Opinion
No. 70-030 (Supreme Court No. 22937)
Decided February 10, 1970.
Action against surety on statutory bond of a public works contractor. On agreed statement of facts, summary judgment for plaintiff entered.
Reversed
1. LIMITATION OF ACTIONS — Surety Bonds — Public Works Contractors — Six-month Limitation. Actions against surety company on statutory bonds posted by public works contractors under the provisions of C.R.S. 1963, 86-7-6 must be commenced within six months.
2. Statutory Limitations — Applicable — Public Works Contracts. The statutory limitation on commencement of actions applies to public works contracts generally and is not limited to the types of public bodies mentioned in C.R.S. 1963, 86-7-4.
Error to the District Court of the City and County of Denver, Honorable Robert W. Steele, Judge.
Weller, Friedrich and Hickisch, H. Gayle Weller, Martin J. Andrew, for plaintiff in error.
Wormwood, Wolvington, Renner and Dosh, Laird Campbell, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
This suit was instituted by Empire Clay Products, Inc., as plaintiff below, defendant in error here (hereinafter referred to as "plaintiff"), against United States Fidelity and Guaranty Company, the plaintiff in error, defendant below (hereinafter referred to as "defendant"). Plaintiff brought its action against defendant on the basis that defendant was surety on the statutory bond of a public works contractor.
The defendant contended that the action was barred by the statutory limitation contained in C.R.S. 1963, 86-7-4, which requires that any action for material furnished or rendered shall be brought within six months after the completion of work.
After the commencement of the action, the parties entered into an agreed statement of facts, and each moved for summary judgment. The trial court granted the plaintiff's motion and entered judgment in its favor in the total amount of $6,336, which amount was subsequently modified pursuant to motion by the defendant with the result that a total judgment of $4,898 was entered. By granting the plaintiff's motion for summary judgment, the court ruled that the six-month limitation contained in C.R.S. 1963, 86-7-4, did not apply to public works bonds posted by contractors under the provisions of C.R.S. 1963, 86-7-6.
Subsequent to the filing of this appeal, our Supreme Court rendered its decision in the case of General Electric Company v. Webco Construction Co., and National Union Fire Insurance Company, 164 Colo. 232, 433 P.2d 760. The principal issue in that case, as here, was whether the six-month limitation for commencement of suit contained in Sec. 86-7-4 was applicable to actions against surety bonds posted by public works contractors under the provisions of Sec. 86-7-6. The Supreme Court held there that such time limitation did apply to bonds posted under such latter statutory section.
It is our opinion that the decision of our Supreme Court in the Case of General Electric Company v. Webco Construction Co., and National Union Fire Insurance Company, supra, fully disposes of the issues in this case. In a supplemental brief filed in this matter, the plaintiff argues that General Electric is distinguishable from the present case on the basis that the General Electric case involved a school district, which type of public body is specifically mentioned in both Secs. 86-7-4 and 86-7-6, whereas in this case the public entity, which was a hospital district, is not a type of public entity specifically referred to in Sec. 86-7-4. We do not read the General Electric case as being that narrow in its holding. In reaching its decision in the General Electric case, our Supreme Court approached the problem on the basis of analyzing the statutory bonds given in connection with public works contracts generally, and there is no implication in the decision that its reasoning should be limited to the types of public bodies specifically mentioned in Sec. 86-7-4.
The judgment of the trial court is reversed with the direction that judgment be entered in favor of the defendant.
JUDGE DWYER and JUDGE ENOCH concur.