J & S Const. Co., Inc. v. Travelers Indem. Co., 75-1081

Citation520 F.2d 809
Decision Date08 August 1975
Docket NumberNo. 75-1081,75-1081
PartiesJ & S CONSTRUCTION CO., INC., Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Bernard A. Kansky, Boston, Mass., with whom Hillman & Kansky, Boston, Mass., was on brief, for plaintiff-appellant.

Martin E. Greenblatt, Boston, Mass., with whom Jerry E. Benezra, and Kaplan, Soshnick, Greenblatt & Goodman, Boston, Mass., were on brief, for defendant-appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

Plaintiff-appellant (subcontractor) challenges the district court ruling staying its court action against the general contractor's surety, pending arbitration between subcontractor and contractor. The defendant-appellee is the performance bond surety of the general contractor. Subcontractor sued directly on the surety bond in district court. The surety answered and filed a claim for jury trial. It also answered interrogatories and permitted the taking of depositions. It filed no counterclaim. Thirteen months after the suit was instituted, the surety sought a stay pending arbitration provided for under the construction contract. The subcontractor charged that the surety, not a party to the construction contract, could not assert any right to insist on arbitration thereunder and that even if it could it had waived any such right by its conduct in this suit. *

The district court ruled that the delay in requesting arbitration and the defensive response to the filed claim did not constitute waiver. This ruling is supported by the record, there having been no showing of prejudice. It is also in accord with the policy favoring arbitration. Hilti v. Oldach, 392 F.2d 368, 372 (1st Cir. 1968).

The suit was based on subcontractor's contractual and quasi-contractual rights against the principal. The contract was explicitly incorporated by reference in the surety bond. In Warren Bros. Co. v. Cardi Corp., 471 F.2d 1304 (1st Cir. 1973), an analogous situation, suit was brought on a bond rather than on the subcontract. The plaintiff argued that the arbitration provisions of the subcontract were inapplicable. We ruled that in our view Massachusetts would hold "that a contractual obligation to arbitrate cannot be rendered meaningless by the expedient of bringing suit on a statutory payment bond." Id. at 1308. Although both the surety and the contractor were named parties in that suit, ...

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55 cases
  • Page v. Moseley, Hallgarten, Estabrook & Weeden, Inc.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 26 Noviembre 1986
    ...defendants cannot at that point be said to have waived their right to compel arbitration. See J & S Construction Co., Inc. v. Travelers Indemnity Co., 520 F.2d 809 (1st Cir.1975) (no showing of prejudice by plaintiffs, and hence, no waiver by defendants, despite 13 month delay in seeking ar......
  • Hartford Acc. and Indem. Co. v. Scarlett Harbor Associates Ltd. Partnership
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1995
    ...Thomas O'Connor & Company v. Insurance Co. of North America, 697 F.Supp. 563, 564-65 (D.Mass 1988); J & S Construction Co., Inc. v. Travelers Indemnity Co., 520 F.2d 809 (1st Cir.1975). These opinions, however, do not indicate whether the bonds at issue contained an express Page 296 regardi......
  • MPACT CONST. GROUP LLC v. Superior Concrete Constructors, Inc.
    • United States
    • Indiana Supreme Court
    • 4 Febrero 2004
    ...the language in that case is conclusory and as such, does not aid MPACT's argument. Additionally, MPACT cited J & S Constr. Co. v. Travelers Indem. Co., 520 F.2d 809 (1st Cir.1975), but it is not on ...
  • Arbitration between S&R Co. and Latona Trucking
    • United States
    • U.S. District Court — Northern District of New York
    • 8 Septiembre 1997
    ...bond that incorporates a contract also incorporates any arbitration clause contained in that contract. J & S Constr. Co. v. Travelers Indemnity Co., 520 F.2d 809, 810 (1st Cir.1975); Maxum Foundations Inc. v. Salus Corp., 779 F.2d 974, 980-81 (4th Cir. 1985); J.S. & H. Constr. Co. v. Richmo......
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1 books & journal articles
  • Arbitration Waiver and Prejudice.
    • United States
    • Michigan Law Review Vol. 119 No. 2, November 2020
    • 1 Noviembre 2020
    ...109, 121 (3d Cir. 2012) (linking delays caused by litigation activity to prejudice), with J & S Constr. Co. v. Travelers Indem. Co., 520 F.2d 809, 810 (1st Cir. 1975) (per curiam) (finding no waiver after a thirteen-month delay because there was "no showing of (102.) See, e.g., Navieros......

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