*1 givеn court should be the first opportunity ASSOCIATION, Accordingly, petition to rule on it. ELECTRIC KODIAK INC., rehearing is denied. and American Motorists Company, Appellants, Insurance IT IS SO ORDERED. v. by court,1 Entered direction of the TURBINE, INC.,
DELAVAL Western Anchorage, Alaska, day this 21th of Febru- Portec, Electric ary, 1985. Inc., Appellees. TURBINE, INC., DELAVAL
Cross-Appellant, ASSOCIATION, KODIAK ELECTRIC INC., and American Motorists Company, Cross-Appellees. Insurance 7871, Nos. 7896. JONES, Frank V. d/b/а Supreme Court of Alaska. Construction, Appellant, Feb. MEMORANDUM AND ORDER SHORT, Appellee. John Westinghouse petitions rehearing, contending opinion our No. S-220. mate- a material and a overlooked Supreme Court of Alaska. According West- proposition of law.
rial have inghouse, opinion should “[t]he March warranty/limitation of effect to the contract, Westinghousе provision of the action West-
stated that bars provi- the contract inghouse in accord with sions.” brief, Westinghouse’s argument its response
awas to Kodiak Electric’s third party benеficiary theory. Westinghouse
argued: right of KEA as a third
party beneficiary subject limita- implied by the terms of the [West-
inghouse/DeLaval] contract.” Its brief did Westinghouse’s
not make clear present contention that negli- Kodiak Electric’s
gence contrаct, action by was barred not Kodiak Electric was a
third beneficiary. The trial ques- court did not rule on this tion; ruling appears its to have been based
entirely upon its erroneous belief that the
action was barred AS the two yеar Westinghouse statute of limitations.
can raise the issue on remand and the trial
1. MATTHEWS and MOORE, JJ., not participat- ing. *2 Wadsworth, Walther, Brent M.
Byron D. Wadsworth, An- Brent M. Law Offices of chorage, appellant. Johnson, Turner, Betty L. A.
Terrance Turner, P.C., Anchorage, ap- & Owens pellee. RABINOWITZ, C.J.,
Before MATTHEWS, BURKE, COMPTON MOORE, JJ.
OPINION
COMPTON,Justice. judg- summary appeal This is an from in a construction ment for a landowner compensation, action to collect contractor’s failure to general based statutory registration comply strictly with that substantial requirements. We hold comрliance with bar, and therefore reverse. AND PROCEDURAL
I. FACTUAL
BACKGROUND (Jones) gener- has been Frank Y. Jones He has since 1949. contractor Alaska al names, most under several done business the name Jonеs Construc- recently under July tion, registered in initially to his insurance Jones submitted neces- paperwork and fees company all the general contractor’s cer- renew his sary tо the certificate and Jones believed tificate However, Jones’ properly renewed. failed to company apparently renewal submit Eco- Department оf Commerce and Alaska leaving Development, Jones nomic between a valid July 1981 and July During lapse in Jones’ (Short) into entered Short Jones and John for the construction oral contract lots on several owned improvements performed the work Short. Jones $28,524.19. in the amount of Short billed Jones, claiming Jones pay Short refused performed promised, had not evidence of prop- sued payment. Short for erty damage insurance.4 Certificates of registration must be renewed on an annual
Short summary judgment, moved for basis.5 an incentive clаiming AS 08.18.151 bars an action for compensation by the collection of re- quirements acting by precluding legal of a contractor if the actions for *3 allege prove contractor does regis- compensation not unless the reg- contractor is tered status at time the the contract was istered at the time of contract formation.6 granted еntered. The trial court the mo- proper interpretation summary judgment.
