Stockton v. Silco Construction Co.

860 P.2d 851, 123 Or. App. 504, 1993 Ore. App. LEXIS 1686
CourtCourt of Appeals of Oregon
DecidedOctober 6, 1993
Docket9108-04931; CA A75975
StatusPublished
Cited by2 cases

This text of 860 P.2d 851 (Stockton v. Silco Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stockton v. Silco Construction Co., 860 P.2d 851, 123 Or. App. 504, 1993 Ore. App. LEXIS 1686 (Or. Ct. App. 1993).

Opinion

DEITS, P. J.

The individual plaintiffs (plaintiffs) were employed by B & R Excavation (B & R), a subcontractor on several public works projects. Defendant Silco Construction Company (defendant)1 was the general contractor. B & R failed to pay plaintiffs the prevailing rate of wage. It is now bankrupt. Plaintiffs brought this action to recover the deficiency from defendant, along with other relief. They proceeded, inter alia, on two theories: That they are third-party beneficiaries of defendant’s contracts with the public bodies for whom the projects were undertaken, and that they have a statutory right to recover from defendant under ORS 279.365.2 The trial court granted defendant’s motion for summary judgment. Plaintiffs appeal, and we affirm.

We turn first to plaintiffs’ statutory claims. As we construe the applicable statutes, they make subcontractors, rather than the general contractor, directly responsible for making the required payments to their own employees and also impose direct liability on the subcontractors, rather than the general contractor, for deficiencies. See ORS 279.350(1); ORS 279.356(1). Moreover, the contracts between defendant and B & R required the latter to pay its employees in accordance with the requirements of the prevailing wage rate statutes.

Plaintiffs do not seriously dispute the foregoing propositions. They argue, however, that the general contractor can nevertheless be accountable for a subcontractor’s default and that they are entitled to direct recourse against defendant under ORS 279.365(1). They rely on the phrase in that statute that includes among the available relief that the court may “require the contractor to pay the prevailing rate of wage and any deficiencies that can be shown to exist because of improper wage payments already made.” Plaintiffs note that every other reference in the statute is to contractors or subcontractors in the disjunctive, while the quoted phrase is unique in referring only to the contractor. [507]*507Plaintiffs reason that the quoted language must, therefore, contemplate a right to recover payment from the contractor, regardless of whether the deficient performance was by it or a subcontractor.

Defendant responds that the remedies under ORS 279.365 contain several conditions precedent, one of which is that they relate only to contracts where payments remain due from the contracting public agency to the contractor. Here, the contracts in question have been fully performed. We need not decide whether plaintiffs’ broad proposition is correct as it pertains to all of the remedies in the statute. See Metro. Service Dist. v. Tigard Electric, Inc., 112 Or App 492, 829 P2d 727 (1992). However, we agree with defendant that, reading the statutory scheme as a whole, the remedy that plaintiffs seek is beyond the contemplation of ORS 279.365.

The relevant provisions contain a number of clearly-defined remedies and identify the parties against whom they may be pursued. ORS 279.526 and ORS 279.536 allow employees in plaintiffs’ position to bring a direct action on the contractor’s bond, regardless of whether the contractor or a subcontractor is delinquent in payments.3 ORS 279.356 provides that a contractor or subcontractor that fails to make required payments is directly hable for unpaid wages and that that liability may be enforced as in “actions on contractors’ bonds as provided for in ORS 279.356.” The existence of the specific statutory provisions for those remedies make it likely that, had the legislature intended a direct right of action against the contractor under these circumstances, it would have so provided with comparable specificity.

Unlike the statutes and remedies discussed above, the language in ORS 279.365 on which plaintiffs rely is ambiguous. It is clear that some of the other remedies enumerated in that section are mechanically unavailable except in the context of ongoing contracts. For example, the enhanced withholding by the public body for which the statute provides can only occur while payments from that body remain due. The language that plaintiffs emphasize directly follows and is part of the same sentence as the provisions [508]*508relating to withholding and the conditions under which it may be required.

On the face of ORS 279.365 itself, the language in question can plausibly be read, as plaintiffs urge, to provide a remedy wholly independent of others in the section, or, as defendant argues, to be available only when the “ongoing contract” condition precedent to the other remedy described in the same sentence is present. However, when the context of the statutory scheme is considered, defendant’s reading becomes more plausible. As we have noted, separate provisions of the statutes expressly provide persons in plaintiffs’ position with a direct remedy against the contractor’s bond and with a direct remedy against a defaulting subcontractor. Both remedies are obtainable in an action for damages under ORS 279.536. No comparable right of action against the contractor is provided for under these circumstances. ORS 279.365 is, generally, an enforcement provision, rather than one for the recovery of damages. Given that context, we conclude that the legislature did not intend in the murky language of ORS 279.365 to create a right of direct recourse against a contractor, which is not the immediate employer, for a subcontractor’s deficient payments during an already completed public works contract. Rather, we construe the entire first sentence of ORS 279.365 to apply only when payments from the public agency to the general contractor remain due, and the contractor retains the possibility of recourse against the noncomplying subcontractor. Accordingly, we hold that the trial court properly granted summary judgment for defendant on plaintiffs’ statutory claims.

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Related

State v. Moa
2009 UT App 231 (Court of Appeals of Utah, 2009)
Stockton v. Silco Construction Co.
877 P.2d 71 (Oregon Supreme Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
860 P.2d 851, 123 Or. App. 504, 1993 Ore. App. LEXIS 1686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stockton-v-silco-construction-co-orctapp-1993.