The opinion of the court was delivered by: Wexler, District Judge.
Use-plaintiff B & B Welding, Inc. ("B & B") brings this action
under the Miller Act, 40 U.S.C. § 270b, against defendant
Reliance Insurance Company of New York ("Reliance"), the surety
on a payment bond on a contract entered into between the United
States and Danaco Contractors, Inc. ("DCI"), as general
contractor, for the construction of a chilled water facility at
Brookhaven National Laboratory ("BNL") in Brookhaven, New York
("the BNL Project"). B & B seeks to recover amounts owed it by
DCI for materials and labor furnished on the BNL Project as a
subcontractor for DCI. Presently before the Court is Reliance's
motion for summary judgment*fn1 on the ground that the action
is barred by the Miller Act's one-year statute of limitations.
See 40 U.S.C. § 270b(b). For the reasons below, the motion is
The complaint alleges that DCI and the United States entered
into their contract sometime prior to June 28, 1987. In
addition, upon entering the contract with the United States,
DCI, as principal, and Reliance, as surety, delivered to the
United States a payment bond guaranteeing payment to suppliers
of material and labor in the prosecution of the BNL Project.
Thereafter, on or about June 28, 1987, B & B entered into a
contract with DCI to provide labor and materials for the
project. The work B & B agreed to complete included, inter
alia, the structural steel and metal roof and door decks. B & B
alleges that it completed performance under the contract but
that DCI still owes it $97,441.83.*fn2 Because DCI has failed
to pay the amount allegedly due under the contract, B & B seeks
to recover from Reliance as surety on the payment bond. B & B
also states that it has satisfied all conditions precedent to
bringing this action.
The complaint alleges that the date on which B & B last
supplied labor or material was June 30, 1988. This action was
commenced on January 23, 1990, nearly nineteen months later.
Section 270b(b) of the Miller Act, however, provides:
Every suit instituted under this section shall be
brought in the name of the United States for the use
of the person suing, in the United States District
Court for any district in which the contract was to
be performed and executed . . ., but no such suit
shall be commenced after the expiration of one year
after the day on which the last of the labor was
performed or material was supplied by [such
person]. . . .
40 U.S.C. § 270b(b). It is apparent that based on the
allegations in the complaint, this action is not timely. Faced
with a statute of limitations defense, B & B argues that
statements and representations made by representatives of
Reliance to B & B's attorney, Lawrence Fechner ("Fechner"), on
June 23 and 30, 1989, and thereafter, caused B & B to delay
commencing this action. Hence, B & B argues that Reliance should
be estopped from asserting
the Miller Act's statute of limitations as a defense.
In support of its estoppel argument, B & B contends that on
June 23, 1989, Fechner spoke to George Brotherston
("Brotherston"), who was hired as a consultant by Reliance, in
an attempt to resolve B & B's claim against DCI. By affidavit,
Fechner states that Brotherston had set up a meeting at the BNL
job site for June 28, 1989 between Reliance and representatives
of B & B, and had requested that someone from B & B with
signatory authority be present at the meeting "since checks
would be issued at that time in settlement of existing claims."
Affidavit of Lawrence Fechner dated March 28, 1990, para. 12.
However, at the June 28 meeting no checks were issued in
settlement of the claim. Fechner was told the next day, June 29,
1989, that B & B had not been paid at the June 28 meeting. Id.
On June 30, 1989, Fechner spoke to Rick Levesque ("Levesque"),
an attorney in Reliance's bond claim department, who suggested
to Fechner that he file a formal claim against the bond on
behalf of B & B. Id. para. 16. Consequently, by letter dated
July 18, 1989, Fechner submitted B & B's formal claim to
Levesque. Id. ex. D. In response, by letter to Fechner dated
August 14, 1989, Levesque stated:
This will confirm receipt of your July 18, 1989
correspondence wherein you presented a claim in the
amount of $113,655.83 against the . . . [payment]
bond. To facilitate our investigation of your claim
we request that you supply the following:
1. Copy of the subcontract and/or purchase order.
2. Invoices and delivery receipts.