Fulton v. Kaiser Steel Corporation
| Decision Date | 28 June 1968 |
| Docket Number | No. 25373.,25373. |
| Citation | 397 F.2d 580 |
| Parties | R. H. FULTON, d/b/a R. H. Fulton, Contractor and United States Fidelity & Guaranty Company, Appellants, v. KAISER STEEL CORPORATION and Coppco, Inc., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Pat S. Holloway, David F. Hunt, Dallas, Tex., Thompson, Knight, Simmons & Bullion, Holloway & Hunt, Dallas, Tex., Johnson, Guthrie, White & Stanfield, Dallas, Tex., of counsel, for appellants.
James E. Coleman, Jr., Dallas, Tex., and Charles H. Haines, Jr., Denver, Colo., Robert H. Mow, Jr., of Carrington, Johnson & Stephens, Dallas, Tex., Carrington, Johnson & Stephens, Dallas, Tex., Grant, Shafroth, Toll & McHendrie, Denver, Colo., of counsel, for appellee.
Before THORNBERRY and SIMPSON, Circuit Judges, and ATKINS, District Judge.
This appeal is from an order entered by the United States District Court for the Northern District of Texas dismissing an interpleader suit filed by R. H. Fulton and United States Fidelity & Guaranty Company as against Kaiser Steel Corporation and Coppco, Inc. The district judge is affirmed.
R. H. Fulton contracted with the City of Colorado Springs, Colorado, to construct a water pipe system for the city. United States Fidelity & Guaranty Company as surety and R. H. Fulton as principal executed a performance bond in the amount of $5,512,980.25 in favor of the City which covered the performance by Fulton of his contract with the City. Fulton contracted with Kaiser Steel Corp. whereby the latter agreed to supply Fulton with all the steel and concrete pipe that was to be installed pursuant to Fulton's construction contract with the City of Colorado Springs. Kaiser Steel in turn contracted with Coppco, Inc. for the latter to provide Kaiser with the concrete pipe Kaiser was obligated to supply to Fulton. United States Fidelity & Guaranty as surety and Coppco as principal executed a performance bond in the amount of $1,140,000.00 in favor of Kaiser which covered Coppco's performance of its contract with Kaiser.
On September 28, 1966 Kaiser filed suit in the United States District Court for the District of Colorado against Fulton, U.S.F. & G. and the City, seeking the recovery of an unpaid balance due under the contract between Fulton and Kaiser. Kaiser also alleged that U.S.F. & G. was indebted to it under the Fulton performance bond.
On September 29, 1966, Fulton filed suit in the United States District Court for the Northern District of Texas against Kaiser for damages arising out of breach of contract and breach of warranty with respect to pipe furnished by Kaiser to Fulton.
On January 27, 1967 Coppco filed suit in the District Court of Colorado against Fulton, Kaiser, and U.S.F. & G., claiming an unpaid balance due on the contract between Coppco and Kaiser. Coppco further alleges that U.S.F. & G. is liable to it under the Fulton performance bond for the unpaid balance allegedly owed by Kaiser to Coppco under their contract. Kaiser answered and crossclaimed against Fulton and U.S.F. & G. setting forth its claim for unpaid balance on the Fulton-Kaiser Contract and against U.S.F. & G. on the Fulton performance bond. Kaiser alleged that if it is liable to Coppco, Fulton must hold it harmless, and that U.S.F. & G. must hold Kaiser harmless because of the Fulton performance bond. Kaiser then filed a counterclaim against Coppco and an amended cross-action against U.S.F. & G., alleging that Coppco and U.S.F. & G. must by virtue of the Kaiser-Coppco contract and Coppco performance bond, hold Kaiser harmless for the amounts claimed by Coppco as against Kaiser and for any amounts which Kaiser may be adjudged to be liable to Fulton with respect to pipe supplied by Coppco to Kaiser under their contract.
The complaint for interpleader alleges that both Kaiser and Coppco have asserted adverse claims against Fulton to benefits arising by virtue of the Fulton performance bond, his contract with the City and his contract with Kaiser. It is alleged that there is unnecessary multiplicity of litigation and possible double liability, and additionally, that Kaiser and Coppco are asserting against U.S.F. & G. adverse claims to benefits arising under the Fulton performance bond.
The district judge in dismissing the complaint reasoned:
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