following.
Lifecycle, as principal contractor on a federal government
construction
project
known
as
the
Wilson
Gym,
executed
the
required Miller Act payment bond with Fidelity as its surety.
Lifecycle subcontracted with Anderson Electric for part of the
work on the project.
Columbus
Fire
Wilson Gym.
to
Anderson Electric then subcontracted with
provide
fire
and
safety
equipment
for
the
After providing the equipment, Columbus Fire claims
that it has not been paid.
On October 25, 2011, Columbus Fire
sent Lifecycle the following letter:
As a subcontractor for Anderson Electric Company,
Columbus Fire & Safety provided the Interior Fire
Alarm and Mass Notification System for two facilities
for
which
LifeCycle
Construction
is
the
Prime
Contractor.
Columbus Fire & Safety has recently learned that
Anderson Electric has closed their business[,] and we
have not received payment.
. . . . Please forward the name and contact
information
of
the
company(ies)
that
hold
the
performance bonds for . . . Wilson Elementary School
Gymnasium, Ft. Benning, GA Contract Number W912HN-10D-0033-0002[.]
Pl.’s
Resp.
to
Defs.’
Mot.
for
Summ.
J.
[hereinafter
Pl.’s
Resp.] Ex. C, Williams Aff. Attach., Letter from T. Williams to
3
M.
Wise
(Oct.
25,
2011),
ECF
No.
25-2
at
29.
responded with its surety’s contact information.
Lifecycle
Williams Aff.
Attach., Email from M. Wise to C. Tucker (Oct. 25, 2011), ECF
No. 25-2 at 30.
Columbus
surety,
Fire
proceeded
to
directly.1
Fidelity,
correspond
As
a
with
result,
Lifecycle’s
Fidelity
sent
Lifecycle two letters on December 8, 2011 informing Lifecycle of
Columbus
Fire’s
undetermined
claim
amount.
against
Pl.’s
the
Resp.
Wilson
Ex.
Gym
B,
bond,
an
from
Letter
of
N.
Kokinakis to S. Colbert (Dec. 8, 2011), ECF No. 25-2 at 5-7;
Pl.’s Resp. Ex. B, Letter from N. Kokinakis to S. Haynes (Dec.
8,
2011),
ECF
determined[.]”).
received
No.
25-2
at
8-9
(“Claimed
Amount:
to
be
Sean Haynes of Lifecycle acknowledged that it
Fidelity’s
“letter
dated
December
8,
2011”
Columbus Fire’s bond claim on December 16, 2011.
about
Pl.’s Resp.
Ex. A, Letter from S. Haynes to N. Kokinakis (July 30, 2012),
ECF No. 25-2 at 2-3.
Fidelity also sent a letter to Columbus Fire on December 8,
2011 regarding its claim.2
In “response to [Fidelity’s] letter
dated December 8, 2011,” Columbus Fire sent the surety a letter
claiming
an
amount
of
$33,951.00
1
and
attaching
supporting
There
is
no
document
representing
Columbus
Fire’s
first
correspondence with Fidelity regarding the Wilson Gym project in the
summary judgment record.
2
The summary judgment record likewise does not contain a document
representing Fidelity’s December 8, 2011 response to Columbus Fire.
4
documentation, which included a Proof of Claim form notarized on
December 13, 2011 stating that it last furnished work on the
project October 3, 2011.
Williams Aff. Attach., Letter from T.
Williams to N. Kokinakis, ECF No. 25-2 at 13; Williams Aff.
Attach., Fidelity Proof of Claim (Dec. 13, 2011), ECF No. 25-2
at 14.3
recover
Columbus Fire
the
filed suit on
$33,951.00
plus
September
prejudgment
21, 2012 to
interest,
service
charges, and attorneys’ fees against Lifecycle’s payment bond
for materials provided for the Wilson Gym project.
Compl. ¶¶ 6-
17, ECF No. 1.
DISCUSSION
Under the Miller Act, a general contractor must furnish a
payment
bond
to
the
construction projects.
