Sam Finley, Inc. v. Interstate Fire Insurance Company Et Al., 135 Ga. App. 14, 217 S.E.2d 358 (1975)
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Summary
Judgment affirmed in part and reversed in part. Quillian and Marshall, JJ., concur.
Summary
Judgment affirmed in part and reversed in part. Quillian and Marshall, JJ., concur.
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Webb, Parker, Young & Ferguson, Harold T. Daniel, Jr., Barry F. Shea, Bertram S. Boley, for appellant.
A subcontractor, on June 19, 1973, brought an action against a contractor seeking recovery of the amount owed the complainant by the contractor arising out of the performance by the complainant of the subcontract with the contractor, and subsequently on October 29, 1973, filed a motion to make the surety on a labor and material payment bond (on which the contractor was the principal) a party to the action. The motion was granted and an amendment was filed on November 14, 1973, naming the surety as a defendant in Count 2 of the complaint as amended seeking recovery of the debt owed by the contractor to the subcontractor complainant, and service upon the surety was had within a reasonable time.
The surety filed a motion for summary judgment contending the amendment did not relate back to the time of filing the original complaint and that the one year limitation for bringing an action upon the bond had expired prior to filing the amendment. The plaintiff also made a motion for summary judgment based upon the admission of the debt by the contractor and contending that the amendment did relate back to the filing of the original complaint so as to prevent the application of the one year limitation provided for in the bond. On the hearing it appeared that the general contractor had completed the work "on or after June 21, 1972" or on or before "August 22, 1972," which disclosed that the original complaint had been filed within the one year limitation period. The trial judge overruled the complainant's motion for summary judgment and granted the surety's motion for summary judgment. The complainant appealed. Held:
1. Where a labor and material payment bond is given to the owner in which the general contractor is principal, and an insurance company is surety, which bond provides that no suit or action shall be commenced thereunder by any claimant after the expiration of one year following the date on which the principal ceased work on such contracts such limitation upon the bringing of an action by a beneficiary of the contract is not void on the grounds of public policy. See, Walton v. American Mut. Fire Ins. Co.,
"A narrow interpretation of Rule 15 (c) is illustrated by L. E. Whitham Construction Co. v. Remer [105 F2d 371]. The original complaint contained a cause of action for wrongful death. Subsequently, the plaintiff amended to state two additional 'causes of action,' one for damages suffered on account of expenses incurred during the last illness and for the funeral of the decedent, and the other based on pain and suffering of the decedent prior to his death. The court of appeals held that the amendment would not relate back since, under state law, the two added claims were separate 'causes of action.' This decision seems improper, since the additional claims clearly arose out of the 'transaction or occurrence' set forth in the original complaint, i.e., the death of the decedent; the defendant had full notice that plaintiff was asserting a claim based on the death and only a conceptualistic notion of cause of action would prevent relation back. The decision has been generally criticized, and generally repudiated by other cases.
"Also rejected are various mechanical rules which sometimes have been used in applying Rule 15 (c), such as whether evidence on the new claim could have been offered under the original pleadings, whether a judgment on the old or the new claim would bar the other, and whether the same defense could be offered against both claims. Such rules are properly rejected, since they largely reflect attempts to limit relation back to the same 'cause of action,' when the Rule has abandoned that concept in favor of the 'same transaction or occurrence' test." Moore's Federal Practice, Vol. 3, Par. 15.15 [3], pp. 1025-1032.
It is apparent that the strict rule of no relation back of the amendment to the time of filing the original complaint because the assertion of a new cause of action is no longer applicable unless the causes of the action are not only different but arise out of wholly different facts. The claim asserted in the original complaint and the claim asserted in the amendment to that complaint arose out of the failure of the contractor to pay the subcontractor, and in both recovery of this debt is sought, although in the original complaint the cause of action is based on the contract between the subcontractor and contractor and in the amended complaint the cause of action strictly speaking is asserted on the surety bond ;executed by the contractor and the surety. Though these may be, strictly speaking, different causes of action they are not causes of action arising out of wholly different facts, but arising out of the identical facts. We accordingly, hold that the amended claim met the requirement of this portion of Section 15 (c) of the Civil Practice Act.
3. (a) However, upon the hearing the plaintiff offered no evidence showing the requirements of the second sentence of Section 15 (c) were complied with. There being no evidence showing the surety had notice or knowledge of the institution of the original complaint, the burden being upon the plaintiff on its motion for summary judgment to produce such proof and it having failed to do so, the trial judge did not err in overruling plaintiff's motion for summary judgment.
(b) While the surety presented some evidence by one official, that the official had not been notified and that the files of the surety in the official's possession did not contain any notice of the original complaint, the official admitted that other offices of the surety, including its home office in Chattanooga could have received such notices and that he did not know whether they had received such notices or not. Accordingly, the surety not having produced evidence demanding a finding it did not receive such notices failed to carry the burden cast upon it as to its motion for summary judgment. The trial court, therefore, erred in granting summary judgment to the defendant security. See, State of Ga. v. Snyder Bros. Co.,
Weltner, Kidd, Crumbley & Tate, R. Alex Crumbley, Powell, Goldstein, Frazer & Murphy, James H. Keaten, Daniel M. Coursey, Jr., Frank Mays Hull, for appellees.
1975
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