Howard Hill, Inc. v. George A. Fuller Company, Inc.
| Decision Date | 30 January 1973 |
| Docket Number | No. 72-1954.,72-1954. |
| Citation | 473 F.2d 217 |
| Parties | HOWARD HILL, INC., Plaintiff-Appellant, v. GEORGE A. FULLER COMPANY, INC., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas R. Burnside, Jr., Augusta, Ga., Paul J. Walstad, Vienna, Va., for plaintiff-appellant.
Samuel C. Waller, Augusta, Ga., Luther P. House, Jr., Kent P. Smith, Atlanta, Ga., for defendants-appellees.
Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.
George A. Fuller Company (Fuller), as prime contractor, contracted with the Richmond County Hospital Authority to build a university hospital in Augusta, Georgia. By a subcontract with Fuller, Howard Hill, Inc. (Hill) agreed to supply labor and materials for the hospital project. During construction of the hospital a dispute arose between Hill and Fuller, and because of it Hill brought this diversity action against Fuller and his bondsman to recover over $77,000 for breach of contract, the value of labor and materials furnished, and attorney fees. Fuller moved for a stay of proceedings in the district court pending arbitration as provided in the subcontract, and the Court granted this motion. The propriety of the stay order is at issue on this appeal.
Urging us to vacate the stay, appellant Hill argues first that it is not bound by the prime contract arbitration provision because the language of the subcontract was ineffective to incorporate it by reference. In a sister case to the instant one, J. S. & H. Construction Company v. Richmond County Hospital Authority, 5th Cir. 1973, 473 F.2d 212, decided today, we have considered subcontract language identical to that used in the Fuller-Hill subcontract and have held it was sufficient to incorporate the prime arbitration provision into the subcontract there. For the reasons expressed in the J. S. & H. Construction Company case, we hold that the prime contract arbitration provision was incorporated into the subcontract in this case and is binding on Hill.
Appellant Hill's second contention goes beyond the J. S. & H. Construction Company case. Pointing to events which occurred after the contract dispute arose, Hill argues that Fuller waived its right to insist on arbitration under the incorporated clause. Fuller denies any such waiver and argues in addition that correspondence between Hill and Fuller established a new contract under which Hill agreed to be bound by the results of arbitration between Fuller and the Hospital Authority. The district court found Fuller had not waived its right to insist on arbitration and did not construe the post-dispute correspondence as a new contract. We find no occasion to disturb these conclusions.
It is well settled that a party to a contract may waive the right to insist on compliance with an arbitration clause, Burton-Dixie Corporation v. Timothy McCarthy Construction Company, 5th Cir. 1971, 436 F.2d 405, so that that party may no longer assert the arbitration clause...
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