United
States
for
40 U.S.C. § 3131.
certain
federal
If a subcontractor
fails to pay a supplier of materials on such a project, that
supplier can sue on the bond by giving written notice to the
general
contractor
within
ninety
days
material for which the claim is made.
of
last
supplying
the
40 U.S.C. § 3133(b)(2);
United States ex rel. Kinlau Sheet Metal Works, Inc. v. Great
3
Columbus Fire claims that this letter was sent on November 22, 2011.
Williams Aff. ¶ 4, ECF No. 25-2 at 12.
The Court notes that even
though the letter is dated November 22, 2011, this date is very likely
a typographical error given that the letter states that it is in
response to a December 8, 2011 letter and contains an attachment
notarized on December 13, 2011.
5
Am. Ins. Co., 537 F.2d 222, 223 (5th Cir. 1976).4
contend
that
Columbus
Fire
has
failed
to
Defendants
properly
notify
Lifecycle of the amount claimed to be due as required by the
Miller Act such that Columbus Fire’s Miller Act claim must fail
as a matter of law.
Columbus Fire responds that a genuine
factual dispute exists as to whether proper notice was given and
that summary judgment is therefore inappropriate.
The issue presented by Defendants’ summary judgment motion
is whether Columbus Fire has pointed to sufficient facts from
which a reasonable jury could conclude that Lifecycle was on
notice of Columbus Fire’s claim against Lifecycle.
To resolve
this issue, it is important to understand the purpose of the
Miller Act notice requirements.
“The purpose of the notice
requirement of the Miller Act is to alert a general contractor
that payment will be expected directly from him, rather than
from
the
directly.”
subcontractor
with
whom
the
materialman
dealt
United States ex rel. Jinks Lumber Co. v. Fed. Ins.
Co., 452 F.2d 485, 487 (5th Cir. 1971) (per curiam).
In order
to effectuate the Miller Act’s purpose of providing a meaningful
remedy
allowed
to
laborers
reasonable
and
suppliers,
flexibility
such notice is given.
courts
regarding
have
the
traditionally
method
by
which
Maccaferri Gabions, Inc. v. Dynateria
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.
6
Inc., 91 F.3d 1431, 1437 (11th Cir. 1996); Houston Fire & Cas.
Ins. Co. v. United States ex rel. Trane Co., 217 F.2d 727, 72930 (5th Cir. 1954).
But as has also been recognized, the notice
requirement
the
contractor
serves
from
being
purpose
held
of
liable
protecting
for
the
remote
debts
general
of
its
subcontractor that the contractor was not made aware of within
the ninety-day deadline.
Jinks, 452 F.2d at 487.
Therefore,
while
permitted
notice
flexibility
may
be
as
to
how
the
is
given, the contents of that notice must be sufficiently specific
to place the contractor on notice of the claim asserted: “‘[i]t
is crucial that the notice state a claim directly against the
general
contractor,
specificity
of
that
amount
the
due,
claim
and
be
stated
with
that
the
claim
specify
subcontractor allegedly in arrears.’”
some
the
Maccaferri, 91 F.3d at
1437 (quoting Jinks, 452 F.2d at 488).
That notice does not,
however, have to be entirely in one writing for it to comply
with
the
Miller
conjunction
determine
Act.
Written
other
writings
with
whether
the
general
notice
or
may
even
be
considered
in
oral
statements
to
contractor
was
adequately
informed, “‘expressly or impliedly, that the supplier is looking
to
the
appears
general
that
contractor
the
nature
for
and
payment
state
of
brought home to the general contractor.’’”
so
the
that
‘it
plainly
indebtedness
was
Id. (quoting Kinlau,
537 F.2d at 223 (quoting Houston, 217 F.2d at 730)); see also
7
Liles Constr. Co. v. United States ex rel. Stabler Paint Mfg.
Co., 415 F.2d 889, 891 (5th Cir. 1969) (finding adequate notice
by
considering
two
letters
together
and
finding
that
overestimated amount of $12,710.61 in letters was substantially
accurate
notice
for
actual
amount
of
$10,288.05
ultimately
claimed).
