United States District Court, W.D. Washington, Tacoma
UNITED STATES OF AMERICA for the use of NORTH COAST ELECTRIC COMPANY, a Washington corporation, Plaintiff,
R.E.P. ELECTRIC, INC., a Washington corporation, TUNISTA CONSTRUCTION, LLC, an Alaska limited liability company, LIBERTY MUTUAL INSURANCE COMPANY, a foreign corporation, WESTERN SURETY COMPANY and Electrical Contractor's Bond No. 939460009, Defendants.,
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY
J. BRYAN United States District Judge.
matter comes before the Court on Plaintiff United States of
America for the use of North Coast Electric Company's
(“North Coast”) Motion for Summary Judgment
regarding Ft. Lewis Payment Bond Claim against Defendants
Tunista Construction, LLC (“Tunista”) and Liberty
Mutual Insurance Company (“Liberty Mutual”) (Dkt.
58) and Defendants' opposition to the motion, or in the
alternative, motion to continue the motion for summary
judgment under Fed.R.Civ.P. 56(d) (Dkt. 66). The Court has
considered the pleadings filed in support of and in
opposition to the motions and the file herein.
2, 2016, the Plaintiff filed this case against Defendants
Tunista and Liberty Mutual and others for the non-payment of
materials supplied for various construction projects on Joint
Base Lewis McChord (“JBLM”). Dkt. 1. Claims
against Defendants S.M. Wilson & Co. and Federal
Insurance Company have been dismissed (Dkt. 45) as have the
claims against Defendants Coburn Contractors, LLC and
Hartford Fire Insurance Company (Dkt. 52). The caption has
been amended to exclude these parties; all future pleadings
from the parties should reflect the same.
October 19, 2016, a default declaratory judgment, in
Plaintiff's favor, was entered against Defendant R.E.P.
Electric, Inc. (“R.E.P.”). Dkt. 54. Defendant
R.E.P. is in receivership. Dkt. 50. Although Defendant R.E.P.
did not answer or otherwise respond to Plaintiff's
complaint, it answered the cross claims asserted by Defendant
Tunista and asserted counterclaims against Defendant Tunista.
pending is Plaintiff's motion for summary judgment
against Defendants Tunista, the general contractor, and
Liberty Mutual, Tunista's insurance company, for a
principal balance of $9, 910.98 for materials supplied and
for interest, costs and attorneys' fees. Dkt. 58. For the
reasons provided, the motion for summary judgment (Dkt. 58)
should be renoted to May 5, 2017.
17, 2013, Tunista entered into a contract with the United
States Army Corps of Engineers (“Army”) for the
construction of a dining facility at JBLM
(“project”). Dkt. 30, at 5. Tunista, as
principal, and Liberty Mutual, as surety, provided Payment
Bond No. 023023242 in the amount of $9, 432, 860.00 to the
United States. Dkt. 58-2, at 3-4.
September 12, 2013, Tunista subcontracted with R.E.P. to
provide certain labor and electrical materials for the
project. Dkts. 57, at 3; 66-1, at 1; 66-2, at 4-46. R.E.P.,
as principal, and Western Surety Company, as surety, entered
in to performance and payment bonds, in favor of Tunista.
Dkt. 66-2, at 47-50.
to North Coast, as evidenced by North Coast's quote
(including its Standard Terms and Conditions) and
R.E.P.'s purchase orders, North Coast agreed to supply,
and R.E.P. agreed to purchase, certain electrical materials
for the project. Dkt. 58-1, at 4-15. According to North
Coast's Standard Terms and Conditions, payment was due 30
after purchase, R.E.P. agreed to pay 18% per annum on past
due amounts, and parties agreed that if litigation is
brought, the prevailing party is entitled to reasonable
attorneys' fees and costs. Dkt. 58-1, at 15.
December 4, 2013, North Coast notified Tunista that it would
be furnishing R.E.P. materials for use on the project. Dkt.
58-1, at 16.
to North Coast's credit manager, between February 17,
2015 and July 1, 2015, North Coast provided R.E.P. project
materials, which were delivered to the project site. Dkt.
58-1, at 3. The last delivery of materials was on July 1,
2015. Dkt. 58-1, at 3. The unpaid principal balance was $9,
910.98. Dkt. 58-1, at 3; and 17-28 (copies of the invoices).
Despite demands for payment, R.E.P. did not pay North Coast.
Dkt. 58-1, at 3.
September 24, 2015, North Coast notified Tunista that, under
40 U.S.C. § 3133, it has “a claim for electrical
materials in the amount of $9, 910.98, plus accruing interest
at the rate of 18% from September 22, 2015, until paid,
against the payment bond posted by Tunista . . . for the
[JBLM dining facility project].” Dkt. 58-2, at 5.
Plaintiff further notified Tunista that North Coast provided
the materials to R.E.P. Id.
maintains that Western Surety (R.E.P.'s surety) should
pay any amount due to North Coast. Dkt. 66-2, at 2. Tunista
tendered North Coast's claims to Western Surety for
defense and indemnity, which it has not yet accepted because