No. 85-175
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
ROBINTECH, INC.,
Plaintiff and Respondent,
WHITE & McNEII, EXCAVATING, INC. ,
and TRANSAM.ERICA INSURANCE CO.,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable Roy RodQhiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Landoe, Rrown, Planalp & Momrners; James M. Kommers,
Eozeman, Montana
For Respondent:
Sardine, Stephenson, Blewett & Weaver; ~ i l l i a mD.
Jacobsen, Great Falls, Montana
Submitted on briefs: Aug. 15, 1985
Decided: November 6, 1985
NO!/ 6 - 985
Filed :
.,
.
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendants, prime contractor and its surety on a public
works project, appeal summary judgment in favor of plaintiff,
a materialman and supplier to a subcontractor, entered in the
Fourteenth Judicial District, Musselshell County, on December
28, 1984. The District Court determined that as a matter of
law plaintiff was entitled to summary judgment in the amount
of $47,639, pl-us interest at 6 percent and costs.
We affirm. We hold that White & McNeil Excavating,
Inc., as the prime contractor, was bonded by Transamerica
Insurance Company to assure payment to its materialman,
Robintech, under the public works bonding provisions in Part
Two of Title 18, Chapter 2, MCA. We hold that White & McNeil
had adequate legal notice on Robintech's claim, and Robintech
was entitled to payment under the contract and under the
bonding statutes.
Both parties moved for summary judgment claiming that
the material facts were undisputed. For its first issue on
appeal, White & McNeil challenges the court's conclusion that
Robintech was a supplier or a materialman to a subcontractor,
alleging that Waterworks Supplies Company was a materialman
and not a subcontractor. Therefore, appellant urges this
Court, Robintech supplied a materialman and is not protected
by the bond. For its second issue, appellant alleges error
in the court's ruling that Robintech complied with
$ 18-2-206, I I A by
JC, mailing invoices but failing to send
notice by certified mail of any claim upon the bond.
The facts material to the summary judgment follow. On
June 9, 1982, the City of Roundup, Montana, entered into a
public works contract with White & McNeil Excavating, Inc.,
for the construction of water main improvements to be incor-
porated into the city water system. White & McNeil, prime
contractors on the project, executed a payment bond with
co-defend.ant Transamerica Insurance Company as surety.
The payment bond contained the following language:
NOW, THEREFORE, if the PRINCIPAL shall
romptly make payment - - persons,
to all
Firms, .& corporations furnishinq
-
materia.1~for or ~erforminalabor in the
prosecution of - - p;ovided
t