United States v. FULLERTON CONSTRUCTION COMPANY

• Decision Date: 30 April 1969
• Docket Number: Civ. A. No. 68-323.
• Citation: 298 F. Supp. 1157
• Court: U.S. District Court — District of South Carolina
• Parties: The UNITED STATES of America, for the Use of ERIE CITY IRON WORKS, a Pennsylvania Corporation, Plaintiff, v. FULLERTON CONSTRUCTION COMPANY, Incorporated, a Corporation, and Continental Casualty Company, a Corporation, Defendants.

298 F. Supp. 1157

The UNITED STATES of America, for the Use of ERIE CITY IRON WORKS, a Pennsylvania Corporation, Plaintiff, v. FULLERTON CONSTRUCTION COMPANY, Incorporated, a Corporation, and Continental Casualty Company, a Corporation, Defendants.

Civ. A. No. 68-323.

United States District Court D. South Carolina, Columbia Division.

April 30, 1969.

Wilburn Brewer, Jr., Cooper, Gary, Nexsen & Pruet, Columbia, S. C., for plaintiff.

Michael H. Quinn, Fulmer, Barnes, Berry & Austin, Columbia, S. C., for defendant.

ORDER

SIMONS, District Judge.

This action was instituted pursuant to the Miller Act, 40 U.S.C.A. § 270a et seq.¹ and is before this court on defendants' motion for summary judgment.

The facts surrounding this controversy are essentially undisputed. On October 30, 1964, the defendant, Fullerton Construction Company, and its surety, Continental Casualty Company, entered into a contract with the United States of America for the construction of a central heating and refrigeration plant at Fort Jackson, South Carolina. This contract contained a one-year guaranty provision covering materials and workmanship which began running upon the date of beneficial or final acceptance by the government, whichever came earlier.² On January 22, 1965 the defendant Fullerton entered into a subcontract with the plaintiff whereby the plaintiff agreed to furnish certain labor and material necessary for the installation of three boilers called for under the original contract between the United States of America and the defendants.

On May 23, 1966 all construction required by the government contract was substantially complete. On August 9, 1966, and September 22, 1966, the entire project, including the work performed by the plaintiff, was inspected and approved by the government. Approximately six and one-half months elapsed after the government had inspected the project. Then between April 6 and April 15 of 1967 the plaintiff performed additional work and supplied additional materials for the purpose of correcting defects and/or making repairs to the work previously completed by the plaintiff pursuant to his subcontract with the defendant Fullerton. This was done at the request of the government pursuant to and in accordance with the one year guaranty contained in the prime contract. (Note 2, supra). Within a year thereafter, on April 12, 1968, the plaintiff instituted the present action contending that the additional work done and materials provided under the guaranty constituted "labor performed or material supplied" in performance of the original contract, and that the suit was timely under Section 270b(b) of the Miller Act, (Note 1, supra). The defendants maintain that the action brought by the plaintiff is untimely, contending that the correction of defects and the making of repairs, regardless of the fact that the same were accomplished in accordance with the guaranty provision in the prime contract, do not extend the statutory time limit for instituting suit under the Miller Act, and do not constitute work performed or material supplied as a part of the original contract. Thus, the precise issue for determination is whether the making of repairs and/or the correcting of defects pursuant to a one-year guaranty provision contained in the original contract constitute labor performed or material supplied as a part of the original contract.

After a careful review of the authorities, the court has concluded that the issue must be resolved in the negative and, therefore, that the plaintiff's action is untimely under Section 270b(b), (Note 1, supra). The applicable legal test of Section 270b(b), as recently stated by the Fourth Circuit in United States of America for Use of Noland Company v. Andrews and Parrish, et al., 406 F.2d 790 (decided Jan. 24, 1969), is "whether the work was performed and the material supplied as a `part of the original contract' or for the `purpose of correcting defects, or making repairs following inspection of the project.'" Thus, under the decided cases of this jurisdiction, as well as other jurisdictions, the furnishing of labor and materials for the purpose of correcting defects or making repairs of the original undertaking is not labor performed or material supplied as a part of the original contract and will not extend the statutory time limitation. United States of America ex rel. for Use of Noland Company v. Andrews and Parrish, et al., supra; United States of America ex rel. Palmer Asphalt Co. v. Debardelaben, 278 F.Supp. 722 (D.C.S.C.1967), aff'd, 4 Cir., 388 F.2d 309 (4th Cir. 1967); United States of America ex rel. Austin v. Western Electric Co., 337 F.2d 568 (9th Cir. 1964); United States of America ex rel. Weithman v. Buckeye Union Cas. Company, 207 F.Supp. 552 (N.D.Ohio 1962); United States of America ex rel. John T. Evanick & Co. v. Merritt-Chapman & Scott Corp., 185 F.Supp. 587 (M.D.Pa.1960). See also United States ex rel. State Electric Supply Co. v. Hesselden Construction Co., 404 F.2d 774 (10th Cir. 1968).

Unquestionably, the labor and material furnished by the plaintiff in April of 1967 was for the sole purpose of correcting the previously supplied defective materials and/or making repairs to such previously supplied materials or parts. It cannot be said that the materials supplied in April of 1967 by the plaintiff were materials that were called for by the terms...