tion for the registration provisions which carries is.one II. DISCUSSION legislative out the gives intent7 and mean ing parties every part raise two issues: of the statute8 without producing whether the contractors’ harsh and unrealistic results.9 ute, 08.18.011, may be satisfied sub- adopted We have the doctrine of second, sо, compliance;
stantial if compliance substantial purp to serve these substantially complied regis- with the bonded, When a reg insured and tration statute. oses.10 istered contractor does business under an A. Substantial in Law. unregistered name, later action on the con tract is not notwithstanding AS 08. AS 08.18.011 makes unlawful for a 18.151. Alaska Protection Services v. contractor to work or submit a bid unless Colorcable, Frontier (Alas 680 P.2d registra- the contractor has a 1119 certificate of 1984). However, ka tion from the State.1 The a contractor who is obtaining registеred, a certificate of not are insured or bonded is denied fee,2 paying bond,3 a access to the courts under the same sec- provides 1. AS 08.18.011 that 8. Id. § 46.06. person It is unlawful for a to submit a bid or work as a contractor until Lighting has Corp. In Industrial Power & v. West- registration by been issued a certificate of the ern Modular 294 Department of 1981), Commerce and Economic De- give this court declined to velopment. partnership joint A venture expansive reading, since it causes forfeiture registered shall be considered if one of the of an otherwise valid claim. general partners or venturers whose name appears partner- in the name under which the general, compliance In substantial involves ship registered. or venture does business is compliance conduct which falls short of strict statutory registration requirements, with the but 2. AS 08.18.041. protection which affords the the same 3. AS 08.18.071. compliance that strict would оffer. In Alaska Protection Services v. Frontier Color- 4. AS 08.18.101. cable, (Alaska 1984) (foot- omitted), notes and citations we said: 5. AS 08.18.031. imposes penalty Section 151 a harsh on con- provides 6. AS 08.18.151 tractors and thus has not been a broad person acting A of a contractor or liberal construction.... cited [W]e [have] bring an action in a court of this approval interpreting California cases compensation state for the collection of provision require similar to AS 08.18.151 to performance the of work or for breach of a compliance” "substantial rather than strict required contract for is registration provisions chapter alleging prov- under this goal the statute. The is to determine whether registered that thе contractor was a con- sufficiently the contractor has “afforded the contracting per- tractor at the time of for the party protection the effectivе of the stat- formance of the work. Only protection ute.” ... when such has not operate to bar Sands, been afforded will section 151 Statutory 7. 2A C. Statutes and Construc- . the contractor access to the courts. (4th 46.07 ed. § Timber, 680 P.2d 56(c) tion. Smith Alaska R.Civ.P. that sum- (Alaska 1984). mary judgment be if “there shall rendered genuine any is no issue as to fact material We conclude that entitled and ... to a by a be of AS 08.18.151 bar a matter of law.” substantial general contractor’s If the landowner AS 08.18.011. evi The record does contain lead ready information that would access to concerning continuing availabili dence contrac discovery identity public during ty of information to insurer, contractor apparent and the tor’s registration, nor it contain lapsе in does insured, legislative intent is fact is in sufficient evidence to determine whether effectuated. reg coverage lapsed summary judgment of a context timely renewed. We istratiоn was not as indicat- *4 the record can be viewed motion superi- therefore remand this action to the reasonably believed ing that the contractor two or court a determination of these his made he renewed had issues. comply effort to good faith superior judgment court is The filed a requirements, and case RE- therefore REVERSED bond, public and that еvidence of proceedings on inconsistent damage were MANDED property insurance opinion. this record. Fact B. Substantial BURKE, Justice, dissenting. must now address the We I dissent. complied with substаntially
whether Jones statutes. the contractor The action is barred by mak- protects registration act undisputed it is because information “registered” made. contract was (the registration require- readily available registration requirement 08.18.- of AS ment) by providing a fund understood, easily (the bonding claims be made Likewise, statutorily simple matter. requirements). and insurance is un imposed penalty noncompliance ambiguous.” Tyo ex rel. State Smith issues: pertinent The record raises two Timber, Inc., 680 P.2d nek prior registration or whether Jones’ pub- public information afforded that current lic with the same information these I see no reason not enforce afford; second, whether registration would Thus, I provisions in the case bar.1 during the effective remained superior affirm the would lapsed. If his period court. affirma- answered in the questions are both complied substanially tive, then Jones his of action cause 08.18.151. notwithstanding AS proceed Timber, Inc.,
1. In State
ex rel. Smith
den of
under AS 08.18.011-171 is
(Alaska 1984)
solely
we held that an
responsibility
of the unlicensed con-
unlicensed contractor’s action was
tractor.
ing:
(citаtion omitted). Here,