# Petition for Writ of Certiorari — Hartford Accident & Indemnity Co. v. Continental Casualty Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1532%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 385 U.S. 825 ## Text + J Office supreme Cour, RARE 00> “SIRES ” > COURTS: Uy Se } RO ny OG - 1 JUN TO 196¢ INTHE | JOHN F. DAVIS, oe ‘Supreme Court of the United sie & | | October Term, 1 ee: S ; : No. Be “, Sd Hartrorp ACCIDENT AND INDEMNITY Company, and C. O. BRAND INC., Petitioners, | VS. | a CONTINENTAL CASUALTY COMPANY, _ | Respondent. _ PETITION FOR WRIT OF CERTIORARI. Davin ARTHUR BINDER, _ 3810 Wilshire Boulevard, Los Angeles, Calif. 90005, | \ ; Attorney for Petitioners. +.” Of Counsel, iy , Brown & Brown, Howarp B. Brown, * Ropney Moss, Rosert V. BLADE. . : ; _ \ . Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171... ae Net a lati Ng Bs a ea aye + aay rigs '. out of Capehart: constructions | sada IN DEX TO APPEN DICES , Appendix “4°, Opini of ‘the United States Court of Appeals od e Fifth Circuit,+: tneacnnsesnealenee : ‘Apperidix vars, * Provisions of the. Millet, ae. ‘United States Code, Fitle-$0, Section 270a cote pe iat sr one SUBJECT INDEX eee 3 : ; : yt Page, Opsing below? coaeeteesmetaioans ] - The: acts»and conduct of the Hayes Corporations, their of- ficers,; agents and employees, . . . were all part -of ‘a general, . plan, thot and scheme to: (1) ‘obtain the signatures of subcon- tractors to written contracts which were at a variance with prior oral agreements and understandings and to thereby require said subcontractors to agree, in writing, to-do work for less money than they expected to receive;'(2) dé work other and more than they ‘thought was being required of them; (3) to obtain Performance Bonds and Payment Bonds for. the benefit of the Hayes Corporations, well-knowing’.that the subcontractors, as . principals, would not be able to pérforn? the .work ‘required of them for the compensation agfeed upon; (4) avoid payment of their obligations justly due by refusing to pay or by shifting the _ obligations-to pay to the sureties of the subcontractors; .(5) keep | and maintain the subcontrdetors:on the,construction projects by firther promises and ‘represefitations ; and (6) extract letters and docurnents from the subcontractors purporting to release and . exculpate Hayes and the Hayes Corporations and organizations from and of any liability, responsibility, ¢laim and demand.” ‘ . .* ~- « “- point, because we agree with Continental’s contention that the claimants failed to give the dual notice required as a prerequisite to suit'on a Capehart Act bond. a — | We discuss, first, the question. whether the single - notice provision of the Miller Act, 40 USC §270b(a), rather than the express dual notice provision of the Capehart payment bond, controls a suit on the bond. ' A. Since 1894, the Heard Act and its successor, the ~ Miller Act, have required contractors of public works in _ the United States to provide bonds for the protection . of their suppliers.’ The Capehart Military Housing Act, as originally enacted in 1955, did not refer to the Miller Act nor did it specifically require that the eligible bidder provide a payment bond for protection of sup- pliers of labor and materials. Nevertheless, the Secre- __tary of Defense and the Commissioner of Housing re- . quired the bond during the first year-folldwing passage — of the Capehart Act.® 7The Heard Act, ch. 280,.28 “Stat. 278 (1894), provided for a single’ bond to protect both the syppliers and the United States. The United States had the exclusive right to sue on the -bond for the first six months after completion of the w This often resulted in extended delays to suppliers. The “Miller Act was intended to eliminate the difficulties by providing for both a performance bond and a payment bond, giving the sup- . pliers the right to sue on the payment ‘bond. See, MacEvoy v. ompkins Co. 1944, 322 U.S. 102, 104. ° SAfter enactment of the Capehart Act; the Commissioner of Housing promulgated comprehensive regulations (21 Federal ‘Register 319; 20 Federal Register 5969, 5970.), Sec. 292427’ of which, entitled “Completion Assurance”, required'a