Southway Crane and Rigging Inc. v. Federal Ins. Co.

Factual questions remained as to whether OCGA § 36-91-93 a 1 or OCGA § 36-91-93 a 2 applied in the sub-subcontractor's suit on a public works payment bond.

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Southway Crane and Rigging, Inc. appeals from the grant of summary judgment to Federal Insurance Company in this action on a public works payment bond. The trial court held that Southway’s claim was barred because it failed to comply with the notice requirements of OCGA § 36-91-93 a 2. Because material issues of fact remain for a jury’s consideration, as detailed below, we reverse. The Evergreen Corporation was the general contractor and Federal was its surety on a public works contract for the construction of a school in placePlaceNameGwinnettPlaceTypeCountyEvergreen engaged Dura Art Stone to perform work on the project, and Dura in its turn engaged Southway as a sub-subcontractor. Dura, however, filed for federal bankruptcy protection on June 21, 2005 without paying Southway.

This action began when Southway filed a simple “Complaint on Account” against Dura and Federal on June 27, 2005. Federal answered and interposed the defense that Southway had failed to comply with the provisions of the Georgia Code governing claims against a surety on a public works project. Southway then filed a motion for summary judgment, apparently still maintaining that it was pursuing a simple action on account. Federal opposed the motion, again asserting failure to comply with the notice provisions under OCGA § 36-91-93. Southway then withdrew its motion for summary judgment on March 15, 2006. Federal then filed a motion for summary judgment, asserting that Southway had failed to comply with the provisions of the Code section. Southway responded, providing several affidavits from its sales manager and copies of October 29, 2004 letters which it asserted fulfilled the requirements of OCGA § 36-91-93 a 1.

Southway Crane and Rigging Inc. v. Federal Ins. Co.

Factual questions remained as to whether OCGA § 36-91-93 a 1 or OCGA § 36-91-93 a 2 applied in the sub-subcontractor's suit on a public works payment bond.

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