Eagle Fire Protection Corp. v. First Indemnity of America Insurance

678 A.2d 699, 145 N.J. 345, 1996 N.J. LEXIS 953
CourtSupreme Court of New Jersey
DecidedJuly 22, 1996
StatusPublished
Cited by45 cases

This text of 678 A.2d 699 (Eagle Fire Protection Corp. v. First Indemnity of America Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eagle Fire Protection Corp. v. First Indemnity of America Insurance, 678 A.2d 699, 145 N.J. 345, 1996 N.J. LEXIS 953 (N.J. 1996).

Opinions

The opinion of the court was delivered by

GARIBALDI, J.

This appeal concerns the resolution of one question: in determining the one-year limitation period under which a claimant must [348]*348institute a suit in a surety bond, when does a general contractor “cease work” under a construction contract? Specifically, we must determine if the work of subcontractors on a construction site constitutes the work of the general contractor.

I

In May 1989, 185 Monmouth Parkway Associates (Parkway), a limited partnership, finalized its plans to renovate an office building. Pursuant to those plans, on May 8, 1989, Parkway hired Olsen & Hassold, Inc. (Olsen), as general contractor in charge of the renovation. The contract between Parkway and Olsen envisioned three phases. In Phase I, Olsen was to remove the asbestos in the building. Phase II consisted of the reconstruction and restoration of the building, and in Phase III, Olsen was to erect certain metal partitions in the building. Olsen never reached Phase III due to its financial demise.

One of Olsen’s obligations under the contract was to hire a surety company that would guarantee Olsen’s successful performance of its contractual duties. As a result, Olsen purchased a series of bonds from First Indemnity of America Insurance Co. (First Indemnity), who agreed to act as Olsen’s guarantor. The particular bond implicated in this case is a “labor and material bond.” That bond provided that First Indemnity, as surety, would pay claims made by subcontractors of Olsen, as principal, where the contractors had not been paid in full within ninety days of the completion of the subcontractor’s work. In drafting that bond, the parties simply filled in the blanks of the American Institute of Architects’ standard labor-and-material payment-bond form.

The Phase II renovation of the Parkway building included the installation of a sprinkler system in the building. Olsen purchased the sprinkler system from Eagle Fire Protection Corp. (Eagle Fire), and hired it to install the system for $129,437.50. Eagle Fire started working on the project in mid-September 1989 and completed it in June or July of 1990. Olsen made progress payments to Eagle Fire from October 1989 to early 1990. Howev[349]*349er, a later installment check from Olsen bounced, and by May 1990, Olsen had stopped making payments to Eagle Fire. When Eagle Fire’s president, William Yinsko, began to sense that he would have difficulty collecting from Olsen, he attempted to contact First Indemnity regarding its' obligation under the bond. However, First Indemnity failed to return numerous calls made by a Parkway representative on Eagle Fire’s behalf. Vinsko then retained counsel, Gerald Massell, Esq., to obtain from Olsen or First Indemnity the money owed Eagle Fire for the sprinkler system installation. Massell spoke with an Olsen vice-president about Olsen’s debt in April or May 1990, but was unable to elicit payment from Olsen. Massell was similarly unsuccessful in his eight month effort to persuade First Indemnity to pay Olsen’s debt to Eagle Fire.

On September 11, 1990, Parkway terminated its contract with Olsen. In April 1991, Olsen filed for bankruptcy. On May 23, 1991, Eagle Fire filed suit against First Indemnity, claiming that the bond rendered First Indemnity liable for Olsen’s sprinkler-system debt. The sole defense offered by First Indemnity was that Eagle Fire had not commenced its suit in a timely manner, and was thus precluded from recovering under the bond. First Indemnity based that argument on the following provision of the bond:

No suit or action shall be commenced hereunder by any claimant:
b) After the expiration of one (1) year following the date on which [Olsen] ceased work on [the] Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period permitted by such law. (Emphasis added).

Eagle Fire countered that it had, in fact, commenced its suit within one year of the day that Olsen “ceased work” on the contract. Eagle Fire argued in the alternative that if its suit had not been commenced in a timely manner, that was the fault of First Indemnity’s representatives, who employed delaying tactics and misled Eagle Fire into not bringing suit within the specified one-year window.

[350]*350The testimony at trial focused on two issues: 1) the date Olsen “ceased work” under the contract; and 2) the actions taken by First Indemnity that led Eagle Fire not to file suit until eight months after its initial contact with the surety company.

To establish its compliance with the bond’s limitation period, Eagle Fire had to prove that Olsen “ceased work” after May 23, 1990. Edward Puth, a managing agent for Parkway, testified that Olsen was working under the contract until September 11, 1990, when Parkway terminated the contract because of Olsen’s financial inability to fulfill its contractual duties. In support of that conclusion, Puth discussed the presence on the worksite through September 1990 of trailers that Olsen had rented to store partitions that were to be used in Phase III. Those trailers led Puth to conclude that Olsen was “working” under the contract until its ultimate cancellation. Puth admitted that at some time prior to the cancellation of the contract, although he could not remember the exact date, Olsen stopped paying the rental company for the use of trailers. The last time that Puth saw an Olsen employee on the site was “mid-1990.” That employee was Edward LaHaye, the Vice-President of Olsen’s asbestos removal division, with whom Puth met on that occasion. Puth did not know the last day that Olsen employees were physically working on the site.

William Vinsko testified for Eagle Fire that Olsen was “still on the job” as of January or February of 1990, working in different parts of the building. Defense counsel read to the jury Vinsko’s deposition testimony, in which he stated that Olsen had left the site by January 1990. Vinsko testified that Olsen’s subcontractors were working at the site through July and August of 1990, and perhaps even later.

Ed LaHaye testified for First Indemnity that the last day that Olsen employees physically worked at the site under the contract was September 8, 1989. He conceded, however, that when he resigned from his position with Olsen in August 1990, the metal partitions were still being stored in trailers on the site.

[351]*351Eagle Fire also attempted to establish that First Indemnity impermissibly misled or lulled Eagle Fire into not filing suit on an earlier date. Massell testified that his first attempt to obtain payment from First Indemnity was on September 18, 1990, when he wrote to the surety company to inform it that Olsen had defaulted on its debt to Eagle Fire. He warned, “If this matter cannot be settled within twenty (20) days, I will file suit against First Indemnity.” On September 28, 1990, Massell received a proof of loss form and a short note from Paul Alongi, Operations Manager at First Indemnity. In the note Alongi informed Massell that on receipt of the completed proof of loss form First Indemnity would begin its investigation into the validity of Eagle Fire’s claim.

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Cite This Page — Counsel Stack

Bluebook (online)
678 A.2d 699, 145 N.J. 345, 1996 N.J. LEXIS 953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eagle-fire-protection-corp-v-first-indemnity-of-america-insurance-nj-1996.