United States Fidelity & Guaranty Co. v. Rome Concrete Pipe Co.

348 S.E.2d 83, 179 Ga. App. 882, 1986 Ga. App. LEXIS 2046

• Court: Court of Appeals of Georgia
• Decided: July 2, 1986
• Docket: 71804
• Status: Published

Opinions

Benham, Judge.

Appellee Rome Concrete Pipe Company, Inc., supplied construction materials to a general contractor working on seven projects let by the Department of Transportation (DOT). Appellant United States Fidelity & Guaranty Company (USF&G) was the surety named in the payment and performance bonds given pursuant to OCGA § 36-82-101. Alleging that the general contractor had filed a petition in bankruptcy without paying for the materials supplied, appellee filed suit against appellant on June 29, 1984. Appellant sought summary judgment based upon the one-year statute of limitation contained in OCGA § 36-82-105 and, when the trial court denied the motion, sought interlocutory review of the decision in this court. We granted appellant’s application and affirm the trial court’s ruling.

OCGA § 36-82-105, the statute of limitation at issue, is stated in the conjunctive: no action on payment or performance bonds required by OCGA § 36-82-101 may be instituted “after one year from the completion of the contract and the acceptance of the . . . public work by the proper public authorities.” (Emphasis supplied.) It is undisputed that the work on the seven projects at issue was accepted by the DOT over a year before the present lawsuit was filed. The focus, then, is on when the contracts were completed. Appellant contends a contract is completed and the statute of limitation begins to run upon acceptance of the work by the proper public authority. However, equating completion of the contract with acceptance of the work negates the conjunctive nature of the statute, rendering one element meaningless. A statute should be construed in a manner that will not render its language meaningless or mere surplusage. State of Ga. v. C. S. B., 250 Ga. 261 (297 SE2d 260) (1982); Lovett Sports v. Atlantic Exhibit Svcs., 178 Ga. App. 278, 280 (342 SE2d 726) (1986).

The record in this case does not lend itself to summary adjudication. By means of an affidavit, the assistant office engineer of the Contracts Administration Department of the DOT stated that DOT contracts are not completed until a two-stage process is accomplished: the project must be accepted by the DOT Construction Department and the Contracts Administration Department must audit and check the contract items and requests for payment. Completion of the latter stage is evidenced by the execution of a “Final Statement Check Sheet” and a “Standard Final Release” for each project. The completed final documentation for two of the seven projects at issue was attached as exhibits to the engineer’s affidavit, and they show July 5, 1983, as the date “checking completed and statement passed.” The affiant averred that the completing documentation on the remaining five projects had not been executed as of the date of his affidavit, December 26, 1984. Since July 5, 1983, was the date two of the seven contracts were completed, appellee’s lawsuit, filed on June 29, 1984, was filed within the one-year statute of limitation.

Appellant cites American Surety Co. v. Ed Smith & Sons, 100 Ga. App. 658 (112 SE2d 211) (1959), as dispositive of the issue. In American Surety, the plaintiff alleged in its complaint that the work had been accepted and the contract completed more than one year prior to the filing of the action, but insisted that the contract was not complete, for purposes of the statute of limitation, until final payment was made. In a succinct opinion, this court disagreed. In a concurring opinion, Judge Townsend noted that the statute “does not itself state whether the words ‘completion of the contract’ refer to completion by the contractor, or completion by both the contractor and the State or political subdivision.” Id. at 660. The same statute of limitation is at issue in the case at bar, but, unlike the American Surety court, we have before us the benefit of evidence as to when a contract is complete. Since the DOT, a party to the contracts, determines the contract complete after its Contracts Administration Department executes a “Final Statement Check Sheet” and a “Standard Final Release” and since suit was filed before one year from the date of the execution of those documents had elapsed, the statute of limitation had not expired, and the trial court did not err in denying summary judgment to appellant.

In a supplemental brief, appellant brings to this court’s attention a recent decision of the United States Court of Appeals for the Eleventh Circuit, construing OCGA § 36-82-105. In Augusta Iron &c. Works v. U. S. Fidelity & Guaranty Co. (Case No. 85-8899, decided June 2, 1986), the federal appellate court held that a suit filed more than one year after work was completed and accepted by DOT was barred by the statute of limitation. In so doing, the court implicitly equated completion of the work with completion of the contract. As our discussion above reveals, the case before us contains evidence that completion of the work is not tantamount to completion of the contract. Thus, the federal decision, neither binding on this court nor factually indistinguishable from the case at bar, does not give us pause.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., Sognier and Pope, JJ., concur. Deen, P. J., Carley and Beasley, JJ., dissent.