Sloan & Co. v. Liberty Mutual Ins. Co.
633 F. 3d 175 (3d Cir. 2011)

IOC developed a waterfront condominium project in Philadelphia. Shoemaker was the prime contractor for the Project. Shoemaker retained multiple contractors, including Sloan, who was to perform drywall and carpentry work. Liberty Mutual was Shoemaker’s payment bond surety. At completion, IOC refused to pay Shoemaker nearly $6.5 million. Of that amount, $5 million was due to subcontractors. IOC claimed, among other things, that some of the subcontractors’ work was untimely and deficient. Because of this, Shoemaker refused to pay Sloan of the remaining balance due under its subcontract, $1,074,260.

Continue Reading Third Circuit, Reversing District Court, Holds Subcontract Payment Clause Shifted Risk of Nonpayment by Owner to Subcontractor

Hartford Fire Insurance Co. v. City of Mont Belvieu
2010 U.S. App. Lexis 14277 (5th Cir. July 13, 2010)

The Court of Appeals for the Fifth Circuit recently held that a Texas City’s bond claim was time barred under the statute of limitations and equitable remedies based on estoppel were unavailable to revive claims on the bond.

Hartford Fire Insurance Company issued a performance bond for a contractor constructing a public recreational facility for the City of Mont Belvieu, Texas. The bond was a requirement under Texas public work contracts. By statute, the bond was subject to a one-year limitations period commencing from project final completion. The project progressed with numerous delays and changes. However, the City issued a certificate of occupancy in mid-2001, taking possession and operating the facility by July 2002.

At that time, numerous punch list items remained and several subcontractors owed payment by contractor filed claims on a payment bond. Hartford advised the City to be cautious when releasing further payment to contractor. Thereafter, in July 2002, City paid contractor almost $675,000 as an equitable adjustment via a change order. Critically, the change order stated that the project’s completion date was July 19, 2001.

Continue Reading U.S. Court of Appeals for the Fifth Circuit Holds Performance Bond Claim Time Barred – Estoppel Excuse Not Available to City

Raito, Inc. v. Cardi Corp.
2010 R.I. Super. LEXIS 108 (RI Super. Ct. July 14, 2010)

The Superior Court of Rhode Island was recently asked to reconsider its earlier ruling in which it found that a condition precedent to recovery under a performance bond was not satisfied and, therefore, summary judgment in favor of the surety was warranted. The Court found no reason to disturb its prior ruling and denied the motion for reconsideration.

Continue Reading Rhode Island Court Holds Notice of Default and Termination Prior to Completion a Condition to Claim on Subcontractor Performance Bond

Raito, Inc. v. Cardi Corp.
2010 R.I. Super LEXIS 61 (R.I. Super. April 10, 2010)

Cardi contracted with the State of Rhode Island for the construction of a new bridge over the Providence River on Interstate I-95. Cardi subcontracted with Raito to install a series of concrete foundation shafts for the bridge. With regard to the subcontract, Raito, as principal, and Western Surety Company, as surety, executed a standard AIA A312 performance bond.

Continue Reading Rhode Island Court Holds Incorporated Subcontract Terms Regarding Termination Did Not Vitiate Obligation of Notice to Surety Under AIA A312 Performance Bond

James J. Gory Mechanical Contracting Inc. v. Travelers Casualty & Surety Co.
2010 Phila. Ct. Com. Pl. Lexis 20 (Phila. CCP Feb. 8, 2010)

In February 2005, Surety issued payment bond of over $45 million on behalf of the general contractor for construction of student housing project at Temple University. Under terms of the payment bond, any claim, suit or action had to be brought within two years of bond’s issuance. General contractor entered into plumbing subcontract with Plaintiff, who certified that its work was 100% complete in October 2006. However, general contractor only paid Subcontractor for 95% of the work it completed.

