Murrish v. Industrial Indemnity Co.

California Court of Appeal Mar 21, 1986 No. A026779Published

Before: Racanelli

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Holding. The court held that a claimant who waives a tort and sues in quasi-contract does not establish a 'direct contractual relationship' under Civil Code section 3091, and therefore must comply with the 90-day notice requirement to enforce a payment bond.

Issues

Whether a claimant who waives a tort and sues in quasi-contract satisfies the 'direct contractual relationship' exception to the 90-day notice requirement under Civil Code section 3091.
Whether the appellant's failure to provide the 90-day notice bars enforcement of the payment bond claim.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The election to waive the tort and sue in assumpsit does not of itself provide the essential contractual relationship.”

“Since no direct contractual relationship existed between appellant and Watson Company at the time the fill material was converted, appellant fails to come within the exception to the notice requirement.”

“such noncompliance with the 90-day notice requirement precludes appellant’s ability to enforce a claim on the surety payment bond.”

Opinion

RACANELLI, P. J.

This appeal concerns the timeliness of appellant-claimant’s 90-day notice to a payment bond surety pursuant to Civil Code section 3091. The trial court determined that the required notice was untimely and granted judgment on the pleadings in favor of defendant. We affirm for the reasons stated.

Procedural Background

The relevant procedural background reveals the following: On September 14, 1981, appellant Murrish and R & D Watson, Inc., (hereafter Watson Company) entered into a contract whereby Watson Company would remove dirt from appellant’s land for use in a public work project.

The complaint

[1208]

alleged that prior to October 30, 1981, Watson Company completed the contract, paid plaintiff, and “the contract did become fully executed and at an end”; that on or about October 30, 1981, Watson Company requested but was denied permission to remove additional dirt from appellant’s land; that thereafter Watson Company trespassed on appellant’s property and wrongfully converted some 11,670 additional cubic yards of dirt-fill for use in the public project.

On December 10, 1982, appellant served a preliminary bond notice on Watson Company and respondent Industrial Indemnity declaring his intention to claim compensation for the stolen fill and related damages.

On January 2, 1983, appellant filed a complaint against the named defendants for damages caused by the trespass and conversion. After filing its answer, respondent Industrial Indemnity moved for a judgment on the pleadings on the grounds that the December 10 bond notice was untimely thus barring enforcement of the payment bond claim.

On March 30, 1984, the trial court entered a minute order granting the motion.

On April 4, 1984, appellant filed a notice of appeal challenging that order.

Discussion

Murrish v. Industrial Indemnity Co.

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RACANELLI, P. J.

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