Shirley v. Hartford Accident & Indemnity Co.
Cited by
- Hiatt v. Shah 364 P.3d 1138 Ariz. Ct. App. 2015
- Nolan v. Starlight Pines Homeowners Ass'n 167 P.3d 1277 Ariz. Ct. App. 2007
- Smith v. City of Phoenix 858 P.2d 654 Ariz. Ct. App. 1992
- Mullins v. Southern Pacific Transportation Co. 851 P.2d 839 Ariz. Ct. App. 1992
- Berthot v. Security Pacific Bank 823 P.2d 1326 Ariz. Ct. App. 1991
- Colberg v. Rellinger 770 P.2d 346 Ariz. Ct. App. 1988
- Marcus v. Fox 723 P.2d 682 Ariz. 1986
- Buckmaster v. Dent 707 P.2d 319 Ariz. Ct. App. 1985
- Carpenter v. Carpenter 722 P.2d 298 Ariz. Ct. App. 1985
- Lacer v. Navajo County 687 P.2d 400 Ariz. Ct. App. 1984
- First Nat. Bank of Arizona v. Continental Bank 673 P.2d 938 Ariz. Ct. App. 1983
- ASH, Inc. v. Mesa Unified School District No. 4 673 P.2d 934 Ariz. Ct. App. 1983
Authorities cited
Identified automatically; this list may not be exhaustive.
- Thompson v. Harris 452 P.2d 122
- Tiffany Construction Co. v. Hancock & Kelley Construction Co. 539 P.2d 978
- Stone v. Arizona Highway Commission 381 P.2d 107
- B. J. Cecil Trucking, Inc. v. Tiffany Construction Co. 597 P.2d 184
Opinion text
OPINION RICHMOND, Chief Judge. Appellant provided machinery and labor for a materialman supplying rock chips on a sanitary sewerage improvement project. He brought this action to recover unpaid wages and for breach of contract, naming appellees as defendants in addition to the materialman and general contractor. He appeals from summary judgment in favor of appellees and the award of attorney’s fees in the judgment. Although appellant argues that appellees Arizona City Sanitary District and Arizona City Improvement District No. 1 may be liable for the failure of the general contractor to pay his claim, the only authority he cites is Stone v. Arizona Highway Commission, 93 Ariz. 384 , 381 P.2d 107 (1963), abolishing the rule of governmental immunity from tort liability. The record, however, suggests no basis for tort liability. Appellee Hartford Accident & Indemnity Co. is the surety on the general contractor’s license bond and the payment bond furnished pursuant to A.R.S. § 34-222. Appellant’s claim on the license bond is governed by B. J. Cecil Trucking, Inc. v. Tiffany Construction Co., 123 Ariz. 31 , 597 P.2d 184 (App.1979), in which Division One of this court held an identical bond immune from the claim of a supplier of labor or material to a materialman. The reasoning in that case applies equally to the payment bond which, like the license bond, is for the benefit of claimants supplying labor or materials to the contractor or his subcontractors, with no mention of suppliers of a materialman. See also Tiffany Construction Co. v. Hancock & Kelley Construction Co., 24 Ariz.App. 504 , 539 P.2d 978 (1975). Appellant attempts to distinguish the B. J. Cecil and Hancock & Kelley cases because the former involves an independent contractor and the latter a supplier of material. He contends at the least summary judgment was precluded by the question whether he was an employee rather than a supplier of material to a materialman. Inasmuch as the determinative fact in each of those cases is the status of the materialman against whom the claim is made, rather than the status of the claimant, we do not agree that any remaining issue is one of material fact. Appellant’s attack on the award of attorney’s fees is two-pronged: (1) No such fees were requested prior to judgment, and (2) inasmuch as the judgment is based on the absence of any contract, they should not have been awarded under A.R.S. § 12-341.-01. We reject both contentions. If entitled to such fees, appellees could include them in their proposed form of judgment even if not demanded in their pleadings. See Thompson v. Harris, 9 Ariz.App. 341 , 452 P.2d 122 (1969). And § 12-341.01 permits the award of fees in “any contested action arising out of a contract,” whether or not the party commencing the action is found entitled to recover under the contract on which his claim is based. We think the statute is broad enough — bearing in mind its stated purpose “to mitigate the burden of the expense of litigation to establish a just claim or a just defense” — to afford relief for a defendant where the plaintiff is not entitled to recover on the contract on which his action is based. Affirmed. HOWARD and HATHAWAY, JJ., concur.