J Bobby Currin & Son v. Hartford Accident

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 31, 1998
• Docket: 97-1050
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-1050

United States of America, for the use and benefit of J. BOBBY CURRIN & SONS, a North Carolina General Partnership,

Plaintiff - Appellant,

versus

HARTFORD ACCIDENT AND INDEMNITY COMPANY,

Defendant - Appellee,

and

J & W BUILDERS, INCORPORATED,

Defendant.

Appeal from the United States District Court for the Middle Dis- trict of North Carolina, at Greensboro. Frank W. Bullock, Jr., Chief District Judge. (CA-95-533-2)

Submitted: June 9, 1998 Decided: August 31, 1998

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. George K. Freeman, Jr., ROUNTREE & SEAGLE, L.L.P., Wilmington, North Carolina; Benjamin N. Thompson, THOMPSON & GODWIN, L.L.P., Dunn, North Carolina, for Appellant. C. Hamilton Jarrett, ELLZEY & BROOKS, L.L.C., Raleigh, North Carolina; James Lynn Werner, Cheryl L. Behymer, ELLZEY & BROOKS, L.L.C., Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

2 PER CURIAM:

J. Bobby Currin & Sons (“Currin”) appeals the district court’s

order granting summary judgment in favor of Hartford Accident and

Indemnity Company (“Hartford”), in this action filed under the

Miller Act, 40 U.S.C.A. §§ 270a to 270d (West 1986 & Supp. 1998).

Currin sought payment in excess of $310,000 under the payment bond

issued by Hartford, as surety, for the work Currin did as a subcon-

tractor on a government project. Hartford asserted in its motion

for summary judgment that Currin’s claim was barred by the one-year

statute of limitations. See 40 U.S.C.A. § 270b. Currin responded

that the doctrine of equitable estoppel precluded Hartford from

raising the limitations defense. The district court granted summary

judgment in Hartford’s favor and dismissed Currin’s action as un-

timely filed, relying on United States ex rel. Humble Oil & Re-

fining Co. v. Fidelity & Casualty Co. of New York, 402 F.2d 893,

898 (4th Cir. 1968).

We have carefully examined the record, the briefs, and the

opinion of the district court. We agree with the district court

that Currin failed to satisfy the requirements of equitable

estoppel and, therefore, affirm the grant of summary judgment on

the reasoning of the district court. See United States ex rel. J.

Bobby Currin & Sons v. Hartford Accident & Indem. Co., No. CA-95-

533-2 (M.D.N.C. Dec. 13, 1996). We dispense with oral argument

3 based on our prior order granting the unopposed motion to submit

the case on briefs.

AFFIRMED