United States ex rel. North Star Terminal & Stevedore Co. v. Nugget Construction, Inc.

MEMORANDUM *

Nugget Construction, Inc., and its Miller Act surety, (NCI), appeal the district court’s grant of summary judgment in favor of claimants against NCI’s Miller Act bond. We review the district court’s judgment de novo 1 and reverse.

In United States v. Aetna Casualty & Surety Co. (Conveyor Rental), 2 we reviewed the factors supporting a finding of subcontractor status. 3 Of the thirteen listed factors, most of the factors clearly do not support such a finding as to Spencer Rock Products (SRP). Although SRP supplied almost all the rock and its contract with NCI represented over 40% of NCI’s total contract cost, these factors simply do not counterbalance the others. Most notably, SRP was not involved in any other portion of NCI’s overall contract and the product supplied was in no way unique or complex—it was clearly merely material.

Of the factors listed in Conveyor Rental tending to support the status of a material-man, 4 only two facts weigh against finding such a status here. The material did not come from pre-existing inventory and the contract between SRP and NCI represented a substantial portion of NCI’s total contract cost. Nonetheless, these facts are not…