UNITED STATES OF AMERICA v. ANDERSON ELECTRIC INC et al, No. 4:2012cv00261 - Document 28 (M.D. Ga. 2014)
Court Description: ORDER denying 21 Motion for Summary Judgment. Ordered by U.S. District Judge CLAY D LAND on 03/10/2014 (jcs)
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UNITED STATES OF AMERICA v. ANDERSON ELECTRIC INC et al Doc. 28 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 Community Plaintiff 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 Dockets.Justia.com 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). to Notice [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
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