Barton Malow Co. v. Metro Manufacturing, Inc.

Pope, Chief Judge.

Defendants, a general contractor on a county construction project and its surety, appeal from the trial court’s grant of partial summary judgment for plaintiff, a company which supplied materials used in the project, on plaintiffs claim for recovery under a statutory payment bond. See OCGA § 13-10-1 (b) (2). Concluding that this case is controlled by Tom Barrow Co. v. St. Paul Fire &c. Ins. Co., 205 Ga. App. 10 (1) (421 SE2d 85) (1992), we affirm.

Defendant Barton Malow Company was hired by DeKalb County to complete the Scott Candler Filter Plant Expansion Project, and defendant Aetna Casualty & Surety Company was Barton Malow’s surety on the statutorily required payment bond. Barton Malow needed prefabricated carbon steel pipe and certain pipe accessories for the project and contracted with nonparty Progressive Fabricators, Inc. (“ProFab”) to provide them. ProFab in turn contracted with plaintiff to supply some of these items, which were ultimately delivered to the project site. ProFab then filed bankruptcy without satisfying its debt to plaintiff, and plaintiff brought suit against defendants for recovery under the payment bond.

Citing Clifford F. MacEvoy Co. v. United States, 322 U. S. 102 (64 SC 890, 88 LE 1163) (1944), defendants argue that plaintiff is too remote a supplier to recover under the bond. In Tom Barrow Co., however, we rejected the narrow definition of subcontractor reflected in MacEvoy, and further rejected the argument that we should limit the coverage of Georgia’s Little Miller Act in the same way the federal courts have limited the coverage of the Federal Miller Act. See 205 Ga. App. at 10-11; see also Sunderland v. Vertex Assoc., 199 Ga. App. 278 (1a) (404 SE2d 574) (1991). The general contractor in Tom Barrow Co. subcontracted part of its duties to North Georgia Equipment Company, which in turn subcontracted part of its job to Wor-sham Sheetmetal Company. Worsham procured materials from the plaintiff which were used in the project, and Worsham then went bankrupt without paying the plaintiff. Under these circumstances, we held the plaintiff was a person “supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in the contract,” OCGA § 13-10-1 (b) (2), and thus was covered by the bond.

*57In this case, the general contractor subcontracted part of its duties (the procurement of piping) to ProFab, which in turn purchased piping materials from plaintiff. Thus, the only difference between this case and Tom Barrow Co. is that plaintiff here is one step closer to the general contractor than the plaintiff in Tom Barrow Co.. Even if we assume that in Tom Barrow Co., Worsham Sheetmetal Company, despite its name, subcontracted with North Georgia Equipment to provide services and not simply to provide materials, this distinction between a supplier of services and a supplier of materials is a distinction without a difference. A general contractor assumes the full responsibility for completing a project, which requires equipment and materials as well as labor and other services. It then hires others to provide the things it needs, subcontracting out pieces of its responsibility under the prime contract. Some of those it subcontracts with will be providing primarily labor or services; others may be providing primarily material or equipment. But they are all subcontractors in the sense that the general contractor has delegated some of its responsibility under the prime contract to them, and there is no reason to give those subcontractors providing materials a lesser degree of protection than those providing labor or other services.

Accordingly, the trial court did not err in ruling that plaintiff was not too remote a supplier to recover under the bond and in granting partial summary judgment for plaintiff on this issue.1

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, JJ., and Senior Appellate Judge Harold R. Banke concur. Smith, J., dissents.

Defendants also argue in their briefs that plaintiff failed to comply with the notice requirements of the Little Miller Act. This issue is beyond the scope of the lower court’s grant of partial summary judgment, and we do not address it.