Opinion
Civil No. JFM-03-2020
December 22, 2003
MEMORANDUM
Plaintiff has brought this action under the Miller Act. Defendants have filed a motion to dismiss on the ground that plaintiff's claim is barred by limitations. Defendants' motion will be granted.
It is undisputed that plaintiff filed this action after the one-year deadline imposed by 40 U.S.C. § 3133(b)(4). Plaintiff asserts, however, that defendants are equitably estopped from asserting limitations as a defense. Plaintiff's position is entirely without merit. Unlike the surety company in United States ex rel. Humble Oil Refining Co. v. Fidelity and Cas. Co. of New York, 402 F.2d 893 (4th Cir. 1968), Liberty Mutual never made a clear and definite promise that it would pay plaintiff's invoices. To the contrary, in the letter Liberty Mutual sent to plaintiff in response to plaintiff's first claims submission, Liberty Mutual expressly stated that "this communication should not be construed as a waiver of any rights or defenses that may be available to . . . [Liberty Mutual] and its Principal." Liberty Mutual never thereafter took any action or conveyed any message to plaintiff suggesting that it was backing away from this express caution of non-waiver. Accordingly, the doctrine of equitable estoppel is inapplicable. See United States ex rel. J. Bobby Currin Sons v. J W Builders, Inc., 17 Supp.2d 462 (M.D.N.C. 1996).
A separate order granting the defendants' motion to dismiss is being entered herewith.