Allied Steel Construction Company LLC v. Simmons Construction LLC et al

Filing 18

ORDER granting 11 Hudson Insurance Company's Motion to Dismiss and dismissing all claims against Hudson Insurance Company (Count I of the Complaint) (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 3/5/2013. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
for and on behalf of ALLIED STEEL
CONSTRUCTION COMPANY, LLC,
an Oklahoma limited liability company,
Plaintiff,
vs.
SIMMONS CONSTRUCTION, LLC,
an Arizona limited liability company, and
HUDSON INSURANCE COMPANY, a
Delaware corporation,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-12-617-M

ORDER
Before the Court is Hudson Insurance Company’s Motion to Dismiss, filed August 10, 2012.
Allied Steel Construction timely filed its response, and on August 21, 2012, Hudson Insurance
Company’s reply was filed. Based upon the parties’ submissions, the Court makes its determination.
Plaintiff Allied Steel (“Allied”), a limited liability company with its principal place of
business in the City of Oklahoma City, brings this action against defendants Simmons Construction
(“Simmons”), a limited liability company with its principal place of business in the City of
Scottsdale, Arizona, and Hudson Insurance Company (“Hudson”), a surety insurance and bonding
company. Allied bring this action pursuant to the provisions of the Miller Act, 40 U.S.C. § 3131
et seq., to recover $30,040 plus interest thereon and costs including reasonable attorney’s fees from
Simmons and Hudson under Payment Bond No. HAS-SW-0013 (the “payment bond”).
In Allied’s Complaint, filed on May 30, 2012, reference is made to a written purchase order
whereby Allied agreed to perform work on a structural steel project with respect to a certain steel
erection project on the Fort Sill Military Base. Allied contends it performed and provided $30, 040

worth of labor and materials to Simmons. Allied also contends Simmons agreed to pay the total sum
to Allied in “interim payments based on work progress.” See Complaint at par. 13. Allied alleges
it performed all of the labor and materials required under the subcontract agreement between
Simmons and Allied. Allied contends it then made due demand upon Simmons and Hudson for
payment under the terms of the payment bond and was not paid.
Hudson contends the purchase order and invoices reflecting the interim payments referenced
in Allied’s Complaint reflect that the last day that Allied actually performed labor and/or provided
material to Simmons on the project was May 12, 2011. See Hudson’s Motion to Dismiss, Exhibits
1-6. Hudson further contends because Allied did not bring suit by May 12, 2012, the claim for
recovery under the Miller Act Payment Bond (Count I) is untimely and should be dismissed for
failure to state a claim. Hudson asserts that Allied is barred from recovery since it did not file its
complaint within one year after the date the last material and labor was supplied and performed
pursuant to the limitations provisions of the Miller Act.
Generally, the Miller Act provides:
(b) Right to bring a civil action.-(1) In general. – Every person that has furnished labor or material in
carrying out work provided for in a contract for which a payment
bond is furnished under section 3131 of this title and that has not paid
in full within 90 days after the day on which the person did or
performed the last of the labor or furnished or supplied the material
for which the claim is made may bring a civil action on the payment
bond for the amount unpaid at the time the civil action is brought and
may prosecute the action to final execution and judgment for the
amount.
. . .
(4) Period in which action must be brought.-- An action brought
under this subsection must be brought no later than one year after the
day on which the last of the labor was performed or material was
supplied by the person bringing the action.

40 U.S.C. § 3133 (1) and (4).
Because the last furnished labor performed or material provided in carrying out the instant
project occurred on May 12, 2011, more than one year prior to the filing of this lawsuit on May 30,
2012, the Court finds that Allied’s recovery under the payment bond is time barred under the
requirements of the Miller Act, 40 U.S.C. § 3131 et seq.
Accordingly, for the reasons set forth above, the Court GRANTS Hudson Insurance
Company’s Motion to Dismiss [docket no. 11] and DISMISSES all claims against Hudson Insurance
Company (Count I of the Complaint).
IT IS SO ORDERED this 5th day of March, 2013.