U.S. for Use and Ben. of Carter Equipment Co., Inc. v. H. R. Morgan, Inc.
| Decision Date | 16 June 1977 |
| Docket Number | No. 75-2362,75-2362 |
| Citation | 554 F.2d 164 |
| Parties | UNITED STATES of America, for the Use and Benefit of CARTER EQUIPMENT COMPANY, INC., Plaintiff-Appellee, v. H. R. MORGAN, INC. and National Indemnity Company, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas W. Tyner, Hattiesburg, Miss., for H. R. Morgan & Nat'l indemnity.
Francis T. Zachary, Hattiesburg, Miss., for H. R. Morgan.
Wm. H. Cox, Jr., Jackson, Miss., D. Gary Sutherland, Hattiesburg, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion January 10, 1977, 5 Cir., 1977, 544 F.2d 1271).
Before COLEMAN, GODBOLD and HILL, Circuit Judges.
The Petition for Rehearing is GRANTED. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED. The appellee, Carter Equipment Co., Inc. (Carter), suggests in its petition for rehearing that our decision disallowing the recovery of attorney's fees in this Miller Act suit was erroneous. We agree and the following is to be substituted for the last paragraph of our prior opinion:
Finally, appellants insist that the district court erred in awarding attorney's fees to Carter. The issue is whether a contractual provision for attorney's fees between a subcontractor and its supplier is enforceable against the general contractor and its surety under the Miller Act. Carter asserts that since the equipment rentals provided for the recovery of attorney's fees, 3 this award is recoverable under the general terms of the payment bond, 4 interpreted with a view toward the liberal purpose of the Miller Act.
The relevant statutory language provides that "(e)very person who has furnished labor or material in the prosecution of the work provided for in such contract . . . who has not been paid in full therefor . . . shall have the right to sue on such payment bond . . . for the sum or sums justly due him". 40 U.S.C.A. § 270b(a). It is important to note that the statute does not differentiate between the scope of coverage for the liabilities of subcontractors as opposed to the scope of coverage for the liabilities of general contractors. While the statute does impose some additional notice requirements on persons having no direct contractual relationship with the general contractor, insofar as financial coverage of the bond is concerned, a supplier of the subcontractor is equally as entitled to be "paid in full" for "the sums justly due him."
The Supreme Court allowed the recovery of attorney's fees in United States ex rel Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). A provision for the award of attorney's fees was contained in a contract between the general contractor and the trustees of an employees' welfare fund. The Supreme Court held that the attorney's fees were "sums justly due" under the Miller Act. Since there appears to be no statutory basis for distinguishing between the recovery allowed to the supplier of a subcontractor and that of a person dealing directly with the general contractor, we conclude that attorney's fees are a recoverable item under this Miller Act bond. At least two other circuits have reached this same conclusion. Travelers Indemnity Co. v. United States ex rel. Western Steel Co., 362 F.2d 896 (9th Cir. 1966); D & L Construction Co. v. Triangle Electric Supply Co., Inc., 332 F.2d 1009 (8th Cir. 1964).
There is some authority in this circuit which would support a...
To continue reading
Request your trial
-
U.S. for Use of C.J.C., Inc. v. Western States Mechanical Contractors, Inc.
... ... corporation; Commercial Union Insurance Co., a ... Massachusetts corporation; and Sandia ... on an hourly basis, based on the equipment used by CJC. The subcontract included a ... Such a determination, however, merely leads us back to state law. Neither the Miller Act nor ... v. United States ex rel M.B. Morgan, 285 F.2d 939, 948 (10th Cir.1960), cert. denied, ... 1295 (5th Cir.1978); United States ex rel Carter Equip. Co., v. H.R. Morgan, Inc., 554 F.2d 164, ... ...
-
U.S. v. P. Browne & Associates Inc.
... ... Stillwell Enters., Inc. v. Interstate Equip. Co., 300 N.C. 286, 289, 266 S.E.2d 812, 81415 ... Carter Equip. Co. v. H.R. Morgan, Inc., 554 F.2d 164, ... ...
-
State Mexico ex rel. Solsbury Hill, LLC v. Liberty Mut. Ins. Co.
... ... contract with Salls Brothers Construction, Inc. (the contractor) for the City's Unser Boulevard ... , plus the facts that in the case before us the district court determined that Neumark ... of a credit for excess material and equipment delivered but not used in the project. 102 N.M ... Sherman v. Carter, 353 U.S. 210, 216, 77 S.Ct. 793, 1 L.Ed.2d 776 ... Carter Equip. Co. v. H.R. Morgan, Inc., 554 F.2d 164, 166 (5th Cir.1977); ... ...
-
State ex rel. Solsbury Hill, LLC v. Liberty Mut. Ins. Co.
... ... contract with Salls Brothers Construction, Inc. (the contractor) for the City's Unser Boulevard ... , plus the facts that in the case before us the district court determined that Neumark ... of a credit for excess material and equipment delivered but not used in the project. 102 N.M ... Sherman v. Carter, 353 U.S. 210, 216 (1957). Maddux Supply, 86 ... Carter Equip. Co. v. H.R Morgan, Inc., 554 F.2d 164, 166 (5th Cir. 1977); ... ...