W.T. Andrew Co., Inc. v. Mid-State Sur. Corp.

• Decision Date: 07 February 1997
• Docket Number: Docket No. 194744,MID-STATE
• Citation: 221 Mich.App. 438,562 N.W.2d 206
• Parties: W.T. ANDREW COMPANY, INC., Plaintiff-Appellee, v.SURETY CORPORATION, Defendant-Appellant, and Marino Mechanical Contractor Company, Defendant (On Remand).
• Court: Court of Appeal of Michigan — District of US

Page 206

562 N.W.2d 206

221 Mich.App. 438

W.T. ANDREW COMPANY, INC., Plaintiff-Appellee, v. MID-STATE SURETY CORPORATION, Defendant-Appellant and Marino Mechanical Contractor Company, Defendant (On Remand).

Docket No. 194744.

Court of Appeals of Michigan.

Submitted May 10, 1996, at Lansing.

Decided Feb. 7, 1997, at 9:30 a.m.

Released for Publication April 29, 1997.

Frank and Stefani by Sidney L. Frank, Troy, for plaintiff-appellee.

Wegner and Associates, P.C. by Wayne G. Wegner and Shane F. Diehl, Grosse Pointe Woods, for Mid-State Surety Corporation.

Before MARILYN KELLY, P.J., and REILLY and JANSEN, JJ.

ON REMAND

PER CURIAM.

This case involving the public works bond statute, M.C.L. § 129.201 et seq.; M.S.A. § 5.2321(1) et seq., is before us on remand from the Supreme Court. W.T. Andrew Co., Inc. v. Mid-State Surety Corp., 450 Mich. 655, 545 N.W.2d 351 (1996).

The University of Michigan had contracted with A.Z. Shmina & Sons to perform renovation on its Dearborn campus. Marino Mechanical Contractor Company was one of the subcontractors on the project that obtained supplies from plaintiff. When Marino failed to pay plaintiff the full balance due for the construction materials it provided to Marino, plaintiff filed suit, claiming approximately $70,000 under the labor and materials payment bond. The trial court entered judgment for plaintiff, finding that the public works bond statute was applicable and that plaintiff gave defendant adequate notice.

We reversed, holding that the public works bond statute does not apply to public universities, such as the University of Michigan, that are created by the state constitution. W.T. Andrew Co., Inc. v. Mid-State Surety Corp., 209 Mich.App. 308, 529 N.W.2d 658 (1995). The Supreme Court reversed our decision, finding that the public works bond statute is applicable against the University of Michigan. W.T. Andrew Company, 450 Mich. at 668, 545 N.W.2d 351. The Supreme Court remanded this matter to us to decide whether plaintiff provided defendant with timely notice of its claim. Id. at 669, 545 N.W.2d 351. We reverse, concluding that it did not.

We review for clear error the trial court's finding that plaintiff complied with the notice requirements of the public works bond statute. MCR 2.613(C); Tempco Heating & Cooling, Inc. v. A. Rea Construction, Inc., 178 Mich.App. 181, 191, 443 N.W.2d 486 (1989).

The public works bond statute provides that a claimant who does not have a direct contractual relationship with a principal contractor, such as plaintiff, must serve two written notices: the first, upon the principal contractor, within thirty days after the first furnishing of materials or labor, and the second upon the principal contractor and the governmental unit involved within ninety days of the last furnishing of material or labor. M.C.L. § 129.207; M.S.A. § 5.2321(7), Pi-Con, Inc. v. A.J. Anderson Construction Co., 435 Mich. 375, 378-379, 458 N.W.2d 639 (1990). Tempco, supra at 190, 443 N.W.2d 486. Each of the notices must be served by certified mail. M.C.L. § 129.207; M.S.A. § 5.2321(7); Pi-Con, supra at 379, 458 N.W.2d 639.

Generally, strict adherence to the statutory notice requirements is mandatory. Tempco, supra at 191, 443 N.W.2d 486. However, strict adherence to the certified mailing requirement is not mandatory where the principal contractor received timely and otherwise sufficient, actual notice. Pi-Con, supra at 380, 458 N.W.2d 639. A claimant on a bond may maintain an action on the bond upon establishing compliance with four substantive elements of the notice provisions. First, a claimant must prove that the principal contractor actually received notice. Second, the notice must relate the nature of the materials being furnished or to be furnished, or labor being performed or to be performed and identify the party contracting for such labor or materials and the site for the performance of such labor or the delivery of such materials. Third, the notice must have been written. Fourth, the notice must have been received within the time limits prescribed by the statute. Id. at 382, 458 N.W.2d 639.

Here, there is no evidence that plaintiff notified the principal, surety or the University of Michigan within thirty days of the first delivery. Therefore, plaintiff is not in compliance with the notice provisions of the statute.

However, plaintiff argues that, because the actual payment bond only contained a ninety day notice provision and it complied with...