United States District Court, D. South Dakota, Southern Division
UNITED STATES OF AMERICA, FOR THE USE AND BENEFIT OF ASH EQUIPMENT CO., INC. D/B/A AMERICAN HYDRO; AND ASH EQUIPMENT CO., INC., A MARYLAND CORPORATION; Plaintiffs,
MORRIS, INC., A SOUTH DAKOTA CORPORATION; UNITED FIRE AND CASUALTY COMPANY, AN IOWA CORPORATION; AND RED WILK CONSTRUCTION, INC., A SOUTH DAKOTA CORPORATION; Defendants.
ORDER DENYING DEFENDANT MORRIS, INC.'S MOTION IN
LIMINE CONCERNING MILLER ACT DAMAGES DOCKET NO. 235
VERONICA L. DUFFY United States Magistrate Judge.
a Miller Act action (40 U.S.C. § 3133(b)(3)(B)), brought
by the United States of America for the use and benefit of
Ash Equipment Company, Inc., doing business as American Hydro
(“Hydro”). Defendants are the general contractor
on the project, Morris, Inc. (“Morris”); the
company that issued the payment bond, United Fire and
Casualty Company (“UF&CC”); and
hydrodemolition subcontractor Red Wilk Construction, Inc.
(Red Wilk). Pending before the court is a motion in
limine filed by Morris seeking to prohibit Hydro from
introducing certain elements of damages at trial on the
grounds that such elements of damages are not allowed under
the Miller Act. See Docket No. 235. This matter is
before this court on the consent of all parties pursuant to
28 U.S.C. § 636(c).
Morris contracted with the United States Army Corps of
Engineers (“the Corps”) to do work on the Fort
Randall Dam spillway at Pickstown, South Dakota, in
September, 2013. Morris obtained a Miller Act payment bond on
the project from defendant UF&CC in the amount of $7,
472, 670.25. The payment bond obligated Morris and UF&CC
jointly and severally to guarantee payment to any
subcontractor of Morris' who furnished labor and
materials on the project as well as to persons who had a
direct contractual relationship with Morris on the project.
project plans and specifications of the Corps required
concrete removal using hydrodemolition methods. Morris
subcontracted this work to Red Wilk in October, 2013. Red
Wilk in turn subcontracted with Hydro in April, 2014. Red
Wilk promised to pay Hydro for Hydro's work on the
project within 10 working days after Morris paid Red Wilk on
monthly progress payments.
began work on the project in May, 2014. It removed its
equipment and labor from the project work site on August 25,
2014. Hydro brought suit on August 22, 2014, after Red Wilk
allegedly failed to pay for certain claims made by Hydro for
completed work on the project. Hydro gave notice to Morris
that it had not been paid. In its complaint, Hydro asserts a
common law breach of contract claim against Red Wilk, an
equitable claim in quantum meruit against Morris,
and a Miller Act claim against the UF&CC bond.
now moves for an order in limine prohibiting Hydro
from introducing evidence concerning certain damages at
trial. Specifically, Morris seeks to prevent the jury from
hearing Hydro's evidence as to unpaid unit price work,
acceleration, lost productivity, unplanned executive
oversight and management, lost profits and overhead, and
"indirect equipment." See Docket No. 236.
The basis for the motion is Morris' argument that these
categories of damages are unavailable under the Miller Act.
course, this argument ignores the fact that Hydro has
asserted a common law breach of contract claim against Red
Wilk and a claim for quantum meruit against Morris.
Thus, the Miller Act and its restrictions on the types of
damages available is not the sole source of determining what
evidence as to damages will be relevant at trial. Morris does
not address in its motion whether the categories of damages
at issue would be recoverable under Hydro's contract
claim or quantum meruit claim.
resists Morris' motion on procedural grounds. It argues
that Morris' in limine motion is really a motion
for partial summary judgment as to Hydro's damages. As
such, Hydro argues the court should not grant the motion
because Morris' allegedly dispositive motion was not
timely filed. This procedural argument appears to leave open
the possibility that this court would allow the jury to hear
improper evidence as to damages solely because Morris did not
make its motion in the right form or at the right time. Such
is not the case. This court has a duty to correctly instruct
the jury as to the law regarding damages allowed under the
Miller Act claim, regardless of whether Morris or any other
party has made that law a subject of an earlier motion.
Hydro merely incorporates by reference its arguments about
damages from its reply to its own motion for partial summary
judgment. See Docket No. 244 at p.9, incorporating
arguments made at Docket No. 216 at pp. 29-32. Inasmuch as
that partial summary judgment remains to be decided, this
court will defer any substantive decision about allowable
Miller Act damages to a future opinion ruling on that
partially dispositive motion.
cause not ...