US FOR USE OF SUPERIOR INSULATION v. McKee, Inc.

• Decision Date: 13 September 1988
• Docket Number: Civ. A. No. 4-86-959-E.
• Citation: 702 F. Supp. 1298
• Parties: The UNITED STATES of America for the Use and Benefit of SUPERIOR INSULATION COMPANY, INC. v. ROBERT E. McKEE, INC. and Associated Indemnity Corporation and Fireman's Fund Insurance Company v. AETNA CASUALTY AND SURETY COMPANY.
• Court: U.S. District Court — Northern District of Texas

702 F. Supp. 1298

The UNITED STATES of America for the Use and Benefit of SUPERIOR INSULATION COMPANY, INC. v. ROBERT E. McKEE, INC. and Associated Indemnity Corporation and Fireman's Fund Insurance Company v. AETNA CASUALTY AND SURETY COMPANY.

Civ. A. No. 4-86-959-E.

United States District Court, N.D. Texas, Fort Worth Division.

September 13, 1988.

Dan S. Boyd, Robert R. Gibbons, Johnson Swanson, Dallas, Tex., for plaintiffs; Randall F. Hafer, Patrick A. Thompson, Hubert J. Bell, Jr., Smith, Currie & Hancock, Atlanta, Ga., of counsel.

Joe F. Canterbury, Jr., Frederick Gover, Canterbury, Stuber, Elder & Gooch, C. Edward Fowler, Jr., Bailey and Williams, Dallas, Tex., for defendants.

ORDER

MAHON, District Judge.

On June 22, 1988, at the close of Plaintiff's case, Defendants and Third Party Defendants orally presented a motion for a directed verdict which the Court carried along. After the trial, Defendants and Third Party Defendants filed motions for a judgment not withstanding the verdict. Plaintiff has responded to both motions. After a thorough review of the issues, the Court makes the following determinations.¹

Plaintiff Superior is the sub-subcontractor on a construction project at Carswell Air Force Base in Fort Worth, Texas. Superior has sued Defendants McKee, the general contractor, in its capacity as the principal on a surety bond created pursuant to the Miller Act, and Associated Indemnity Corporation and Fireman's Fund Insurance Company, as sureties on the bond. 40 U.S.C. § 270a et seq. Plaintiff alleges that it has incurred increased labor costs resulting from inter alia improper scheduling which caused it to perform work in an inefficient, uncoordinated and piecemeal manner. There is evidence of improper scheduling by both the general contractor, McKee, and the subcontractor, Kinney.² Plaintiff Superior only sued McKee and the sureties. Superior did not sue Kinney or Aetna. Aetna is the surety on a performance bond under which Aetna agreed to complete the work assigned to Kinney if Kinney did not do so.

In bidding on the project, Superior made a calculation of the number of hours of labor were necessary for it to complete the project. Superior claims that its calculation was accurate. Superior claims that it had to incur more hours than anticipated because of improper scheduling by McKee. The evidence indicates that there was improper scheduling by Kinney as well as McKee.

The Defendants are contending that they can only be liable for the increased labor costs to Superior which were caused by actions on the part of McKee and not by the actions of other parties. The Defendants further contend that Superior has the burden of apportioning the increased labor costs between the various causes of the increased labor costs. Defendants assert that Plaintiff has provided no evidence of apportionment of the damages between McKee and the other potential causes of Superior's increased labor costs.

This case is different than many other cases that are decided under the Act. First, several of the cases decided under the Miller Act were based upon interpretations of contractual provisions in contracts between the parties. See e.g. United States v. SCI, Inc., 828 F.2d 671 (11th Cir.1987); United States v. J.H. Copeland & Sons Const., Inc., 568 F.2d 1159 (5th Cir.1978). Plaintiff Superior has not brought suit based on any contract.

Second, some cases do not involve an issue of causation or culpability. For instance, when a materialman supplies material for which he is not paid, he only needs to prove four elements to recover:

(1) the materials were supplied in prosecution of the work provided for in the contract;

(2) he has not been paid;

(3) he had a good faith belief that the materials were intended for the specified work; and

(4) the jurisdictional requisites were met.

United States v. Avanti Const., Inc., 750 F.2d 759, 761 (9th Cir.1984). See also Miller Equipment Co. v. Colonial Steel & Iron Co., 383 F.2d 669 (4th Cir.1967).

Unlike Avanti Const. and Miller Equipment cases, in this case, there was a genuine question about who caused Plaintiff's increased labor costs. Plaintiff alleges that it need only prove its increased costs and not who caused such increased costs. Defendants contend that Plaintiff must apportion the increased costs between the various entities that caused damage to Plaintiff.

