261 A.2d 853 | R.I. | 1970
This is a civil action predicated on a Labor and Material Payment Bond. It was heard by a Superior Court justice on the plaintiff’s motion for summary judgment and the defendant Aetna Insurance Company’s cross motion. From a final judgment accordingly entered, the plaintiff seasonably appealed to this court.
The pleadings establish that plaintiff, as subcontractor under a written agreement with Lincoln & Lane Co. as principal contractor, furnished air conditioning equipment to
In its complaint, plaintiff, alleging that it was a claimant as defined by the terms of the Labor and Material Payment Bond on which Aetna was surety, further alleged that it was entitled to be paid by Aetna by reason of paragraph 2 of said bond, which paragraph provides:
“2. The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s ■work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit.”
Aetna, answering, set up as a defense, in essence, that plaintiff was not a claimant within the meaning of the bond
However, in its complaint, plaintiff alleges that it gave all written notices required to be given pursuant to the terms and conditions of the bond, but did not allege that it had complied with the notice requirements of §37-12-2 and §37-12-10, as amended.
On this state of the pleadings, plaintiff, invoking Rule 56 of the Superior Court Rules of Civil Procedure, filed a motion for summary judgment on the issue of Aetna’s liability on the bond described in plaintiff’s complaint.
Aetna filed a cross motion for summary judgment on the ground that, as a matter of law, defendant did not undertake to pay plaintiff since plaintiff did not comply with §37-12-2.
Neither party filed supporting affidavits and the Superior
On an analysis of the cases on which plaintiff relied as well as those on which Aetna relied, and the statutes of the respective states vis-á-vis the provisions of the Rhode Island statutes, the Superior Court justice held that, by the enactment of §37-12-2 as made applicable to municipalities by §37-13-13, as amended, the General Assembly had mandated as public policy that, for plaintiff to recover on the Labor and Material Payment Bond given by Aetna, it was essential for plaintiff to have complied with the statutory provisions regarding notice.
Subsequently, both parties again moved for summary judgment, plaintiff stipulating that it had not complied with the statutory notice provisions. These motions were considered by the same justice and, the record now establishing no issue of fact to be litigated, said justice entered an order denying plaintiff’s motion and granting that of Aetna. Thereupon, plaintiff seasonably appealed.
Although the decision on which the Superior Court justice based the appealed order carefully and exhaustively sets forth the reasoning on which it is based, we deem unnecessary any discussion thereof, in light of what we consider to be a dispositive development. When plaintiff’s appeal was considered by this court, it was discovered that the contract
Clearly, if the contract expressly called for the giving of a bond conformable to the provisions of the applicable statutes, a decision of this court, based on the law as interpreted by the Superior Court justice, might well be tantamount to an advisory opinion, which, moreover, might conceivably be inapposite to the circumstances of the instant case. We therefore entered an order calling on the parties to supplement the record by the inclusion of the contract in question. See Worthington Air Conditioning Co. v. Lincoln & Lane Co., 106 R. I. 67, 255 A.2d 723.
After our order in the aforecited case had been filed, the absent documents were added to the record. An examination of the contract between the City of Cranston and Lincoln & Lane Co. discloses the following provision:
“The Contractor hereby agrees to abide by and comply with the applicable terms and provisions of Chapter 3580 of the Public Laws of 1955. Without limiting the generality of the foregoing, the following sections of said Chapter 3580 are hereby inserted in this Contract in accordance with the provisions of Section 7 of said Chapter 3580.”
Said P. L. 1955, chapter 3580 is the precursor to chapter 13 of title 37 of G. L. 1956, and section 13 of both said chapters expressly requires the contractor, to whom a public works contract is given, to furnish a labor and material bond
Section 7, chapter 3580 of P. L. 1955, and its successor section 8, chapter 13 of title 37 of G. L. 1956, as amended, expressly provide that in every public works contract there shall be “inserted” (emphasis ours) certain provisions spelled out in sections 1 through 6 of chapter 3580 of P. L. 1955, and sections 5 and 6 of chapter 13, title 37 of G. L. 1956, as amended, respectively.
