American Casualty Co. v. D.L. Withers Construction, L.C.

64 P.3d 210, 204 Ariz. 382, 394 Ariz. Adv. Rep. 36, 2003 Ariz. App. LEXIS 36
CourtCourt of Appeals of Arizona
DecidedMarch 6, 2003
DocketNo. 1 CA-CV 02-0199
StatusPublished
Cited by2 cases

This text of 64 P.3d 210 (American Casualty Co. v. D.L. Withers Construction, L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Casualty Co. v. D.L. Withers Construction, L.C., 64 P.3d 210, 204 Ariz. 382, 394 Ariz. Adv. Rep. 36, 2003 Ariz. App. LEXIS 36 (Ark. Ct. App. 2003).

Opinion

OPINION

HALL, Judge.

¶ 1 In this declaratory judgment action, the trial court granted summary judgment to American Casualty of Reading, Pennsylvania (“American Casualty”) because the court determined that D.L. Withers Construction, L.C. (“Withers”) was not a proper claimant under a labor and material payment bond issued by American Casualty. We affirm.

BACKGROUND

¶2 The material facts are undisputed. Withers, the general contractor for the construction of Pinnacle High School, subcontracted the installation of the HVAC system to 1st Mechanical, Inc. of Arizona (“Mechanical”). Pursuant to the subcontract agreement, Mechanical agreed to furnish all labor, materials, and equipment necessary to completely install the HVAC system. As authorized by a boilerplate provision in the subcontract agreement, Withers required Mechanical to furnish a payment bond.1

¶ 3 In accordance with the subcontract agreement, Mechanical secured a subcontract labor and material payment bond from American Casualty that designated Withers as the obligee. The payment bond, which incorporated the subcontract agreement, provided:

Principal [Mechanical] and Surety [American Casualty] hereby jointly and severally agree with Obligee that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. Obligee shall not be liable for the payment of any costs or expenses of any such suit.

The payment bond defined “claimant” as “one having a direct contract with [Mechanical] for labor, material, or both, used or reasonably required for use in the performance of the contract].]”

¶ 4 When Mechanical fell behind schedule, Withers instructed Mechanical in writing to properly staff the project site, informing Mechanical that if it “is unable or unwilling to comply immediately, D.L. Withers Construction will assist your firm in completing [the] work].]” After a job site meeting at which it was agreed that Withers would assist Mechanical by supplying necessary additional labor to expedite the work, Withers contracted with Midstate Mechanical (“Midstate”) to complete the HVAC system.

¶ 5 Thereafter, American Casualty filed a declaratory judgment action seeking a determination that Withers was not a proper claimant under the payment bond for its payments to Midstate. Withers answered that American Casualty was estopped from denying Withers’ status as a claimant because Withers had given American Casualty notice of hiring Midstate to provide labor to Mechanical for installation of the HVAC system. Withers also filed a counterclaim alleging that the payment bond entitled it to recover the sums it paid to Midstate because the subcontract and job site agreements con[384]*384stituted “direct contracts” with Mechanical for labor reasonably required for use in the performance of the contract pursuant to the terms of the payment bond.

¶ 6 The parties filed motions and cross-motions for summary judgment on the issue of whether Withers could seek payment as a “claimant” under the payment bond notwithstanding its status as obligee. The trial court granted American Casualty’s cross-motion for summary judgment, ruling that “[a]n obligee under a labor and material payment bond is not entitled to payments for labor and material where the obligee completes the contract after the [subjcontractor’s default.” Withers timely appealed.

DISCUSSION

¶ 7 The dispositive issue in this case is whether Withers, the obligee under the payment bond, may also institute a lawsuit as a bond claimant and recover the sums it paid for labor pursuant to its contract with Midstate. We review de novo issues involving contract interpretation. Taylor v. Graham County Chamber of Commerce, 201 Ariz. 184, 192, ¶ 29, 33 P.3d 518, 526 (App.2001). We construe provisions in payment bonds in the same manner as other contracts, according to their plain and ordinary meaning. See Keggi v. Northbrook Prop. & Cas. Ins. Co., 199 Ariz. 43, 46, ¶ 11, 13 P.3d 785, 788 (App.2000).

¶8 Generally, a payment bond protects the obligee from claims by the principal’s unpaid laborers or suppliers. See Ayers Enters., Ltd. v. Exterior Designing, Inc., 829 F.Supp. 1330, 1333 (N.D.Ga.1993) (“[P]ayment bonds are intended to protect laborers and materialmen rather than the obligee of the bond.”); 11 George J. Couch & Lee R. Russ, Couch on Insurance § 163:10, at 163-21 (3d ed. 1998) (“The purpose of a payment bond or provision- is to protect the [obligee] ... against the claims of unpaid subcontractors or suppliers[.]”). In contrast, a performance bond indemnifies the obligee for the principal’s failure to fully perform the contracted work. See L & A Contracting Co. v. S. Concrete Sens., Inc., 17 F.3d 106, 109-11 (5th Cir.1994); 11 Couch on Insurance § 163:10, at 163-20.

¶ 9 Nonetheless, we agree with Withers’ contention that the classification of a bond as either a “performance” bond or a “payment” bond does not determine who may make a claim against the bond. See, e.g., Davis Wallbridge, Inc. v. Aetna Cas. & Sur. Co., 103 A.D.2d 1010, 478 N.Y.S.2d 389, 390 (A.D. 4 Dept.1984) (“[I]n all events, it is the language employed in the bond which determines the beneficiaries.”). However, the three eases relied upon by Withers to establish the duality of a bond, Webb v. Crane Co., 52 Ariz. 299, 80 P.2d 698 (1938); Ill-Mo Contractors, Inc. v. Aalcan Demolition & Contracting Co., 431 S.W.2d 165 (Mo.1968); and Neenah Foundry Co. v. Nat’l Sur. Corp., 47 Ill.App.2d 427, 197 N.E.2d 744 (1964), are all distinguishable. These cases involved performance bonds containing language purporting to benefit laborers and materialmen. Webb, 52 Ariz. at 310, 80 P.2d at 704 (bond required principal to pay for all labor performed and was therefore given “for the protection of those who labored or furnished material”); Ill-Mo Contractors, Inc., 431 S.W.2d at 168 (bond incorporated the subcontract agreement, which required the contractor (principal) to pay for all materials); Neenah Foundry Co., 197 N.E.2d at 746 (bond incorporated the subcontract agreement, which provided: “The contractor shall furnish owner with a surety performance bond for the work contracted for and for the payment of claims for labor performed and materials furnished.”). Here, however, the language of the payment bond cannot reasonably be construed to serve the dual function of a performance bond because the language does not purport to address Mechanical’s failure to perform the subcontract agreement, only its failure to pay laborers and materialmen.

¶ 10 Nor can the payment bond’s definition of “claimant” be reasonably construed to mean Withers.

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Bluebook (online)
64 P.3d 210, 204 Ariz. 382, 394 Ariz. Adv. Rep. 36, 2003 Ariz. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-casualty-co-v-dl-withers-construction-lc-arizctapp-2003.