Thomas v. A.G. Electrical, Inc., No. ED 92109 (Mo. App. 11/24/2009)
| Decision Date | 24 November 2009 |
| Docket Number | No. ED 92109,ED 92109 |
| Parties | GREG THOMAS, et al., Appellants, v. A.G. ELECTRICAL, INC., et al., Defendants, and CONTRACTORS BONDING AND INSURANCE COMPANY, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Louis County, Honorable Melvyn W. Wiesman.
Workers on a public-works project sued to recover unpaid prevailing wages from the bonding company that had issued two bonds on the project. The trial court dismissed the workers' claims. Because we hold that the Performance Bond issued by the bonding company covers the workers' claim, and because we conclude that the notice-of-claim provision in the Payment Bond issued by the bonding company does not negate the workers' claim, we reverse and remand.
Abdelmalek Construction, L.L.C., a general contractor in the building construction industry, contracted with the St. Charles School District to complete work on the Lewis and Clark Vocational Technical School Renovations and Additions Project. Prior to commencing work on the project, Abdelmalek Construction, as the general contractor, purchased two bonds from Contractors Bonding and Insurance Company, to insure the general contractor's work on the project. These two bonds, entitled and referred to as the Performance Bond and the Payment Bond, are at the heart of the instant dispute.
After securing the contract with the school district, the general contractor entered into a contract with A.G. Electrical, Inc., an electrical contractor, to perform electrical work on the Lewis and Clark project. The plaintiff-workers in this action performed work on the Lewis and Clark project as employees of this electrical subcontractor.1 The electrical contractor paid the workers, but failed to pay the workers the prevailing wage for their work on the project.2 The difference between the wages and benefits received by the workers, and the wages and benefits they should have received under Missouri's Prevailing Wage Law, amounted to $20,364.24.
The workers, by letter dated May 29, 2007, made alternative claims on the Performance Bond and the Payment Bond, to recover the prevailing wages that had not been paid to them for their work on the project. The bonding company denied the workers' claims. Consequently, the workers filed suit against the bonding company, which was the surety on the two bonds, to recover their unpaid wages, as well as statutory damages and attorneys' fees.3
The bonding company filed a motion to dismiss the workers' two claims for failure to state a cause of action. As to the Performance Bond, the company argued that the workers' claim should be dismissed because the workers had not timely sued and because the bond did not cover the workers' prevailing-wage claim. The company argued the Performance Bond only insured the completion of work on the Lewis and Clark project, not payment of labor or the prevailing wage because the Payment Bond had been issued for those purposes. As to the workers' claim against the Payment Bond, the company argued that the workers' claim was time-barred, and thus should be dismissed, because the workers did not comply with the ninety-day notice requirement set forth in that bond.
The trial court granted the bonding company's motion and dismissed the workers' claims. The court reasoned that the workers' prevailing-wage claim was not covered by the Performance Bond, and that their claim on the Payment Bond was untimely pursuant to the ninety-day notice provision in that bond. The workers appeal, alleging the trial court erred in dismissing their two claims. We shall address the workers' claim against each bond in turn.
Appellate review of a trial court's grant of a motion to dismiss is de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). "A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition." Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993); Stein v. Novus Equities Co., 284 S.W.3d 597, 601 (Mo. App. E.D. 2009). When this Court reviews the dismissal of a petition for failure to state a claim, we treat the facts contained in the petition as true and construe them liberally in favor of the plaintiff. Lynch, 260 S.W.3d at 836; Stein, 284 S.W.3d at 601. We do not attempt to weigh whether the factual allegations are credible or persuasive. Nazeri, 860 S.W.2d at 306; Stein, 284 S.W.3d at 601. Nor do we address the merits of the case or consider evidence outside the pleadings. Ryann Spencer Group, Inc. v. Assurance Co. of America, 275 S.W.3d 284, 287 (Mo. App. E.D. 2008). Rather, we review the petition "in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Nazeri, 860 S.W.2d at 306; Stein, 284 S.W.3d at 601. "If the petition sets forth any set of facts that, if proven, would entitle the plaintiff to relief, then the petition states a claim." Lynch, 260 S.W.3d at 836; Stein, 284 S.W.3d at 602. A petition states a cause of action if "its averments invoke principles of substantive law that may entitle the plaintiff to relief." Id. (internal quotation omitted). "A petition cannot be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of the claim that would give a right to relief." Thomas v. B.K.S. Development Corp., 77 S.W.3d 53, 58 (Mo. App. E.D. 2002).
