United States of America for the Use of Ray Weist Construction Company v. St. Paul Fire & Marine Insurance Company

This appeal is from a summary judgment adverse to Ray Weist Construction Company (Weist), a subcontractor, which brought an action against a surety under the Miller Act, 40 U.S.C. §§ 270a, 270b. The district court held that it lacked jurisdiction because Weist had failed to satisfy the notice of claim requirement of § 270b. We affirm.

O’Leary Construction, Inc. (O’Leary), subcontracted with Weist for Weist to crush rock for a United States Forest Service road and thereafter to haul and place the crushed material on the roadbed.

The material facts are undisputed. Weist fully performed the rock-crushing on December 1, 1971. Road building operations were closed down for the winter. On July 1, 1972, O’Leary asked Weist to haul and place the crushed material. Weist defaulted on this portion of its subcontract. O'Leary did the hauling and placing. On March 21, 1972, O'Leary not having paid for the rock-crushing, Weist gave the surety and O’Leary notice of claim therefor.

The district court held that the notice of claim was served more than 90 days after the last work Weist had performed and so the court had no jurisdiction under the Miller Act. Weist contends that the…