Complaint — United States for the Use and Benefit of F.D. Thomas, Inc. v. Federal Insurance Company et al.

Summary

This is a Complaint filed August 12, 2024 in the Southern District of Georgia, Brunswick Division, by the United States for the use and benefit of F.D. Thomas, Inc., and F.D. Thomas, Inc. against Federal Insurance Company and Travelers Casualty and Surety Company of America under the Miller Act. It alleges that the Navy awarded a contract on September 26, 2018 to general contractor MAM for work at the Explosive Handling Wharf at Kings Bay, and that Federal and Travelers issued the payment bond. FDT says it took on blasting, coating and sealant work in a subcontract of $17,994,721.00 and incurred additional costs in excess of $25,930,391.95. Count I demands judgment, jointly and severally, in a principal amount in excess of $27,362,990.86, plus interest.

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“Complaint — United States for the Use and Benefit of F.D. Thomas, Inc. v. Federal Insurance Company et al.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-24-cv-00097-dkt-1-259e61f970/, SHA-256 b451a36f1f5081acc0d7ed942527531d9c5bffafb0596519154babcead536be1.

Full text

Case 2:24-cv-00097-LGW-BWC Document 1 Filed 08/12/24 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

BRUNSWICK DIVISION

UNITED STATES FOR THE USE AND
BENEFIT OF F.D. THOMAS, INC.,

AND

F.D. THOMAS, INC.,

Plaintiffs,
v.

FEDERAL INSURANCE COMPANY, Case No. __________

AND

TRAVELERS CASUALTY AND
SURETY COMPANY OF AMERICA,

Defendants.

COMPLAINT

United States of America for the use and benefit of F.D. Thomas, Inc. and F.D. Thomas,

Inc., by and through its undersigned counsel, state as follows for their Complaint against Federal

Insurance Company and Travelers Casualty and Surety of America.

PARTIES

1. F.D. Thomas, Inc. (“FDT”) is a construction company incorporated in Oregon, with

its principal place of business in Central Point, Oregon.

2. Upon information and belief, Federal Insurance Company (“Federal”) is an

insurance company incorporated in New Jersey, with its principal place of business in Whitehouse

Station, New Jersey.

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3. Upon information and belief, Travelers Casualty and Surety Company of America

(“Travelers”) is an insurance company incorporated in Connecticut, with its principal place of

business in Hartford, Connecticut.

JURISDICTION AND VENUE

4. This action is brought pursuant to the federal Miller Act, codified in 40 U.S.C. §§

3131, et seq. Pursuant to 40 U.S.C. § 3133(b)(3)(A), this action is brought in the name of the

United States for the use and benefit of FDT.

5. Pursuant to 28 U.S.C. § 1331, this Court has subject matter jurisdiction over this

civil action that arises under the laws of the United States. In addition, this court has pendent

jurisdiction over the other claims brought herein.

6. This Court has personal jurisdiction over Defendants pursuant to O.C.G.A. § 9-10-

91 because, among other things, the claims asserted by FDT against Defendants in this action arise

from Defendants’ regular transaction of business in the State of Georgia.

7. Pursuant to 40 U.S.C. § 3133(b)(3)(B), this action is brought in the United States

District Court for the district in which the contract was to be performed. The claims stated in this

Complaint arose from the performance of a subcontract on a federal public works project

constructed at the Naval Submarine Base in Kings Bay, Georgia. As such, venue is proper in the

Southern District of Georgia, Brunswick Division.

FACTUAL ALLEGATIONS

8. On September 26, 2018, the United States Navy (“NAVY”) awarded Contract No.

69459-18-C-0905 to M.A. Mortenson Company (“MAM”), a general contractor, which included

two contract line-item numbers (“CLINS”) to be performed in two phases at the Explosive

Handling Wharf (“EHW”) located at Kings Bay Submarine Base in Kings Bay, Georgia (the

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Case 2:24-cv-00097-LGW-BWC Document 1 Filed 08/12/24 Page 3 of 6

“Project”).

9. Pursuant to the Miller Act, 40 U.S.C. §§ 3131 to 3134, Federal and Travelers, as

sureties, provided a payment bond (the “Bond”) on behalf of MAM, as principal, to the NAVY as

security for payment of subcontractors and suppliers for labor and materials provided to the

Project.

10. MAM subsequently entered into a subcontract with CL Coatings, LLC (“CLC”) to

perform all of the steel blasting and coating work, which included bays 1 through 13 of the Project.

