RE MONKS CONST. v. Aetna Cas. & Sur.

944 P.2d 517, 189 Ariz. 575
CourtCourt of Appeals of Arizona
DecidedAugust 26, 1997
Docket1CA-CV96-0477
StatusPublished

This text of 944 P.2d 517 (RE MONKS CONST. v. Aetna Cas. & Sur.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
RE MONKS CONST. v. Aetna Cas. & Sur., 944 P.2d 517, 189 Ariz. 575 (Ark. Ct. App. 1997).

Opinion

944 P.2d 517 (1997)
189 Ariz. 575

R.E. MONKS CONSTRUCTION COMPANY, a Colorado corporation, Plaintiff-Appellant,
v.
AETNA CASUALTY & SURETY COMPANY, a foreign corporation, Defendant-Appellee.

No. 1CA-CV96-0477.

Court of Appeals of Arizona, Division 1, Department E.

August 26, 1997.

Guy Wm. Bluff, P.C. by Guy Wm. Bluff and Bruce A. Smidt, Phoenix, for Plaintiff-Appellant.

Jones, Skelton & Hochuli by Eileen J. Dennis and James J. Osborne, Phoenix, for Defendant-Appellee.

*518 VOSS, Judge.

Appellant R.E. Monks Construction Company (Monks) appeals from the trial court's entry of judgment in favor of Appellee Aetna Casualty & Surety Company (Aetna) on the ground that Monks did not timely file suit on the statutory payment bond Aetna issued as surety for JWJ Contracting Company (JWJ). We affirm.

FACTS AND PROCEDURAL HISTORY

The parties stipulated to the following facts. On October 23, 1991, JWJ entered into a prime contract with the Arizona Department of Transportation (ADOT) for a road construction project on State Route 87. Because this was a public construction project, JWJ was required to obtain a payment bond. Arizona Revised Statutes Annotated section (A.R.S. § ) 34-222. Aetna issued the statutory payment bond with JWJ as principal and Aetna as surety.

On October 31, 1991, JWJ and Monks entered into a subcontract agreement for work on the project. Monks moved its equipment onto the project site in November of 1991, and began work in January of 1992. The project was deemed substantially complete after May 1993, but was never finally accepted by ADOT's engineer. After May 1993, JWJ removed its field office trailer from the project site and JWJ, ADOT, and Monks met at off-site locations. The last date Monks was physically on the project site was July 31, 1993. As late as February 9, 1994, however, Monks engaged in project close-out, project administration, and final negotiations regarding the extra work it performed prior to July 31, 1993.

JWJ failed to pay several of Monks's invoices and filed for federal bankruptcy protection on July 1, 1994. Monks filed suit on the payment bond on August 3, 1994. The matter went to mandatory arbitration and the arbitrator found for Monks. Aetna appealed the arbitrator's decision. The parties filed cross-motions for summary judgment, which the trial judge denied. The parties then submitted the case to the trial judge on stipulated statements of fact. The trial judge found that Monks's complaint was untimely filed, and entered judgment in favor of Aetna. Monks timely appealed.

DISCUSSION

Because the parties have stipulated to the facts, the only issue before this court is the interpretation of the limitations statute contained in A.R.S. § 34-223(B). Statutory interpretation is an issue of law that we review de novo. Wareing v. Falk, 182 Ariz. 495, 497, 897 P.2d 1381, 1383 (App.1995).

This suit was brought pursuant to the provisions of Arizona's "Little Miller Act," which governs bonding for public construction projects. A.R.S. §§ 34-221 to 34-226. This act imposes the following time limitation for suits on the general contractor's payment bond:

Every suit instituted under this section shall be brought in the name of the claimant, but no such suit shall be commenced after the expiration of one year from the date on which the last of the labor was performed or materials were supplied by the person bringing this suit.

A.R.S. § 34-223(B). It is uncontested that the last date Monks's employees were physically on the construction site and, therefore, the last possible date Monks did any actual road construction, was July 31, 1993. At issue is whether other administrative tasks performed after that date constitute "labor" under the statute. Specifically, Monks argues that Aetna's stipulations that within one year of Monks's filing suit Monks engaged in project closeout, project administration, and final negotiations regarding extra work, and that these tasks were in direct completion of the prime contract between JWJ and ADOT and were not performed to correct defects or make repairs, require a finding that Monks's suit was timely filed. Aetna responds that Monks's stipulation that none of these tasks involved physical labor at the project site requires this court to uphold the trial court's determination that Monks's suit was untimely.

We recognize that the Little Miller Act is a remedial statute that must be liberally construed to protect subcontractors providing labor and materials for a public construction project. Western Asbestos Co. *519 v. TGK Constr. Co., Inc., 121 Ariz. 388, 391, 590 P.2d 927, 930 (1979); Coast to Coast Mfg. v. Carnes Constr., Inc., 145 Ariz. 112, 113, 700 P.2d 499, 500 (App.1985). Such a construction must not, however, simply disregard limitations the legislature imposed, but give effect to the purpose of the limitations. Coast, 145 Ariz. at 113, 700 P.2d at 500.

This court has previously held that the limitations period under A.R.S. § 34-223 does not begin to run until completion of all work performed in direct furtherance of the construction contract. Honeywell, Inc. v. Arnold Constr. Co., Inc., 134 Ariz. 153, 156-57, 654 P.2d 301, 304-05 (App.1982). In Honeywell, we distinguished work performed in direct completion of the contract, which extends the limitations period, from remedial, repair, and warranty work, which does not extend the limitations period. Id. at 156-58, 654 P.2d at 304-06. Accord, United States ex rel. Austin v. Western Elec. Co., 337 F.2d 568, 572-73 (9th Cir.1964). Under the test as stated in Honeywell, the parties' stipulations appear to require a finding that Monks timely filed suit because the parties agreed that within one year of filing suit Monks did work in direct completion of the contract and this work did not constitute remedial or repair work. At issue in Honeywell, however, was physical labor performed either at the job site or on materials incorporated into the building under construction. Honeywell, 134 Ariz. at 157, 654 P.2d at 305. We did not address whether the limitations period begins to run from the subcontractor's completion of physical labor at the job site, or whether administrative work required by the contract is also considered "labor" for purposes of extending the limitations period under the statute. We resolve that issue in this case.

We have found no case law in Arizona directly on point. We, therefore, look to cases interpreting the federal Miller Act on which the Arizona statute is based.

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R.E. Monks Construction Co. v. Aetna Casualty & Surety Co.
944 P.2d 517 (Court of Appeals of Arizona, 1997)

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