Defendants rely heavily on a body of case law that has developed under the Miller Act which relates to delay damages — increased costs resulting from delays in completion of the project. Plaintiff contends that it is not requesting damages for delays in the completion of the project. Rather, Plaintiff is asking for increased labor costs incurred within the timeframe for completion of the project.

This Court finds the distinction made by the parties is not determinative. The important factor to this Court is that there is a question of causation in this case and this Court must determine who has the burden of proof as to this question. The holdings in the delay damage cases do afford some assistance in deciding this case.

A few basic principles will narrow the remaining issue in this case. First, a sub-subcontractor cannot recover against a general contractor, as principal on a bond, and the surety on the bond for increased labor costs which were caused by the sub-subcontractor himself. United States for Use and Benefit of Mariana v. Piracci Const. Co., Inc., 405 F.Supp. 904, 906 (D.D. C.1975). Second, the sub-subcontractor can recover for increased labor costs caused by the general contractor. United States for Use and Benefit of Otis Elevator Co. v. Piracci Const. Co., Inc., 405 F.Supp. 908, 909 (D.D.C.1975). Third, the sub-subcontractor (or a subcontractor) can recover against the general contractor and the Miller bond surety for increased labor costs caused by the Government. United States for Use and Benefit of Mariana v. Piracci Const. Co., Inc., 405 F.Supp. 904, 905 n. 2 (D.D.C.1975). The reason that the sub-subcontractor is allowed such recovery is because the sub-subcontractor is not allowed to sue the Government. The only entity which can sue the Government is the general contractor — the entity with whom the Government contracted. United States v. Williams, 240 F.2d 561, 563 (10th Cir.1957).

The question left for this Court to decide is whether the general contractor and the surety can be liable to the sub-subcontractor for increased labor costs which are caused by an entity other than the sub-subcontractor, the general contractor or the Government. There are persuasive arguments on both sides.

Allowing the sub-subcontractor to recover against the general contractor and its surety is consistent with the principle that the Miller Act should be construed broadly to protect the laborers and materialmen who work and supply goods for Government projects. F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 124, 94 S.Ct. 2157, 2162-63, 40 L.Ed.2d 703 (1974). In addition, courts have stated that the risk of nonpayment for goods and services provided on a Government project should be on the surety and not on the laborers or materialmen. United States for Use and Benefit of Mariana v. Piracci Const. Co., Inc., 405 F.Supp. 904, 905 n. 2 (D.D.C.1975). Third, if the sub-subcontractor were not allowed to recover against the general contractor and the surety, then the sub-subcontractor would have to sue the party that caused it to incur the increased labor costs. In this case, since the sub-subcontractor is prevented from placing a lien on the Government's property, he is left only with a cause of action for breach of contract against the subcontractor who is bankrupt. This is the type of situation that the Miller Act was attempting to avoid. The Miller Act wanted to provide the laborers and materialmen with an alternative means of recovery other than a breach of contract claim under state law. F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 121-22, 94 S.Ct. 2157, 2161-62, 40 L.Ed.2d 703 (1974).

Under state law, a laborer could obtain a lien against the private property on which he worked or provided material. Id. However, a laborer or materialman who works on a construction project on federal property is not able to file a lien against the property. The laborer or materialman could bring a cause of action against the party which caused the increased labor or material costs. Id. However, that party may not be able to compensate the laborer or materialman for his loss. For this reason, the Congress enacted the Miller Act to provide the laborers and materialmen the protection they had under state law. Id.

The Defendants also present persuasive arguments. First, there are cases which hold that the general contractor and the surety cannot be liable unless the general contractor has caused some injury to the Plaintiff. United States for Use and Benefit of Otis Elevator Co. v. Piracci Const. Co., Inc., 405 F.Supp. 908, 909 (D.D.C. 1975).

Second, allowing the sub-subcontractor to recover against the general contractor and surety runs afoul of the idea that one should not be liable for damages unless they are directly or indirectly caused by that entity.

Third, Plaintiff is in a better position to collect and present evidence as to the cause of its injury. As stated above, Plaintiff has the burden of proving those damages that were caused by entities other than itself. Defendants contend that it is logical for Plaintiff also to have the burden of proving who caused damages to the Plaintiff other than itself and the extent of the damages caused by entities other than itself.

Finally, the purpose of the Miller Act is only to put the laborers and materialmen in the position they would have occupied if they were working on a private and not a Government project. F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co.,...