State ex rel. Robert Warren Trucking, LLC v. Smith & Smith Excavation, Inc.
| Decision Date | 08 September 2016 |
| Docket Number | A156485 |
| Citation | 386 P.3d 112,280 Or.App. 766 |
| Parties | State of Oregon, for the use and benefit of Robert Warren Trucking, LLC, an Oregon limited liability company; and Robert Warren Trucking, LLC, an Oregon limited liability company, Plaintiffs–Respondents Cross–Appellants, v. Smith & Smith Excavation, Inc., a Washington corporation; S.U.B.I.; USA Building, Inc., a Delaware corporation; Fidelity and Deposit Company of Maryland, a Maryland corporation; and North American Specialty Insurance Company, a New Hampshire corporation; Defendants–Appellants Cross–Respondents, and West Coast Mining & Crushing, Inc., an Oregon corporation, Defendant. |
| Court | Oregon Court of Appeals |
280 Or.App. 766
386 P.3d 112
State of Oregon, for the use and benefit of Robert Warren Trucking, LLC, an Oregon limited liability company; and Robert Warren Trucking, LLC, an Oregon limited liability company, Plaintiffs–Respondents Cross–Appellants,
v.
Smith & Smith Excavation, Inc., a Washington corporation; S.U.B.I.; USA Building, Inc., a Delaware corporation; Fidelity and Deposit Company of Maryland, a Maryland corporation; and North American Specialty Insurance Company, a New Hampshire corporation; Defendants–Appellants Cross–Respondents,
and
West Coast Mining & Crushing, Inc., an Oregon corporation, Defendant.
A156485
Court of Appeals of Oregon.
Argued and submitted May 19, 2015.
September 8, 2016
D. Brent Carpenter argued the cause for appellant-cross-respondent. With him on the briefs were Joseph A. Yazbeck, Jr., and Yazbeck, Cloran & Bowser, PC.
Justin Stark, Portland, argued the cause for respondent-cross-appellant. With him on the briefs was Stark Law Office LLC.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.
LAGESEN, J.
Plaintiff Robert Warren Trucking, LLC (Warren) provided rock-hauling services in connection with a construction project for the Port of Tillamook Bay (the Port), but did not receive full payment for those services. That led to this case, in which Warren seeks to collect the unpaid amounts from two payment bonds associated with the Port project. The trial court found in Warren's favor on those bond claims and defendants Smith & Smith Excavation, Inc. (Smith), Skanska USA, Inc. (Skanska), Fidelity and Deposit Company of Maryland, Inc. (Fidelity), and North American Specialty Insurance, Co. (North American) now appeal from a limited judgment for $39,712.85 against them on those claims. They assign error to the trial court's denial of their motions for directed verdicts on the two bond claims, arguing that the trial court erred in concluding that certain amounts were recoverable against the two bonds.1 Warren has cross-appealed, assigning error to the trial court's computation of damages. For the reasons that follow, we affirm on the appeal and the cross-appeal.2
BACKGROUND
A. Substantive Facts
In August 2011, the Port entered into a construction contract with Skanska for the construction of Project 3.2, an industrial business park on Port property. Under the contract, Skanska was the general contractor on the project. As required of successful bidders on a public improvement
contract by Oregon's Little Miller Act, ORS 279C.380 to 279C.625,3 Skanska executed and delivered a performance bond and a payment bond to the Port. Fidelity provided those bonds.
Skanska then subcontracted with defendant Smith to perform the initial "sitework and demolition" for the project. Smith's job under the subcontract was, according to its general manager Steven Smith, a "classic cut and cover pad for three large buildings" that required Smith to "clear the site, cut it to subgrade, roll fabric on it, put shot rock over the top of it or jaw-run [rock] and—and go from there." In that contract, Smith agreed to provide the project with, among other
things, "[s]tructural excavation and backfill" and
"all equipment, components, systems, materials * * * required to perform the Work and make it complete, functional and/or operational, notwithstanding the fact that each such service or item may not be expressly mentioned in the Contract Documents."
The contract required that Smith provide a performance bond to secure its performance of its obligations to Skanska under the contract, and a payment bond to secure the payment of its "sub-subcontractors." North American issued those bonds.