Admittedly, section 8, chapter 13 of title 37 of G. L. 1956, as amended, requires fewer provisions of said chapter to be inserted in public works contracts than were required by section 7, chapter 3580 of P. L. 1955, to which chapter reference is made in the contract between the City of Cranston and Lincoln & Lane Co. However, this difference regarding the provisions to be inserted is not material here. Suffice it to say that there are inserted in said contract the provisions required by P. L. 1955, chapter 3580, section 7; further evidence, in our judgment, that the contract in question was given to Lincoln & Lane Co. on the condition that it furnish a Labor and Material Payment Bond as required by section 13, chapter 3580 of P. L. 1955, now section 13, chapter 13 of title 37 of G. L. 1956, as amended, which, in turn, made said bond subject to chapter 12 of title 37.
After the contract had been added to the record as directed by us, plaintiff filed a supplemental brief. Our attention is directed therein to the fact that the legislature, by the enactment of section 8, chapter 13, title 37 of G. L. 1956, as amended, explicitly requires that certain provisions of said chapter 13 be inserted in every public works contract, and that bonds furnished in connection with the giving of such contracts contain the provisions of chapter 12, title 37
If a situation be assumed whereby Aetna was defending on the proposition that it was not liable for the reason that by not referring to chapter 12, title 37 of G. L. 1956, it was not bound by the provisions of that statute, this court would have little hesitancy in rejecting such a proposition. The bond on which it is surety expressly provides for incorporation by reference of the conditions set forth in the contract to which the bond relates. As heretofore noted, a condition in the contract given to Lincoln & Lane Co. was that the contractor would furnish a bond conformable to statutory requirements. Hence, if Aetna could not successfully escape obligations imposed by the statute, it should not be held to lose whatever benefits inure to it by reason thereof.
We hold, therefore, that the benefits of the Labor and Material Payment Bond, on which plaintiff predicates its claim, could be invoked by it only if there were compliance with the notice requirements of §37-12-2. Not having so-complied, the plaintiff’s motion for summary judgment was properly denied and that of Aetna granted.
The plaintiff’s appeal is denied and dismissed, and the judgment appealed from is affirmed.
APPENDIX
37-12-2. Persons Entitled To Benefit Of Bond — Statement Of Claims — Time Of Filing. — Every person that shall have performed such labor and every person that shall have
37-12-10. Notices.' — Whenever notices are required to be filed under the provisions of this chapter the creditor in the case of a contract with the state shall file such notices within the time prescribed in §37-12-2 with the particular department or other political subdivision that entered into the original contract and in the case of a city such notices shall be filed with the city treasurer and in the case of a town with the town treasurer regardless of the department or political subdivision of the city or town that entered into the original contract.
An examination of plaintiff’s complaint discloses that there is no allegation of non-payment, but no issue is made of this by defendant Aetna, and for the purposes of the instant appeal, we take it as established that plaintiff was never paid. Further, Lincoln & Lane Co., principal on the bond in issue, was adjudicated a bankrupt prior to the commencement of the instant action, and the trustee in bankruptcy entered his appearance in the instant action seeking, and apparently obtaining, a stay of these proceedings as against his bankrupt, although the record before us does not indicate that the trustee’s plea of bankruptcy was ever considered in the Superior Court. In any event, the case was adjudicated without regard to Lincoln & Lane Co. as a named defendant.
This amendment became effective May 7, 1965, and the contract between the City of Cranston and Lincoln & Lane Co. was entered into on or about October 8, 1965. Said amendment provides:
“The state or any city, town, agency or committee therein awarding such contracts for public works shall require the contractor awarded a contract with a contract price in excess of one thousand dollars .(Í¡1 OOOl for .public works to file with the proper authority good and sufficient bond with surety furnished by any surety company authorized’ to do business in the state, conditioned upon the faithful performance of the contract and upon the payment for labor performed and material furnished in connection therewith, such bond to contain the terms and conditions set forth in chapter 12 of this title, and to be subject to the provisions of that chapter.”
Our order also called for the inclusion in the record of a Performance Bond referred to in the Labor and Material Payment Bond as having been given simultaneously with the latter. However, said Performance Bond is found to be without materiality.
General laws 1956, Title 37, c. 12 et seq. was formerly chapter 79 of G. L. 1938, as amended, and it is to this latter cited chapter that P. L. 1955 chapter 3580, section 13 refers. However, section 13. chapter 13 of G. L. 1956, as amended, refers to chapter 12 of title 37 of G. L. 1956, as amended.