United States of America, for the use and benefit of Ash Equipment Co., Inc. et al v. Morris, Inc. et al
ORDER denying 235 Motion in Limine. Signed by US Magistrate Judge Veronica L. Duffy on 5/15/2017. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA, FOR
THE USE AND BENEFIT OF ASH
EQUIPMENT CO., INC. D/B/A
AMERICAN HYDRO; AND ASH
EQUIPMENT CO., INC., A MARYLAND
DEFENDANT MORRIS, INC.'S
MOTION IN LIMINE CONCERNING
MILLER ACT DAMAGES
DOCKET NO. 235
MORRIS, INC., A SOUTH DAKOTA
CORPORATION; UNITED FIRE AND
CASUALTY COMPANY, AN IOWA
CORPORATION; AND RED WILK
CONSTRUCTION, INC., A SOUTH
This is a Miller Act action (40 U.S.C. § 3133(b)(3)(B)), brought by the
United States of America for the use and benefit of Ash Equipment Company,
Inc., doing business as American Hydro (“Hydro”). Defendants are the general
contractor on the project, Morris, Inc. (“Morris”); the company that issued the
payment bond, United Fire and Casualty Company (“UF&CC”); and
hydrodemolition subcontractor Red Wilk Construction, Inc. (Red Wilk).
Pending before the court is a motion in limine filed by Morris seeking to prohibit
Hydro from introducing certain elements of damages at trial on the grounds
that such elements of damages are not allowed under the Miller Act. See
Docket No. 235. This matter is before this court on the consent of all parties
pursuant to 28 U.S.C. § 636(c).
Defendant Morris contracted with the United States Army Corps of
Engineers (“the Corps”) to do work on the Fort Randall Dam spillway at
Pickstown, South Dakota, in September, 2013. Morris obtained a Miller Act
payment bond on the project from defendant UF&CC in the amount of
$7,472,670.25. The payment bond obligated Morris and UF&CC jointly and
severally to guarantee payment to any subcontractor of Morris’ who furnished
labor and materials on the project as well as to persons who had a direct
contractual relationship with Morris on the project.
The project plans and specifications of the Corps required concrete
removal using hydrodemolition methods. Morris subcontracted this work to
Red Wilk in October, 2013. Red Wilk in turn subcontracted with Hydro in
April, 2014. Red Wilk promised to pay Hydro for Hydro’s work on the project
within 10 working days after Morris paid Red Wilk on monthly progress
Hydro began work on the project in May, 2014. It removed its equipment
and labor from the project work site on August 25, 2014. Hydro brought suit
on August 22, 2014, after Red Wilk allegedly failed to pay for certain claims
made by Hydro for completed work on the project. Hydro gave notice to Morris
that it had not been paid. In its complaint, Hydro asserts a common law
breach of contract claim against Red Wilk, an equitable claim in quantum
meruit against Morris, and a Miller Act claim against the UF&CC bond.
Morris now moves for an order in limine prohibiting Hydro from
introducing evidence concerning certain damages at trial. Specifically, Morris
seeks to prevent the jury from hearing Hydro's evidence as to unpaid unit price
work, acceleration, lost productivity, unplanned executive oversight and
management, lost profits and overhead, and "indirect equipment." See Docket
No. 236. The basis for the motion is Morris' argument that these categories of
damages are unavailable under the Miller Act.
Of course, this argument ignores the fact that Hydro has asserted a
common law breach of contract claim against Red Wilk and a claim for
quantum meruit against Morris. Thus, the Miller Act and its restrictions on the
types of damages available is not the sole source of determining what evidence
as to damages will be relevant at trial. Morris does not address in its motion
whether the categories of damages at issue would be recoverable under Hydro's
contract claim or quantum meruit claim.
Hydro resists Morris' motion on procedural grounds. It argues that
Morris' in limine motion is really a motion for partial summary judgment as to
Hydro's damages. As such, Hydro argues the court should not grant the
motion because Morris' allegedly dispositive motion was not timely filed. This
procedural argument appears to leave open the possibility that this court
would allow the jury to hear improper evidence as to damages solely because
Morris did not make its motion in the right form or at the right time. Such is
not the case. This court has a duty to correctly instruct the jury as to the law
regarding damages allowed under the Miller Act claim, regardless of whether
Morris or any other party has made that law a subject of an earlier motion.
Substantively, Hydro merely incorporates by reference its arguments
about damages from its reply to its own motion for partial summary judgment.
See Docket No. 244 at p.9, incorporating arguments made at Docket No. 216 at
pp. 29-32. Inasmuch as that partial summary judgment remains to be
decided, this court will defer any substantive decision about allowable Miller
Act damages to a future opinion ruling on that partially dispositive motion.
CONCLUSION AND ORDER
Good cause not appearing, it is hereby
ORDERED that Morris' motion in limine as to damages allowed under the
Miller Act [Docket No. 235] is denied.
DATED May 15, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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