As noted, Smith's work for Skanska required it to obtain suitable rock. Specifically, project specifications required Smith to use four-inch and one-inch rock. The Kilchis quarry, which was close to the project site, contained rock suitable for use in the project. To obtain that rock and process it to appropriate size, Smith contracted with defendant West Coast Mining & Crushing, Inc. (West Coast),4 which operates a portable rock crusher. According to the original agreement between West Coast and Smith, West Coast would arrange for rock to be blasted from the quarry
and to be hauled to the project site. At the site, West Coast would set up its portable crusher to crush the blasted rock to the sizes required for the project. The agreement further specified that West Coast would pass the invoices for blasting and hauling to Smith, which would pay them and then deduct those amounts from amounts owed by Smith to West Coast.
West Coast then contracted with Warren, plaintiff in this case, to haul rock from the quarry to the crusher and the project site. During the first week of the project, Skanska alerted West Coast that it would have to comply with prevailing wage rates and also that its employees were required to report to the job site at the beginning of the work day for calisthenics. West Coast had not bid the project as a prevailing wage project, and the requirement that it pay prevailing wages meant that its job for Smith "would have just been a money loser from the get-go." For that reason, after consulting with Smith, West Coast decided to move the crusher off the project site in the hopes of avoiding the wage and calisthenics obligations. It looked for, and found, suitable space on Port property about a half mile from the project site. It then subleased a portion of the property from a person who was leasing it from the Port, and leased another portion of the property directly from the Port.
The decision to move the crusher away from the project site meant that Warren's job of hauling rock to the project site had two legs: (1) hauling unprocessed rock from the quarry to the new crusher site; and (2) hauling crushed rock from the crusher site to the project site. Initially, West Coast told Warren that it would pay for both parts of the haul. Eventually, however, West Coast decided it would no longer pay Warren for hauling rock from the crusher site to the project site, given that the two-legged haul had not been contemplated at the time that West Coast bid on the project, and was not supposed to be part of the job. Smith then notified Warren that Smith would take over the responsibility for paying Warren for the hauls from the crusher to the project site.
Warren hauled unprocessed rock from the quarry to the crusher site until November 19, 2011. However, Warren
hauled the processed gravel from the crusher site to the project site, and performed other hauling activity directly for Smith, through early May 2012. As of that date, Warren was owed $40,426.51 for hauling unprocessed rock from the quarry to the crusher site and $28,813.19 for hauling that it performed for Smith, including hauling from the crusher to the project site.
B. Procedural Facts
On June 6, 2012, Warren provided Skanska with a single Notice of Bond Claim. The notice provided that Warren "has a claim for services rendered and/or materials furnished on the * * * project in the sum of
$98,750.06." However, the notice did not segregate the amounts attributable to Warren's hauls for West Coast from the amounts attributable to Warren's hauls for Smith. Then, on August 1, 2012, Warren sent an updated Notice of Claim to the Port, Skanska, Smith, and West Coast, which stated that Warren "is owed the principal sum of $95,291.55, plus interest, costs, and fees." Warren attached the unpaid invoices to both West Coast and Smith to the August notice. Finally, on October 5, 2012, Warren filed a complaint in the Tillamook County Circuit Court. Warren's complaint included two bond claims—one against Skanska's bond and the other against Smith's—as well as claims for breach of contract and quantum meruit against Smith and West Coast, respectively.
West Coast stipulated to entry of judgment against it on the claims against it, and the case proceeded to trial on the claims against Skanska, Fidelity, Smith and North American. After Warren presented its case, defendants moved for directed verdicts on the bond claims. They argued that (1) the federal Miller Act—not Oregon's Little Miller Act—governed Warren's claim against the Skanska bond and barred Warren's recovery against that bond; (2) Warren was not a proper claimant on either bond; and (3) the Notice of Bond Claim was neither timely nor proper under the Little Miller Act, because Warren "gave notice for both West Coast Mining and Smith & Smith Excavation without any distinction as to which one was * * * appropriate." The trial court denied defendants' motion. Defendants renewed their motion after presenting their case; the trial court again denied it.
After trial, the trial court issued a letter opinion. In it, the trial court found in favor of Warren on all claims, concluding, among other things,...
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