bond to be furnished satisfactory to the Commissioner and the Military. See Hart, The Purpose, Form and Problems of the Capehart Housing Pi 7 1961.A.B.A,. Section of Insurance, Negligence & Com- ‘pensation Law 231, 237&n. 22. a Se Y eS | To clarify the relationship of Miller Act bond.require ments to Capehart housing projects,? Congress amend- ed the Capehart Act, August 7, 1956, to provide: oi Any such contract shall provide for the furnishing by the contractor of a performance bond and a _ payment bond'with a surety or sureties satisfactory to the Secretary°of Defense, or his’ designee, and the furnishing of such bonds shall” be deemed a sufficient compliance with: the provisions of ' sec tion 270a of, Title 40 [The Miller Act], and no tion.” =~ This ae ee to the Capehart Act intensified thé am- biguous relationship betweén that act and the Millet Act. : eae §270a(a). The | penal amount of the Capehart. pa étit “bond is not — limited by statute and may be, one hundred per cent-of the contract price. ‘In this casé, Continéntal’s payment ‘bonds with Hayes for the Fort Bliss ‘project aggregated . the full contract price, $6,473,000. 3 “The interpretation placed: upon [the Cuipetiaee Act] ‘by the agencies charged with its enforcement is ‘entitled to great weight”. Continental C asualty Co. v. United States ex rel. Robertson Lumber Co:., 8 Cir. 1962, _ 305 F.2d 797, 799. The. interpretation administrators of _ Capehart projects place upon the Capehart Act, as ‘ amended, fortifies our conclusion here. The Secretary ee | sc. - 20See Comment, 111 U.Pa.L.Rev. 1014, 1017 (1963). e .& \rl6e— ‘of. Defense, - upon whose recommendation the 1956° amendment was enacted, obviously construed the en- _’. aetment of the amendment as approval of his view - _ that. Miller: Act: proyjsions . ware inapplicable to “the >. -.. FHA dual obligee bond form” used on Capehart proj- ° _ ects. The Federal Housing Administration, insurer.of » 9 the mortgaged: property which is the basis of the ifi- tricate ‘Capehdrt financing, agreed with, the Secretary.” And the United States, General Accounting office bea a expressed the opinion that: the Capehart bonds-are “in- : dependently established” ‘and that “the Miller Act is - not controlling as to, them.’’”?’ “While we think that Congress intended that Capehart suppliers should havé substantive bond protection essentially similar tg that , ae tp : afforded Miller Act supplier's, we think: also’ that Con: aoeeate \ gress intended that. the procedural. provisions of Cape- | NX. 1. hart bonds [for example, the notice provision] should a worked out and prescribed by the two agencies: [De- | aga partment of Defense and Federal- ‘Housing Administra- *. & pies risdictional pr vision, §270b(b). The principal'basis. for the’ decision here is’ that in establishing a unique finan- ~ gial arrangenient® over which ;the Secretary of Defense has broad control Congress grarited:implied authority to” the Secretary -to establish reasonable: notice provisions | - peculiarly siitable for.a Capehart project. Nothing in - the financing scheme implies a need for a jurisdictional provision different from that prescribed for suits by - suppliers of public works in the Miller Act. In addition, in Autrey the Court was unwilling to in- ‘fer from an unelear statute Congressional sanction for a , jurisdictional provision severely diluting the adequacy of . Suppliers’ ‘remedy by not. providing for extraterritorial - service of process as the Miller Act does. 343 F.2d at 735. By contrast, our refusal here not to apply the no- tice provisions of the Miller Act does not dilute the long- standing efforts of Congress to secure suppliers’ rights. Applying the dual notice requirement does not seem un- fair to the plaintiffs in this case. We are. persuaded, in part, as was Judge Blackmun, “by the completely un- explained failure of [these] plaintifffs] to avoid [the] , “difficulty in the first instance by. taking the small trouble to give the dual notice so clearly required by the bond.”: Robertson, supra, 305 F.2d at 800. In:the | abesnce of a decision on point in.this circuit, Hartford and Brand could’ not disregard the express notice