Ins. Co. v. Julien P. Benjamin Equip. Co.
This text of 481 So. 2d 511 (Ins. Co. v. Julien P. Benjamin Equip. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
INSURANCE COMPANY OF NORTH AMERICA, Appellant,
v.
JULIEN P. BENJAMIN EQUIPMENT CO., Appellee.
District Court of Appeal of Florida, First District.
*512 Stephen P. Rakusin, P.A., Gainesville, for appellant.
Arnold H. Slott of Block & Slott, P.A., Jacksonville, for appellee.
ZEHMER, Judge.
This is an appeal from an order granting a summary judgment for the plaintiff below, Julien P. Benjamin Equipment Co., in its action to recover sums due on invoices and statements of account rendered to Hancock Marine, Inc. Hancock was the principal on a labor and materials payment bond issued by the appellant, Insurance Company of North America (INA), in reference to a construction contract for a project located in North Miami Beach. We affirm.
The plaintiff's amended complaint alleged that in furtherance and performance of the construction contract, purchases of materials, equipment, and supplies were made by Hancock Marine from the plaintiff for use on the project and equipment was rented from plaintiff for use on the project, as indicated on the invoices attached to the complaint. The complaint continued that plaintiff is owed a certain sum for such materials, supplies, and equipment as shown on the invoices, and that the defendant never objected to the invoices or any of the charges made thereon. INA was joined as the surety on the labor and material payment bond and filed an answer containing a general denial but no affirmative defenses. Thereafter, plaintiff filed a motion for summary judgment supported by an affidavit of its executive vice president based upon personal knowledge. The affidavit recites affiant's knowledge and familiarity with plaintiff's financial books and records of account concerning the materials, equipment, and supplies sold and furnished by plaintiff to Hancock Marine. The affiant then states that, in furtherance and performance of the construction project, materials, equipment, and supplies were purchased and equipment was rented from plaintiff and used in and on the project and that the terms and sums due for these purchases and rentals are reflected on the true copies of the invoices attached to the affidavit which was sent to the defendants and to which no objection was made. The affidavit concludes that demand for payment was made against both the principal, Hancock Marine, and the *513 surety, INA, but that both failed to make payment and the sums remain due and owing.
The record reflects that no countervailing affidavits were filed by INA or Hancock and that defendants did not otherwise controvert the assertions of fact in this affidavit. The trial court concluded that the statements in the affidavit were sufficient to establish plaintiff's claim, and entered summary judgment against INA for this amount.
The first point raised by appellant is that a genuine issue of material fact existed as to the dollar amount of the rental value of appellee's claim that precluded the entry of summary judgment in the amount shown by the invoices. We conclude, however, that the affidavit filed in support of plaintiff's motion for summary judgment and the attached invoices were sufficient to establish plaintiff's cause of action to recover for materials and supplies sold and for the rental on equipment supplied to INA's principal for use on the project. The record did not contain any other affidavits, depositions, or competent evidence to dispute the truthfulness of plaintiff's affidavit. Accordingly, in the absence of any countervailing evidence to raise such a dispute, the trial court was correct in ruling that no disputed issues of material fact were shown to exist and that judgment should be entered for plaintiff as a matter of law. It is well established that:
[T]o defeat a motion which is supported by evidence which reveals no genuine issue, it is not sufficient for the opposing party merely to assert that an issue does exist. If the moving party presents evidence to support the claimed non-existence of a material issue, he will be entitled to a summary judgment unless the opposing party comes forward with some evidence that will change the result that is, evidence sufficient to generate an issue on a material fact.
Harvey Building, Inc. v. Haley, 175 So.2d 780, 782 (Fla. 1965). See also Landers v. Milton, 370 So.2d 368 (Fla. 1979).
It is true that the bond in this case contained language limiting its coverage to "all labor and materials used or reasonably required for use in the performance of the contract." INA argues that this language of the bond is the equivalent of the language in section 713.01(6), Florida Statutes (1983), which defines "furnished materials," for purposes of enforcing a mechanic's lien under chapter 713, as including "tools, appliances, or machinery used on the particular improvement to the extent of the reasonable rental value for the period of actual use (not determinable by the contract for rental unless the owner is a party thereto), but does not include supplying handtools."
Using this analogy, INA contends that it was incumbent upon plaintiff to establish not only that certain equipment was rented for use on the project and the amount billed therefor, but also to establish the amount of actual use and the reasonable rental value of such actual use. But this argument improperly confuses the legal concepts underlying recovery in contract and recovery under a perfected lien. We construe the language of the bond to mean literally what it says, i.e., that the bond covers equipment and supplies shown to have been used or furnished for use on the project in question, and nothing more. We distinguish from this the language found in the statute, which, in our view, is substantially more restrictive and clearly requires actual proof of the time of use of rental equipment and the reasonable value thereof unless the owner of the project is shown to have been a party to the rental contract covering such equipment. No doubt this exception regarding the owner is included in the mechanic's lien statute because the lien statute operates to impose a charge against the owner's property for the reasonable value of materials and equipment used for its improvement whether or not the owner contracted for such equipment. When the owner does so contract, the contract price, not the reasonable value is the measure of the supplier's recovery. In the instant case, a direct contractual relationship existed between plaintiff *514 and Hancock Marine, the principal under the bond. Pursuant to this direct contractual relationship, the parties agreed to the rental of the equipment, the terms of that rental, and that Hancock Marine was contractually obligated to pay that amount to the plaintiff. Hence, the reasonable value of rental standard argued by INA is inappropriate.
The second point raised by INA questions whether the trial court erred in refusing to consider a controverting affidavit filed by Hancock Marine to dispute the motion for summary judgment. We find no error in the trial court's refusal to consider this affidavit for two reasons. First, the motion for summary judgment was filed at least thirty days before hearing thereon. At the request of INA, made at the first scheduled hearing on the motion, the trial court, acting well within its discretion, granted a continuance of the hearing to another date certain on condition that INA would not be permitted to file affidavits or other documents and thereby generate new issues not already made.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
481 So. 2d 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ins-co-v-julien-p-benjamin-equip-co-fladistctapp-1985.