United States v. Mattingly Bridge Co.

• Decision Date: 02 February 1972
• Docket Number: Civ. A. No. 6902.
• Parties: UNITED STATES of America for the Use of Jack L. MILLER, t/d/b as Miller Lumber Company, Plaintiff, v. MATTINGLY BRIDGE CO., Inc., et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

344 F. Supp. 459

UNITED STATES of America for the Use of Jack L. MILLER, t/d/b as Miller Lumber Company, Plaintiff, v. MATTINGLY BRIDGE CO., Inc., et al., Defendants.

Civ. A. No. 6902.

United States District Court, W. D. Kentucky, Louisville Division.

February 2, 1972.

E. Preston Young, Louisville, Ky., for plaintiff.

Robert L. Maddox, Jr., J. Kendrick Wells, III, Louisville, Ky., for defendants Mattingly Bridge Co. and Goebel Mattingly.

Davis M. Howerton, Jr., Louisville, Ky., for U. S. Fidelity & Guaranty Co.

OPINION

ALLEN, District Judge.

This action is submitted to the Court on the motions of the defendants to dismiss it for lack of jurisdiction. The action was brought by the plaintiff purportedly under the Miller Act, Title 40 U.S.C.A. § 270a(a), (b), (c), and (d), and the amount in controversy exceeds $10,000.

It is alleged in the complaint that Jack L. Miller, the use plaintiff doing business as Miller Lumber Company, Augusta, Kentucky, furnished materials to the defendants, Mattingly Bridge Company, Inc. and Goebel Mattingly, in the sum of $27,178.32 for use on interstate highway projects conducted by the United States of America through its Bureau of Public Roads and the Commonwealth of Kentucky through its Department of Highways and that he has been paid nothing by said defendants on the amount owing for the materials.

Paragraph 3 of the complaint alleges that the materials were used by the defendants for the construction, alteration or repair of public works of the United States and the Commonwealth of Kentucky on Federal projects known as interstate highway construction.

Paragraph 4 alleges that defendant, United States Fidelity and Guaranty Company, hereinafter referred to as USF&G, is the surety upon the contract of Mattingly Bridge and has executed appropriate bonds to protect the United States of America on behalf of the plaintiff in the supplying of material sold and furnished by the plaintiff to the defendants on the jobs and projects identified in the pleading.

While the averments in the complaint are sufficient to bring the plaintiff within the scope of the Miller Act, it appears from an uncontradicted exhibit that no bond has been issued to the United States of America and that the contract which was entered into by Mattingly Bridge is with the Commonwealth of Kentucky for the construction of a portion of I-264 in Jefferson County, Kentucky.

Likewise, the bond which was executed by Mattingly Bridge runs in favor of the Commonwealth of Kentucky and not of the United States of America.

Title 40 U.S.C.A. § 270a(a) (1) and (a) (2) state as follows:

"(a) Before any contract, exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as `contractor':

(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States.

(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. Whenever the total amount payable by the terms of the contract shall be not more than $1,000,000 the said payment bond shall be in a sum of one-half the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more than $1,000,000 and not more than $5,000,000, the said payment bond shall be in a sum of 40 per centum of the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more than $5,000,000 the said payment bond shall be in the sum of $2,500,000."

The purpose of the Miller Act is to provide security of payment for suppliers who provide material for the public work of the United States. This security is necessary because such suppliers do not have enforceable rights for their compensation against the United States and cannot acquire a lien on property of the United States. United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947). While the Act is to be construed liberally, see Irwin v. United States, 316 U.S. 23, 62 S.Ct. 899, 86 L.Ed. 1241, it is the opinion of the Court that it does not apply where the work in question was not contracted for by the United States or by an agency of the United States or a person acting directly as an agent of the United States.

The wording of Title 40 U.S.C. A. § 270a, subsection (a), indicates strongly that Congress in using the word "contracts" had in mind only contracts between the United States and prime contractors, and not contracts to which the United States was not a party. In that section Congress, after...