pro- vision of the bond on which they sue. and could not * _ justifiably rely upon. a statutory ambiguity and con- - flicting decisions in other circuits to ae a less strin- gent notice requirement. .. F..The result we reach in this. case is ; Similar to the - | result reached by apparently every court that has con-. | _ Autrey v. Williams and Dunlap, 346 F. 2d 1007, (C.C.A. 5, 1965) ; ) Anthony P. Miller, Inc. v. United States, 348} F. 2d 475 (C.C.A. 5, 1965); oe. ae Triangle Electric Supply Co. v. hijab Electric fi: ’ Co., 238 F. Supp. 815 (D.C. Mo. 1965); | | Winston v. United States, 342 F. 2d 750 (CCA. a sen od S's. -Silberblatt, Inc. v. "United States, 333 F. 2d 545 (C.C.A/5, 1965); a iis - | LL’ & E Company v. United States, 351 F 2d 3 3 ‘880 (C.C.A. 9, 1965); -Gersten Construction Co. v: United States, 346 F. 2d 973 (Ct.Cl. 1965) ; he | 55 ” Russell v. Travelers Indemnity Company, 244 F. > * . Supp. 419 (D.C. Mo.“1965); Seeing National Union First Insurance Co. of Pitts- Pee ie burgh v. D & L Construction Co., 333. F. 2d. 169 (C.C:A. 8, 1965); | | Robson v. United i Jasurence C 0., 391 | S.W. 2d 855 oe 1965) ; 7 ch eee? ‘J 4 peas “ ¢ “6 allen United. States for Use of 1 Reelin Lumber _ Company v. Continental Casualty C ompany, rate 340 F, 2d 958 (C.C.A. 8, 1965) ; National Landscaping Co., Inc. v. Custionadt Laiacisie 4 Co., 238° F. Supp. 193 (D.C. Mo. Dy 1966 i _Seabord Surety Co. v. United States 355 F. 2d ; - 139 (C.C.A. 9, 1966); - 4 Tufano. Contracting Corp. v. United States, 356 -F. 2d 535 (C.C.A. 9, 1966); « on Heers v. United States, 357 F. 2d 344: (CECL es. ee a Black, Raber-Kief & Assocites: v. U nited Ss tates, _ 357 F. 2d: 355 (Ct.Cl. 1966); Continental Casualty Company v. &: O. ‘Brand, Inc., 355.£. ere §, — | . ~ a aie . . \. : : \ —30— APPENDIX E.” . - Counsel for petitioners have still pending in ‘their own files. the following ten cases arising only out of the - Beale Air Force Base project, a Capehart Military siantondl ing Act construction project i in California. Céntinental Casualty Company v. Hartford Ac- cident and Indemnity Company : “4, Country Boys, Inc., 3 Civ. 11110 (this case is‘on appeal in the ‘District Céurt of’ Appeal of California) ; B: €. Richter Contracting Co., Inc. v. Hal B. Hayes and Agsociates and Continental Casualty ti 90 ompany, Yuba veer Superior Court case, . No. 14960; B. C. Richter Contracting dba-R-& E Materials v. Hal B. Hayes and Associates and Continen- - tal Casualty C ompany, Yuba County Superior Court case No. 14491; Lord & Bishop Inc. v. C. O. Brand, — Hart- b __ ford Accident and Indemnity and Continental € asualty Gi ‘ompany, Sacramento Municipal - Court case No. 63937; 7 "United States for the Use of C. O. Brand: Tne; v.* - Hartford Accident ‘and Indemnity Company, — ' with cross-complaint’ of Continental Casualty 6% i Casualty Gompany, United States . District v. C. O. Brand, Inc.. with cross-complaint by Continental Casualty Co ompany, against Anchor’ eh ' Company v. C. O. Brand, Inc. and Anchor | Ee Oe ; Court, Northern District of California, North- -‘ . . ern Division Case No. 8284; peti Ss United States for the Use of Tay-Holbrook Inc. - <—31— : fe es da | ht ge tee & ae C alae C ‘ompany, United States District . - -Court, Northérn District of California, North- ern Division Case No. 8031 ; Ale : United States for Use of Grinnell C 1 Cobapeny of the’, Pacific v. C. O; Brand, Inc. with cross- complaint of Continental Casualty C ompany , ° against Anchor Casualty Company, United ' States District Court, ‘Northern District of | v6 My See ‘| California, Northern Division Case No. 8035; .&° - ce C. O. Brand, Inc. v. Wurtsiith and Continental = * Cesualty Company, Yaba County — Court case No. 15169; . a C: O.. Brand, Inc. v: Hal B. pea lie: and ae ‘Continental Casualty Company, Yuba County f. . Superior Court case No. 15170; _ tc O.. Brand, Inc. v. Hal B. Hayes and Continen- tal Casualty Company, Yuba County — | Court Case No. 15171. : ‘ Obviously, these cases from cvtaaialal own files cannot and do not constitute the Sole _Temaining uncompleted litigation. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1532%3A1. Public record. Not legal advice.