Adamo Equipment Rental Co. v. Mack Development Co., Inc.
| Decision Date | 06 May 1983 |
| Docket Number | Docket No. 52793 |
| Citation | 122 Mich.App. 233,333 N.W.2d 40 |
| Parties | ADAMO EQUIPMENT RENTAL COMPANY, Plaintiff-Appellant, v. MACK DEVELOPMENT COMPANY, INC., Defendant, and The Fireman's Insurance Company of Newark, New Jersey, Defendant-Appellee. 122 Mich.App. 233, 333 N.W.2d 40 |
| Court | Court of Appeal of Michigan — District of US |
[122 MICHAPP 234] Frank G. Garavaglia, Detroit, for plaintiff-appellant.
Kerr, Russell & Weber by Daniel G. Beyer, Detroit, for defendant-appellee.
Before CAVANAGH, P.J., and RILEY and HOEHN, * JJ.
The plaintiff, Adamo Equipment Rental Company, appeals an order of accelerated judgment which the Wayne County Circuit Court entered on July 9, 1980, in favor of the defendant-appellee, the Fireman's Insurance Company of Newark, New Jersey.
One of the defendants, Mack Development Company,[122 MICHAPP 235] Inc., was awarded a construction contract in the gross sum of $1,430,000 by the City of Inkster. The defendant-appellee, The Fireman's Insurance Company of Newark, executed a performance bond and a payment bond in the full amount of the contract. The general contractor, Mack Development Company, Inc., awarded the plaintiff, Adamo Equipment Rental Company, a subcontract worth $55,000 gross.
The last payment Mack Development Company made to plaintiff, Adamo, was on November 19, 1976.
Defendant Mack Development Company defaulted while the contract was incomplete and was replaced by a new contractor chosen by defendant Fireman's Insurance. This event occurred on August 9, 1977. The last payment made to defendant Mack Development Company was also made on the 9th day of August, 1977.
Plaintiff filed suit to recover the unpaid portion of its subcontract with defendant Mack on February 13, 1979. 1
The final payment on the construction contract was made by the City of Inkster on January 31, 1980.
Defendant Mack performed on the contract a period of 15 months; the substitute contractor performed for a period of 32 months.
Defendant Fireman's Insurance moved for an accelerated judgment on the basis that the statute of limitations barred plaintiff's claim. Defendant [122 MICHAPP 236] Fireman's contention was based on M.C.L. Sec. 129.209; M.S.A. Sec. 5.2321(9), which reads, in part, as follows:
"* * * No action shall be commenced after the expiration of one year from the date on which final payment was made to the principal contractor."
Defendant Fireman's contends that Mack Development was the principal contractor within the meaning of the statute and that the last payment under the contract to Mack was made on August 9, 1977. Ergo, any claim for materials or labor furnished to the project which was made subsequent to August 8, 1978, is barred by the cited statute.
The trial court granted defendant's motion for accelerated judgment and plaintiff appeals as a matter of right.
The long-standing mechanics' lien law does not apply to public buildings. Ford v. State Bd. of Education, 166 Mich. 658, 132 N.W. 467 (1911). Contractors and materialmen on public buildings were denied the security afforded when the identical work or materials were provided to the private sector. To fill this interstice in the mechanics' lien law, the Legislature adopted 1963 P.A. 213, the statute now under consideration.
The purpose and intent of Act 213 is to safeguard and protect contractors and materialmen in the public sector. The statute is remedial in nature and, therefore, should be liberally construed. Wallich Lumber Co. v. Golds, 375 Mich. 323, 134 N.W.2d 722 (1965).
The disposition of this case depends on the definition of the terms "principal contractor" and "final payment". No definition of these terms appear in the act. The Court has not found, nor has [122 MICHAPP 237] it been cited to, any Michigan authority defining such terms. To this extent, the case is one of first impression in this state.
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