The public policy of Missouri, declared by the General Assembly, mandates that no less than the prevailing hourly rate of wages be paid to workers employed by or on behalf of any public body engaged in public works. Section 290.220 RSMo 2000.4, 5 The Missouri Prevailing Wage Act, codified at Sections 290.210 through 290.340, provides the mechanism for implementing this policy. Board v. Eurostyle, 998 S.W.2d 810, 814 (Mo. App. S.D. 1999). The Act is based upon and has a similar purpose to the federal Davis-Bacon Act, 20 U.S.C. Section 276a et seq. (2003), which is intended "to ensure that workers on public projects be paid reasonable wages." Long v. Interstate Ready Mix, L.L.C., 83 S.W.3d 571, 574 (Mo. App. W.D. 2002). The Act was enacted "in the interest of public welfare." Id. The Act is remedial in nature, and thus we must "interpret it broadly so as to accomplish the greatest public good." Id.
Consistent with this declared public policy, the Act expressly provides that "all workmen employed by or on behalf of any public body engaged in the construction of public works" be paid "not less than the prevailing hourly rate of wages for work of similar character in the locality in which the work is performed." Section 290.230.1.6 Correspondingly, the Act demands that a contractor that is awarded a public-works and any subcontractor under that contractor pay not less than the prevailing hourly rate of wages to all workmen performing work under the contract. Section 290.250.
Contractors on a public-works project are required to obtain bonds that assure payment of wages earned by their workers and workers employed by subcontractors. The pertinent requirements here are those in the Act itself and those that are set forth in the general public-works bond statute, Section 107.170.
At the time the general contractor secured the two bonds at issue in this case, the Prevailing Wage Act contained the following mandate:
It [the public body awarding the contract] shall also require in all contractor's bonds that the contractor include such provisions as will guarantee the faithful performance of the prevailing hourly wage clause as provided by contract.
Section 290.250 (emphasis added).7
The public-works bond statute mandates that contractors, to whom a contract for a public-works project is awarded,8 furnish the public entity awarding the contract a bond with good and sufficient sureties. Section 107.170.2.9 "Such bond, among other conditions, shall be conditioned for the payment of any and all materials, incorporated, consumed or used in connection with the construction of such work, and all insurance premiums, both for compensation, and for all other kids of insurance, said work, and for all labor performed in such work whether by subcontractor or otherwise." Section 107.170.2 (emphasis added). The public-works bond statute further mandates that:
"All bonds executed and furnished under the provisions of this section shall be deemed to contain the requirements and conditions as herein set out, regardless of whether the same be set forth in said bond, or of any terms or provisions of said bond to the contrary notwithstanding."
Section 107.170.3 (emphasis added).
The public-works bond statute demonstrates a "strong legislative purpose to protect those who furnish labor and materials for public construction and to assure that they will be paid." School Dist. of Springfield R-12, ex rel. Midland Paving Co. v. Transamerica Ins. Co., 633 S.W.2d 238, 248 (Mo. App. S.D. 1982); see also Energy Masters Corp. v. Fulson, 839 S.W.2d 665, 668 (Mo. App. W.D. 1992). The long-established purpose of the public-works bond statute has been "to afford those furnishing labor or material on public works the same measure of protection as is afforded by the mechanic's lien law where the building or improvement is not of a public character." Collins & Hermann, Inc. v. TM2 Construction Co., 263 S.W.3d 793, 798 (Mo. App. E.D. 2008)(citing Camdenton Consol. School Dist. No. 6 of Camden County ex rel. W.H. Powell Lumber Co., 104 S.W.2d 319, 322 (Mo. 1937); see also Fulson, 839 S.W.2d at 668. The public-works statute is read broadly to carry out its purpose to protect those who improve and enhance the public properties. Fulson, 839 S.W.2d at 668.
...
To continue reading
Request your trial