Continue Reading Pennsylvania Common Pleas Court Upholds Payment Bond Contractual Limitation Period

North Amer Spec Ins. Co. v. Ames Corp./Dawson Building Contractors, Inc. JV
2010 U.S. Dist. LEXIS 25748 (S.D. Fla. Mar. 10, 2010)

Defendant Ames Corporation/Dawson Building Contractors, Inc. (Ames/Dawson), as general contractor, engaged American Roofing, LLC (American Roofing) to perform roofing work at the Veterans Administration Medical Center located in West Palm Beach, Florida. Plaintiff North American Specialty Insurance Company (NAS), as surety, issued performance bonds on behalf of American Roofing, naming Ames/Dawson, as obligee.

Continue Reading U.S. District Court in Florida Rules Performance Bond Claims Barred By Obligee’s Failure to Declare Default and Its Performance of Corrective Work Without Affording Surety Opportunity to Cure

Nova Crete, Inc. v. City of Elizabeth
2010 N.J. Super. Unpub. LEXIS 101 (N.J. Super. Ct. App. Div. Jan. 15, 2010)

The Court held that the consent of surety submitted by Nova Crete, Inc. (“Nova Crete”) did not comply with the bid specifications provided by the City of Elizabeth because its issuance was conditioned on an event other than the award of the contract to Nova Crete, and it therefore did not comply with the applicable New Jersey statute. Furthermore, this defect was material and could not be waived or cured. As a result, Elizabeth properly determined that Nova Crete was not the lowest responsible bidder on the project.
Continue Reading New Jersey Appellate Division Rules Conditional Character of Surety’s Commitment to Provide Performance Bond Made Contractor’s Bid Nonresponsive

American Manufacturers Mutual Insurance Co. v. Payton Lane Nursing Home, Inc.
2010 U.S. Dist. LEXIS 8537 (E.D.N.Y. Feb. 2, 2010)

The United States District Court for the Eastern District of New York (“EDNY”) recently considered whether a surety could maintain a breach of contract claim against a construction project owner’s architect based upon the architect’s alleged wrongful certification of payments occurring prior to the execution of a takeover agreement. In rendering its opinion, the EDNY concluded that expert opinions were not required where the claim sounded in contract, rather than in tort. The EDNY also found that summary judgment was defeated because there remained genuine issues of material fact as to the extent of the architect’s scope of construction phase services and whether the architect failed to satisfy its construction phase service obligations.
Continue Reading U.S. District in New York Denies Architect’s Motion for Summary Judgment Seeking Dismissal of Claim By Surety of Defaulted Contractor for Damages Due to Architect’s Alleged Improper Certification of Contractor’s Payment Applications

A.A. Bellucci Constr. Co. v. United States Surety Co.
2010 U.S. Dist. LEXIS 8369 (M.D. Pa., Feb. 2, 2010)

CSI Engineering, DC, P.C. (“CSI”) entered into a contract with a division of the U.S. Department of Labor to act as the general contractor for one of its construction projects. In turn, CSI subcontracted a portion of the work to A.A. Bellucci (“Bellucci”). The contract between CSI and Bellucci required mediation and arbitration to resolve disputes between them. To secure payment to all of its subcontractors, including Bellucci, CSI furnished Miller Act payment bonds from United States Surety Company (“Surety”) and U.S. Specialty Insurance Company (“Speciality”).
Continue Reading U.S. District Court in Pennsylvania Stays Miller Act Suit Against Sureties Pending Arbitration Where Sureties Stipulate to Be Bound By Decision in Arbitration Between Contractor and Subcontractor

Hunt Construction Group, Inc. v. National Wrecking Corporation
587 F.3d 1119; 2009 U.S. App. LEXIS 25909 (2009)

Plaintiff, Hunt Construction Group (“Hunt”), commenced an action against one of its subcontractors, National Wrecking Corporation (“National”) and against two sureties (the “Sureties”) on National’s performance bond. The Sureties argued that Hunt failed to give timely notice of default depriving the Sureties of a realistic opportunity to exercise their rights under the bond to cure National’s defective performance.
Continue Reading DC Court of Appeals Holds Contractor’s Failure to Declare Subcontractor in Default and Provide Subcontractor’s Surety with Notice Before Taking Over Completion of Subcontractor’s Work Released Surety from Liability