Here, there is no evidence in the record that Columbus
Fire stated the amount owed in its direct communication with
Lifecycle.
Letter from T. Williams to M. Wise (Oct. 25, 2011).
Columbus Fire insists that despite the clear precedent in this
Circuit
requiring
“that
the
claim
be
stated
with
some
specificity of amount due,” Maccaferri, 91 F.3d at 1437 (quoting
Jinks, 452 F.2d at 488),
Columbus
Fire’s
sufficient.
do so.5
letter
the Court should nevertheless find
to
Lifecycle
Pl.’s Resp. 6, ECF No. 25.
“in
and
of
itself”
The Court declines to
The Court is skeptical of this argument, but does not
need to address it directly in light of other evidence in the
record
from
which
a
reasonable
jury
could
conclude
that
Lifecycle received notice of the amount of the claim within the
ninety-day deadline through its surety, Fidelity.
Columbus Fire
sent Fidelity a Notice of Claim, which Fidelity forwarded to
5
The Court notes that the nonbinding authority cited by Columbus Fire
found sufficient notice based not only on the written notice that
failed to state the amount owed but also the subsequent oral
communications informing the contractor of the amount owed.
See
United States ex rel. Hopper Bros. Quarries v. Peerless Cas. Co., 255
F.2d 137, 144-45 (8th Cir. 1958).
8
Lifecycle on December 8, 2011.
Letter from N. Kokinakis to S.
Colbert (Dec. 8, 2011); Letter from N. Kokinakis to S. Haynes
(Dec. 8, 2011).
Claim
Lifecycle admitted to receiving Columbus Fire’s
Notice
of
indirectly
through
Fidelity
by
December
16,
2011.
Letter from S. Haynes to N. Kokinakis (July 30, 2012).
Sometime after December 13, 2011, Columbus Fire sent Fidelity
two documents, a cover letter and a Proof of Claim form, clearly
specifying that $33,951.00 was due for materials last supplied
October 3, 2011.
Williams Aff. Attach., Letter from T. Williams
to N. Kokinakis; Williams Aff. Attach., Fidelity Proof of Claim
(Dec. 13, 2011).
when
these
Even though there is a factual dispute as to
documents
were
sent
to
Fidelity,
these
facts
sufficiently raise a genuine dispute as to whether Lifecycle was
indirectly informed though Fidelity of the specific amount due
within the ninety-day period ending January 1, 2012.
The
Court
does
not
decide
today
that
notice
to
a
contractor’s surety constitutes notice to the contractor as a
matter of law under the Miller Act, an issue that apparently has
not been decided in this Circuit.6
6
The Court does find, however,
Defendants cite two district court cases outside the Eleventh
Circuit. One finds disputed issues of material fact as to whether the
contractor received timely notice, stating that service to the surety
does not effect service to the general contractor as a matter of law.
Pittsburgh Builders Supply Co. v. Westmoreland Constr. Co., 702 F.
Supp. 106, 109 (W.D. Pa. 1989).
The other finds that the claimant
satisfied its burden to survive summary judgment by pointing to
evidence that it sent notice to the surety since the contractor was in
9
that
communication
contractor’s
considered
general
by
between
surety,
the
and
jury
contractor
the
the
in
its
received
subcontractor
general
claimant,
contractor
determination
sufficient
of
notice,
the
can
be
whether
the
“that
the
supplier is looking to the general contractor for payment” of
some specific amount of a specific subcontractor’s indebtedness.
Maccaferri, 91 F.3d at 1437.
The
present
argument
that
genuine
factual
record
notice
simply
was
dispute
does
deficient
exists
on
not
as
this
a
support
matter
issue.
Defendants’
of
law.
A
Accordingly,
Defendants’ motion for summary judgment must be denied.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for
Summary Judgment (ECF No. 22) is denied.
IT IS SO ORDERED, this 10th day of March, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
bankruptcy. United States ex rel. EPC Corp. v. Travelers Cas. & Sur.
Co. of Am., 423 F. Supp. 2d 1016, 1022-23 (D. Ariz. 2006).
10
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