In Re E.R. Fegert, Inc., Debtor. Dan O'rourke, Trustee v. Seaboard Surety Company Coral Construction Company, Inc. Shotwell Paving Company

Dan O’Rourke, as trustee for E.R. Fe-gert, Inc., appeals an affirmance by the Bankruptcy Appellate Panel of a summary judgment entered by the bankruptcy court in favor of defendants Coral Construction, Inc. and Shotwell Paving Company. O’Rourke sought avoidance of certain payments to the two companies as preferential payments. Seaboard Surety Company was joined as a third party and is an appellee in this appeal. The Bankruptcy Appellate Panel’s opinion is published at 88 B.R. 258 . We have jurisdiction pursuant to 28 U.S.C. § 158 , and we affirm.

I

In May of 1981, the United States Department of Transportation contracted with E.R. Fegert, Inc. to construct 4.6 miles of road in Oregon. Fegert subcontracted work on this project to Coral Construction, Inc. and Shotwell Paving Company. Coral and Shotwell completed their work, but Fe-gert defaulted on its payments. Coral and Shotwell each instituted suit against Fe-gert and Seaboard Surety Company. Seaboard, as surety, executed a payment and performance bond on behalf of Fegert, as principal, pursuant to the Miller Act. 40 U.S.C. §§ 270a-270d.

Prior to trial in 1983, Fegert paid Shot-well $30,900.70 and Coral $51,700.50. This,…