UNITED STATES OF AMERICA v. ANDERSON ELECTRIC INC et al
Filing
28
ORDER denying 21 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-261 (CDL)
*
O R D E R
As a subcontractor on the federal construction project for
the
New
Soldier
Plaintiff
Community
Columbus
(“Columbus
Fire”)
Fire
&
provided
Center
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.
failed
to
primary
pay
for
contractor
the
for
equipment,
the
When Anderson Electric
Columbus
project,
Fire
Lifecycle
notified
the
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. 21) 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 New Soldier Plaza, executed
the
required
surety.
of
the
Miller
payment
bond
with
Fidelity
as
its
Lifecycle subcontracted with Anderson Electric for part
work
subcontracted
equipment
Act
on
the
project.
with
Columbus
the
project.
for
Fire
Anderson
to
After
provide
providing
Columbus Fire claims that it has not been paid.
Electric
fire
the
and
then
safety
equipment,
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 . . . New Soldier Community
Center, Ft. Benning, GA Contract Number W912HN-09-D0012-0004[.]
Pl.’s
Resp.
to
Defs.’
Mot.
for
Summ.
J.
[hereinafter
Pl.’s
Resp.] Ex. D, Williams Aff. Attach., Letter from T. Williams to
3
M.
Wise
(Oct.
25,
2011),
ECF
No.
24-2
at
32.
responded with its surety’s contact information.
Lifecycle
Williams Aff.
Attach., Email from M. Wise to C. Tucker (Oct. 25, 2011), ECF
No. 24-2 at 33.
The next day, Columbus Fire notified Lifecycle’s surety,
Fidelity, of its claim relating to the New Soldier Community
Center.
Letter from T. Williams to Fidelity and Deposit Company
of Maryland (Oct. 26, 2011), ECF No. 22-4.
Fidelity responded
to Columbus Fire about its claim on November 17, 2011.
Pl.’s
Resp. Ex. C., Letter from N. Kokinakis to T. Williams (Nov. 17,
2011), ECF No. 24-2 at 8-10.
On November 22, 2011, Columbus
Fire responded to Fidelity claiming an amount of $28,561.30 and
attached
form
supporting
notarized
on
documentation
including
November
2011
22,
a
Proof
stating
furnished work on the project September 29, 2011.
that
of
it
Claim
last
Williams Aff.
¶ 4, ECF No. 24-2 at 13; Williams Aff. Attach., Letter from
Columbus Fire & Safety Equipment Company, Inc. to N. Kokinakis
(Nov. 22, 2011), ECF No. 24-2 at 14; Williams Aff. Attach.,
Fidelity Proof of Claim (Nov. 22, 2011), ECF No. 24-2 at 34.
Fidelity also sent Lifecycle a letter on November 17, 2011
informing Lifecycle of Columbus Fire’s claim against the New
Soldier Community Center bond, of an undetermined amount.
Pl.’s
Resp. Ex. B, Letter from N. Kokinakis to S. Haynes (Nov. 17,
4
2011),
ECF
No.
determined[.]”).
24-2
at
5-6
(“Claimed
Amount:
to
be
On December 20, 2011, Lifecycle responded:
Lifecycle
is
aware
of
a
disputed
and
alleged
outstanding unpaid account by its subcontractor,
Anderson Electric, for labor and materials supplied to
Anderson Electric by Columbus Fire. This claim covers
work on Lifecycle project #51304 at the Fort Benning
New Soldier Community Center.
Columbus Fire has
provided us with an invoice copy dated 9/9/11 for
$27,134.00 for work to install a new fire alarm
system.
Pl.’s Resp. Ex. A, Letter from M. Wise to N. Kokinakis (Dec. 20,
2011), ECF No. 24-2 at 2.
filed
suit
to
recover
On September 27, 2012, Columbus Fire
$28,561.30
plus
prejudgment
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
5
Am. Ins. Co., 537 F.2d 222, 223 (5th Cir. 1976). 1
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
1
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
remote
the
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
that
the
subcontractor allegedly in arrears.’”
stated
claim
with
some
specify
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
evidence
in
the
record
that
could
show
Columbus Fire gave notice to Lifecycle on October 25, 2011 that
it
is
seeking
payment
from
Lifecycle’s
bond
for
Electric’s unpaid debt on the New Soldier project.
T. Williams to M. Wise (Oct. 25, 2011).
Anderson
Letter from
While this letter did
not specify the amount due, there is evidence showing that at
some
point
before
December
20,
2011
Columbus
Fire
informed
Lifecycle that the amount owed by Anderson Electric was at least
$27,134.00.
2011).
Letter
from
M.
Wise
to
N.
Kokinakis
(Dec.
20,
A reasonable jury could find based on these two letters
that Columbus Fire gave Lifecycle notice of its claim directly
against
Lifecycle
“with
some
specificity
of
amount
due.”
Maccaferri, 91 F.3d at 1437 (quoting Jinks, 452 F.2d at 488).
In addition, there is evidence in the record that could support
Columbus Fire’s argument that Lifecycle received notice of its
entire
claim
for
$28,561.30
within
through its surety, Fidelity.
Notice
of
Claim,
which
the
ninety-day
deadline
Columbus Fire sent Fidelity a
Fidelity
8
forwarded
to
Lifecycle
on
November 17, 2011.
17,
2011)
(“Copies
enclosed.”).
Letter from N. Kokinakis to S. Haynes (Nov.
of
this
Lifecycle
claimant’s
admitted
November 17, 2011 correspondence.
Kokinakis (Dec. 20, 2011).
Notice
to
[of
Claim
receiving
is]
Fidelity’s
Letter from M. Wise to N.
On November 22, 2011, Columbus Fire
sent Fidelity a cover letter and Proof of Claim form clearly
specifying that $28,561.30 was due for all materials, the last
of which were supplied September 29, 2011.
Letter from Columbus
Fire & Safety Equipment Company Inc. to N. Kokinakis (Nov. 22,
2011); Fidelity Proof of Claim (Nov. 22, 2011).
These facts
sufficiently raise a genuine dispute as to whether Lifecycle was
indirectly informed though Fidelity within the ninety-day period
ending December 28, 2011 of the additional $1,427.30 due.
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. 2
The Court does find, however,
that
subcontractor
communication
contractor’s
between
surety,
and
the
the
2
general
claimant,
contractor
can
the
be
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
bankruptcy. United States ex rel. EPC Corp. v. Travelers Cas. & Sur.
Co. of Am., 423 F. Supp. 2d 1016, 1022-23 (D. Ariz. 2006).
9
considered
general
by
the
jury
contractor
in
its
received
determination
sufficient
of
notice,
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
argument
genuine
present
that
record
notice
factual
was
dispute
simply
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. 21) is denied.
IT IS SO ORDERED, this 10th day of March, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?