Trustees, Florida West Coast Trowel Trades Pension Fund v. Quality Concrete Co., Inc.

Decision Date11 July 1980
Docket NumberNo. 3,AFL-CI,No. 79-2131,A,3,79-2131
Citation385 So.2d 1163
PartiesTRUSTEES, FLORIDA WEST COAST TROWEL TRADES PENSION FUND; Trustees, Florida West Coast Trowel Trades Welfare Fund; Trustees, Florida West Coast Trowel Trades Apprenticeship Fund; and, International Union of Bricklayers and Allied Craftsmen, Localppellants, v. QUALITY CONCRETE COMPANY, INC., and Safeco Insurance Company of America, Appellees.
CourtFlorida District Court of Appeals

John F. Venable of W. Eric Venable, Tampa, for appellants.

Stephen H. Reisman of Rosenberg, Rosenberg, Reisman & Glass, Miami, for appellee Safeco Ins. Co. of America.


The issue on this appeal is whether the issuer of a performance bond on a public works contract may be held liable under the bond for contractually required contributions to the union pension funds of the laborers employed by a subcontractor on the project. The trial court answered this question in the negative and therefore dismissed with prejudice the complaint of appellants, the trustees of certain union pension funds, as to defendant/appellee Safeco Insurance Company. We disagree and reverse.

Bricklayers, Masons, and Plasterers International Union of America, Local # 3 (the Union), entered into a collective bargaining agreement with Quality Concrete, Inc. (Quality). The collective bargaining agreement required that each employer pay to appellants certain union benefits, in addition to paying the employees' wages.

Titan Southeast Construction Corp. (Titan) entered into a public works contract with the city of Tampa for the construction of a sewage treatment plant and purchased performance bonds from appellee on January 19, 1976, and March 14, 1977. The bonds in question all provided in pertinent part:

Now, if the Principal shall in all respects well and faithfully perform and execute the Contract and the work therein provided, . . . and promptly pay all debts incurred by the Principal or any subcontractor in the prosecution of such work, including those for labor and materials furnished, . . . then is this obligation to be null and void, otherwise to remain in full force and effect.

Appellants filed an amended complaint and a second amended complaint against Quality and appellee. The second amended complaint alleged that Quality had failed to pay appellants the contributions due for the hours worked by employees covered by the collective bargaining agreement. It further alleged that one or all of the aforementioned surety bonds were issued with respect to payment for labor performed by Union members for Quality as a subcontractor to Titan and that appellee was therefore liable to appellants under its surety bond for the sum owed by Quality.

Appellee filed a motion to dismiss appellants' second amended complaint on the grounds that the performance bonds in question were executed pursuant to Section 255.05, Florida Statutes (1975), and that (1) appellants were not claimants as defined by Section 255.05 because they did not claim to be in direct privity with Titan and were not a subcontractor to Quality, and (2) there was no Florida authority permitting recovery of union benefits against a Section 255.05 bond. The trial court granted appellee's motion and dismissed the complaint with prejudice as to appellee on the authority of William H. Gulsby, Inc. v. Miller Construction Co., Inc. of Leesburg, 351 So.2d 396 (Fla. 2d DCA 1977), and J. W. Bateson Co., Inc. v. United States ex rel. Board of Trustees of the National Automatic Sprinkler Industry Pension Fund, 434 U.S. 586, 98 S.Ct. 873, 55 L.Ed.2d 50 (1978). This appeal followed timely.

Section 255.05 requires that a contractor on a public works construction job provide a bond for the protection of certain persons supplying labor or materials to that job. Although no Florida court has expressly recognized that trustees of fringe benefit funds may assert a claim for delinquent contributions against a Section 255.05 bond, we conclude that such a claim is proper.

The question presented here is precisely that addressed in Local Union 323, International Brotherhood of Electrical Workers v. Electric Utilities Construction Co., 73 L.C. 53, 318 (S.D.Fla.1974). In that case the union entered into a collective bargaining agreement with the Electric Utilities Construction Corp. (EUCC) which provided that EUCC must pay to the trustees of various fringe benefit funds an amount based on the number of hours worked by covered employees. EUCC entered into a public works contract with the city of Vero Beach. Pursuant to the requirements of Section 255.05, EUCC purchased a payment and performance bond from United States Fidelity and Guarantee Co. (USF&G). The bond by its terms extended to protect persons supplying labor to EUCC in the construction of the public works project. The union and trustees sought to recover from EUCC and from USF&G as surety on the bond delinquent fringe benefit contributions. USF&G moved to dismiss the action for failure to state a cause of action, arguing that the bond did not extend to cover EUCC's obligation to contribute to the fringe benefit funds imposed by the collective bargaining agreement. The district court denied the motion, relying on United States ex rel. Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). The court noted that Florida courts have stated that Section 255.05 was patterned after the Miller Act, 40 U.S.C. § 270(a) et seq., and that where there are no Florida decisions interpreting Section 255.05, a court should look for guidance to decisions interpreting the Miller Act. Board of Public Instruction v. Rood Construction Co., 166 So.2d 701 (Fla. 3d DCA 1964).

In Sherman, Carter, the prime contractor, entered into a contract with the United States to construct certain military installations. Pursuant to that contract, Carter provided a payment and performance bond executed by Hartford Accident and Indemnity Co., as required by the Miller Act. Carter had previously entered into a...

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4 cases
  • National Elec. Industry Fund v. Bethlehem Steel Corp.
    • United States
    • Maryland Court of Appeals
    • 15 d1 Agosto d1 1983
    ...and apprenticeship funds were said to "stand in the shoes of the employees." Trustees, Florida West Coast Trowel Trades Pension Fund v. Quality Concrete Co., 385 So.2d 1163, 1166 (Fla.Dist.Ct.App.1980). Trustees of welfare and pension funds could sue "in the right of the workmen as benefici......
  • Indiana Carpenters Cent. and Western Indiana Pension Fund v. Seaboard Sur. Co.
    • United States
    • Indiana Appellate Court
    • 19 d1 Outubro d1 1992
    ...state public works statutes using the principles enunciated in Carter. See Trustees, Florida West Coast Trowel Trades Pension Fund v. Quality Concrete Company, Inc. (1980), Fla.Dist.Ct.App., 385 So.2d 1163; Arizona Laborers, Teamsters and Cement Masons Local 395 Health and Welfare Trust Fun......
  • Sprinkler Fitters and Apprentices Local Union No. 821, U.A. v. F.I.T.R. Service Corp.
    • United States
    • Florida District Court of Appeals
    • 27 d2 Novembro d2 1984
    ...favor of any person to whom it applies."). Accordingly, I do not find persuasive Trustees, Florida West Coast Travel Trades Pension Fund v. Quality Concrete Co., 385 So.2d 1163 (Fla. 2d DCA 1980), upon which the plaintiffs rely. There, the court's holding that the insurer under a performanc......
  • Jones v. Darin & Armstrong, Inc.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 7 d1 Abril d1 1986 claim the laborer's exemption. As authority for its holding, the district court cited West Coast Trowel Trades Pension Fund v. Quality Concrete Co., 385 So.2d 1163, 1166 (Fla. 2nd Dist.Ct.App.1980), which holds that, as a matter of policy, union fund trustees are proper claimants under S......

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