11. MAM also entered into a subcontract with Brand Safway to design and install the

scaffolding necessary for CLC to perform the blasting and coating work.

12. Over the next 18 months, MAM became dissatisfied with CLC’s performance and,

having been pleased with FDT’s performance on prior projects, approached FDT to supplement

CLC in its performance of the work.

13. FDT priced the work various times throughout the fall of 2020, and MAM

ultimately agreed to award a portion of CLC’s scope of work for the blasting, coating and sealant

work of bays 7 through 13 and the support building exterior to FDT in the amount of

$17,994,721.00 (the “Subcontract”).

14. Throughout FDT’s performance of the Subcontract, FDT experienced changes and

delays to the work for which FDT is not responsible, including but not limited to a (1) lack of

access and temporary power delay, (2) steel repair funding delay, (3) dry dock labor directive

impact, (4) improper inspections delay, and (5) resequencing of work.

15. The changes and delays experienced by FDT on the Project caused FDT to incur

additional costs in excess of $25,930,391.95 for which FDT has requested payment in the form of

proposed change orders, invoices, and two requests for equitable adjustment (the “REAs”) to no

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Case 2:24-cv-00097-LGW-BWC Document 1 Filed 08/12/24 Page 4 of 6

avail.

16. In addition to the changes and delays captured in the REAs, MAM is also

withholding the retainage amounts due under the Subcontract in an amount in excess of

$1,432,598.91.

COUNT I – CLAIM ON PAYMENT BOND
(FEDERAL INSURANCE COMPANY AND TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA)

17. The allegations in the foregoing Paragraphs are incorporated herein by reference as

if fully stated herein.

18. As required by the federal Miller Act, 40 U.S.C. §§ 3131 et seq., Federal and

Travelers issued the Bond guaranteeing payment to subcontractors like FDT that furnished labor

or material for the Project.

19. FDT furnished labor or material in carrying out work provided in a contract for

which a payment bond was furnished under 40 U.S.C. § 3131.

20. FDT timely submitted payment applications and REAs for work it performed on

the Project.

21. MAM has failed or otherwise refused to remit payment to FDT for all work it

performed on the Project, including the delays and changes caused by MAM.

22. FDT performed all the terms and conditions required of it under the Subcontract

and the Bond and/or is otherwise excused from performance because of MAM’s breach of its

obligations to FDT.

23. This action has been filed within one year of the last day FDT provided labor or

materials to the Project. Consequently, pursuant to 40 U.S.C. § 3133(b)(1), FDT may bring an

action on the Bond for the amount unpaid.

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Case 2:24-cv-00097-LGW-BWC Document 1 Filed 08/12/24 Page 5 of 6

24. In addition to its failure to respond to the REAs, MAM has failed to pay the

remaining monies due FDT under the Subcontract.

25. FDT demands judgment in its favor and against Federal and Travelers, jointly and

severally, in the principal amount in excess of $27,362,990.86, plus interest, and for such further

and different relief as the Court deems just and proper.

DEMAND FOR JUDGMENT

WHEREFORE, Plaintiff FDT prays the Court to enter judgment as follows:

1. That Defendants be held jointly and severally liable under each claim for relief set

forth in this Complaint;

2. That FDT has and recovers monetary damages against Defendants for all damages

suffered as a result of the acts complained herein;

3. That FDT has and recovers pre-judgment and post-judgment interest as may be

allowed by law;

4. That the costs of this action, including reasonable attorneys’ fees, be taxed against

Defendants pursuant to applicable law; and

5. That the court award FDT such other and further relief as may be deemed just and

proper.

Respectfully submitted this 12th day of August, 2024.

BRADLEY ARANT BOULT CUMMINGS LLP

/s/ John H. Elliott
John H. Elliott
Georgia Bar No. 350612
Bob Symon (Pro Hac Vice Application
Forthcoming)
Eric A. Frechtel (Bar No. 24945) (Pro Hac Vice
Application Forthcoming)

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Case 2:24-cv-00097-LGW-BWC Document 1 Filed 08/12/24 Page 6 of 6

Jackson Parker (Pro Hac Vice Application
Forthcoming)
Georgia Bar No. 133537
Promenade Tower
1230 Peachtree Street NE, 20th Floor
Atlanta, GA 30309
jelliott@bradley.com
rsymon@bradley.com
efrechtel@bradley.com
jparker@bradley.com
Telephone: 404-868-2100
Facsimile: 404-868-2010

Counsel for Plaintiff F.D. Thomas, Inc.

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