JAVELER CONST. CO., INC. v. Federal Ins. Co.

472 So. 2d 258, 1985 La. App. LEXIS 8734
CourtLouisiana Court of Appeal
DecidedJune 25, 1985
DocketCA 84 0703
StatusPublished
Cited by7 cases

This text of 472 So. 2d 258 (JAVELER CONST. CO., INC. v. Federal Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JAVELER CONST. CO., INC. v. Federal Ins. Co., 472 So. 2d 258, 1985 La. App. LEXIS 8734 (La. Ct. App. 1985).

Opinion

472 So.2d 258 (1985)

JAVELER CONSTRUCTION COMPANY, INC.
v.
FEDERAL INSURANCE COMPANY.

No. CA 84 0703.

Court of Appeal of Louisiana, First Circuit.

June 25, 1985.

*259 Ralph K. Lee, New Iberia, for plaintiff-appellee Javeler Const. Co., Inc.

R. Bruce Macmurdo, Baton Rouge, for defendant-appellant Federal Ins. Co.

Before COLE, CARTER and LANIER, JJ.

LANIER, Judge.

This action commenced as a suit in contract for the balance due to a subcontractor on a public work project. Made defendants were the State department that authorized the work, the general contractor for the work, the subcontractor of the general contractor with whom the plaintiff contracted and the surety of the general contractor. The plaintiff and the surety entered into a joint stipulation of facts. The plaintiff moved for summary judgment against the surety based on the facts stipulated. The district court granted summary judgment in favor of the plaintiff for $84,000, with legal interest thereon from date of judicial demand and awarded an attorney fee of 10% of the principal and interest. This suspensive appeal followed.

*260 FACTS

The parties stipulated the following facts:

1. The Louisiana Department of Transportation and Development (hereinafter `DOTD') entered into a written contract dated April 4, 1979, with Tobilar, Inc. (hereinafter `Tobilar'), under which Tobilar agreed to construct State Project Numbers 64-04-20 and XXX-XX-XX entitled the `Golden Meadow-Larose Highway (Section 1)' in Lafourche Parish for $10,713,135.79 in accordance with certain plans and specifications.
2. The contract between DOTD and Tobilar was bonded by a contractor's surety bond issued by Federal Insurance Company (hereinafter `Federal'), binding Tobilar and Federal in solido unto DOTD and all subcontractors and furnishers of materials and equipment in the full sum of $10,713,135.79 for all lienable claims under the Louisiana Public Works Act, La.R.S. 38:2241, et seq.
3. Tobilar and Mid-Gulf Construction Co., Inc. (hereinafter `Mid-Gulf') entered into a written subcontract dated April 17, 1979, in which Mid-Gulf agreed to perform on a turn-key basis all of Tobilar's obligations under Tobilar's contract with DOTD for the construction of State Project Numbers 64-04-20 and XXX-XX-XX.
4. Mid-Gulf entered into a written subcontract with Javeler Construction Co., Inc. (hereinafter `Javeler'), dated February 13, 1980, in which Javeler agreed to perform sand unloading operations in connection with State Project Numbers 64-04-20 and XXX-XX-XX. The subcontract called for Javeler to unload approximately 1,168,767 cubic yards of sand at 37 cents per cubic yard, and also provided that Javeler was to be paid a monthly minimum of $40,000.00 regardless the number of cubic yards of sand actually unloaded.
5. Javeler performed sand unloading operations from mid-February of 1980 through October 22, 1980, under the subcontract with Mid-Gulf. The sand operations consisted of Javeler using its dragline to unload sand from barges owned or chartered by Mid-Gulf and placing the sand in a pile on the ground at the unloading site, which was located several miles from State Project Numbers 64-04-20 and XXX-XX-XX. Mid-Gulf loaded the sand into trucks owned or operated by Mid-Gulf, and hauled the sand from the unloading site to the road project.
6. Javeler invoiced Mid-Gulf, and was paid by Mid-Gulf, $38,500.00 for the month of February, which included a $20,000.00 mobilization charge as stipulated in the contract between Mid-Gulf and Javeler, and $40,000.00 per month for the months of March, April, May, June, and July of 1980. Javeler also invoiced Mid-Gulf $40,000.00 per month for the months of August, September, and October of 1980, of which Mid-Gulf only paid $36,000.00, leaving $84,000.00 unpaid.
7. The subcontract between Javeler and Mid-Gulf was terminated by Mid-Gulf on or about October 21, 1980.
8. In the performance of the sand unloading subcontract with Mid-Gulf, Javeler unloaded slightly less than 400,000 cubic yards of sand. Javeler did not unload enough sand during any month of operations to invoice Mid-Gulf more than the minimum charge of $40,000.00, which was due according to the terms of the contract regardless of the amount of sand unloaded.
9. Javeler was paid a total of $254,500.00 by Mid-Gulf for unloading sand, which amounts to approximately 64 cents for each cubic yard of sand unloaded by Javeler.
10. Javeler made demand in writing upon DOTD, Tobilar, Mid-Gulf, and Federal for $91,474.34 on January 6, 1981.
11. Javeler recorded a sworn statement of the amount due in the mortgage records of Lafourche Parish on February 26, 1981, claiming $84,000.00 as the amount due.

*261 IS THE WORK JAVELER PERFORMED COVERED BY FEDERAL'S STATUTORY BOND?

Federal contends the work performed by Javeler is not covered under the Louisiana Public Contracts Law, La.R.S. 38:2241 et seq., because the work was not performed on the construction site and was not performed directly on the public work, the work merely involved an intermediate act of transportation and the work was done by manned rental equipment.

The district court gave the following rationale for finding the claim was covered by Federal's bond:

In order for Javeler to hold Federal liable under R.S. 38:2241, it is a prerequisite either that there be privity of contract between Javeler and the general contractor, or that Javeler furnished work, labor or materials to a contractor or subcontractor. Javeler concedes that privity of contract does not exist. The Court finds that the contract between Javeler and Mid-Gulf was one for work done or labor performed on the state project and that Javeler, having performed under the contract, is therefore a creditor with a lienable claim for the following reasons.
The Court believes that the unloading operation performed by Javeler is a `work done' within the meaning of the Public Works Act, and not merely the lease or rental of equipment. There is a distinction between the rental of machinery or equipment and hiring a subcontractor in the business of providing unloading operations to perform a necessary element of the project which would otherwise have been performed by Mid-Gulf. The facts of this case indicate that Javeler contracted to furnish all labor, equipment, supervision, material and supplies for performance of sand unloading operations. Javeler performed these operations for approximately eight months using its dragline to unload sand from barges owned or chartered by Mid-Gulf and placing the sand in a pile on the ground at the unloading site....
The Court further finds that the `work done' by Javeler was in direct relation to the construction of Section 1 of the Golden Meadow-Larose Highway in accordance with the test set forth in the Coating Specialist [Coating Specialists, Inc. v. Pat Caffey Contractor, Inc., 194 So.2d 380 (La.App. 4th Cir.1967), writ refused, 250 La. 633, 197 So.2d 652 (1967)] case cited by both Javeler and Federal. By contracting with Tobilar, Mid-Gulf agreed to perform all duties necessary to construct the highway. One of the components of the project, the unloading of sand to be used in the construction, was subcontracted to Javeler.

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Cite This Page — Counsel Stack

Bluebook (online)
472 So. 2d 258, 1985 La. App. LEXIS 8734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/javeler-const-co-inc-v-federal-ins-co-lactapp-1985.