Bordelon Bros. Towing Co. v. Piling & Structures, Inc.

906 F.2d 528, 1990 WL 90253
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 19, 1990
DocketNo. 89-3707
StatusPublished
Cited by1 cases

This text of 906 F.2d 528 (Bordelon Bros. Towing Co. v. Piling & Structures, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bordelon Bros. Towing Co. v. Piling & Structures, Inc., 906 F.2d 528, 1990 WL 90253 (11th Cir. 1990).

Opinions

HENLEY, Senior Circuit Judge:

Piling & Structures, Inc. (“Piling”) and Hartford Accident & Indemnity Company (“Hartford”) appeal a judgment for Borde-lon Brothers Towing Company (“Borde-lon”) after a bench trial,1 following which on June 13, 1989, the court issued its opinion and ordered judgment for Bordelon in the amount of $41,816.40. Jurisdiction in the district court was based on diversity of citizenship of the parties. See 28 U.S.C. § 1332.

This dispute arose from a commercial transaction involving the State of Florida, which contracted with Piling to remove a bridge over Indian Key Channel in Monroe County, Florida. Piling contracted with Hartford to provide an indemnity bond as required by section 255.05(1) of the Florida Statutes,2 a part of the “Little Miller Act” (“the Act”), which establishes bonding requirements for contractors who do construction work on public projects in Florida. Piling subcontracted the job to Offshore, Inc./Lee Statler (“Offshore”), which in turn contracted with Bordelon, to provide the barges needed for the job. Pursuant to the contract between Bordelon and Offshore, Bordelon received some advance payments for rental of its barges to Offshore for September and October, 1986. Offshore, however, continued to use the barges after October, 1986, and Bordelon was unable to obtain payment from Offshore for their continued rental.

On December 12, 1986 Bordelon wrote Piling and advised it that Offshore owed it some $24,000.00 as of December 1, 1986. Acting under Piling’s agreement with Offshore, Bordelon requested payment from Piling.3 Piling refused to pay Bordelon, after being advised by its counsel that Bor-delon had failed to comply with the notice requirements of section 255.05(2)4 of the Act.

The parties agree that our standard of review in this appeal is plenary, since only issues of law are involved. See, e.g., Bail[530]*530ey v. Carnival Cruise Lines, Inc., 774 F.2d 1577, 1578 (11th Cir.1985).

I.

Appellants first argue that, since Bordelon received partial prepayment for the rental of the barges, this bars it from seeking recovery under the statute. They argue the plain language of subsection (2) (“A claimant ... who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies _”) precludes payment, since Borde-lon has already received some monies.

Bordelon responds by arguing that the only reasonable construction of the statute is that those who have outstanding debts owed to them may look to the general contractor when the subcontractor fails to pay. Bordelon cites D.I.C. Commercial Constr. Corp. v. Knight Erection & Fabrication, Inc., 547 So.2d 977 (Fla.Dist.Ct.App.1989), which involved a claimant who received payment for work on a project and yet was also allowed to recover for subsequent, additional work on a related project, performed pursuant to a second contract.

The essence of appellants’ argument is that since the Act provides an avenue for relief for those who are “unpaid,” the fact that Bordelon received some payment for its work on the project — regardless of how small or in what circumstances — blocks its access to the courthouse doors, since one receiving money cannot simultaneously qualify as an “unpaid” claimant. Thus, it is without “standing” to bring the instant claim.

Counsel for appellants neither expounded on nor clarified this issue at oral argument. Indeed, in their reply brief appellants acknowledge the argument in their original brief was “not well-structured.” However, the issue was not abandoned.

We see some superficial appeal in the “standing” argument, since the language of the statute could be rigidly interpreted to limit claimants to those who have received absolutely no money for the work they have done or were not fully paid in advance. However, it is also reasonable to find that those who have received some, but not all the money owed them, are “unpaid” to the extent of the outstanding debt.

Since we find the language of the statute less than clear when applied against the associated facts of this case, we attempt to determine the intent of the legislature in order to resolve this question of statutory interpretation. See Gergora v. R.L. Lapp Forming, Inc., 619 F.2d 387, 389 (5th Cir.1980); Devin v. City of Hollywood, 351 So.2d 1022, 1023 (Fla.DistCt.App.1976). We believe it extremely unlikely that the legislature would consider Bordelon “paid,” in the context of the statutory scheme involved here, simply because it has received some funds under a contract. Therefore, because of the remedial nature of the statute and the liberal construction which it has been given, see Gergora, 619 F.2d at 389; City of Fort Lauderdale v. Hardrives Co., 167 So.2d 339, 340 (Fla.Dist.Ct.App.1964), we hold that Bordelon is not barred from bringing this action under the “unpaid” criteria of Subsection 2. We consequently move on to the issue which we think controls this case, and upon which the parties focused at oral argument.

II.

Appellants argue that Bordelon failed to give notice within 45 days of beginning work as required by subsection (2). See supra note 4. It is undisputed by the parties that notice is a condition precedent to recovery under the statute. See W.G. Mills, Inc. v. M & MA Corp., 465 So.2d 1388, 1390-91 (Fla.Dist.Ct.App.1985). Appellants maintain that the 45-day requirement for notice began to run on the day Bordelon commenced performing the contract, September 5, 1986, not later, when delinquency occurred or at least became apparent. They cite the following language of subsection (2): “within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work” (emphasis supplied). Like Bordelon, appellants draw our attention to D.I.C. Commercial Construction, which they argue demonstrates that timely notice was lacking here. The D.I. C. court found time[531]*531ly notice where a new contract was executed and the notice period began to run from the date of commencement of performance on that new contract. Since no new contract was executed in the instant case, Piling asserts that the holding in D.I.C. works against Bordelon.

Bordelon emphasizes the remedial purpose of the statute and indicates a liberal interpretation of the notice requirement is consistent with the intent of the legislature to “protect[ ] ... materialmen, laborers and the like, whose labor and materials are put onto public works projects, upon which they can acquire no lien.” City of Fort Lauderdale, 167 So.2d at 340.

However, with equal fervor, appellants point out it is clear that the statute also “protects the contractor and the contractor’s surety from having to account to unknown subcontractors and suppliers”. Blosam Contractors, Inc. v. Joyce, 451 So.2d 545, 547 (Fla.Dist.Ct.App.1984).

In order to resolve this issue we again look to the statute to see what the language dictates.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
906 F.2d 528, 1990 WL 90253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bordelon-bros-towing-co-v-piling-structures-inc-ca11-1990.