United States of America, for the Use and Benefit of Balzer Pacific Equipment Company v. Fidelity and Deposit Company of Maryland

Fidelity and Deposit Company of Maryland (F & D) appeals from a jury verdict of $66,082.54 in favor of Balzer Pacific Equipment Company (Balzer). F & D asserts that the trial court erred in denying its motion for a directed verdict, as well as in denying its motion for judgment n.o.v., and, alternatively, for a new trial. We reverse and remand for a new trial.

I.

JURISDICTION

Jurisdiction in the district court resides in 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291 .

II.

FACTS AND PROCEEDINGS BELOW

Balzer brought this action under the Miller Act, 40 U.S.C. §§ 270a-270d, against F & D on payment bonds issued by F & D in respect to four contracts between S & S Contracting, Inc. (S & S) and the United States to be performed principally in Guam. These contracts were for construction of (1) an airport, (2) a highway, (3) a park memorial, and (4) work for the Navy in Midway. Balzer furnished material to S & S to be used both in connection with these contracts and for several contracts S & S had with parties other than instrumentalities of the United States. S & S became insolvent and was unable to meet its obligations owed to Balzer. This action ensued.

To…

dissenting in part:

This case presents three related legal issues stemming from a single set of facts. Balzer supplied to a contractor, S & S, certain items that Balzer reasonably believed would be used during the course of four U.S. Government construction projects. Defendant Fidelity had bonded the projects under four separate Miller Act bonds.

The first issue concerns the determination of general Miller Act liability when items are supplied to more than one bonded project. The district court held that the projects could be lumped together, so that if Balzer reasonably believed that its supplies would be used on any one of the projects, Fidelity would be liable. The majority, quite correctly, concludes that this was wrong; liability is determined on a contract-by-contract basis.

The second issue involves the statute of limitations. Here again, the majority rejects the district court’s single-pie theory, holding that each bonded contract is a separate event for purposes of triggering the statute. I fully agree with this portion of the majority opinion as well.

Oddly, the majority adopts the converse theory in resolving the third question: whether supplies are material or…

895 F.2d 546 36 Cont.Cas.Fed. (CCH) 75,792 UNITED STATES of America, for the Use and Benefit of BALZER PACIFIC EQUIPMENT COMPANY, Plaintiff-Appellee, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant-Appellant. No. 88-15464. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 31, 1989. Decided Jan. 31, 1990. James H. Lawhn and Charles J. Keever, Oliver, Lee, Lawhn, Ogawa and Lau, Honolulu, Hawaii, for defendant-appellant. W. Thomas Fagan and Patricia K. Wall, Reinwald, O'Connor and Marrack, Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before SNEED, KOZINSKI and THOMPSON, Circuit Judges. SNEED, Circuit Judge: 1 Fidelity and Deposit Company of Maryland (F & D) appeals from a jury verdict of $66,082.54 in favor of Balzer Pacific Equipment Company (Balzer). F & D asserts that the trial court erred in denying its motion for a directed verdict, as well as in denying its motion for judgment n.o.v., and, alternatively, for a new trial. We reverse and remand for a new trial. I. JURISDICTION 2 Jurisdiction in the district court resides in 28 U.S.C. Sec. 1331 and we have jurisdiction under…