United States District Court, D. Maryland
PRITCHETT CONTROL, INC.
HARTFORD ACCIDENT AND INDEMNITY COMPANY
Catherine C. Blake United States District Judge.
One of the Kirk Bus Modernization project in Baltimore,
Maryland, required the procurement and installation of
heating, ventilation, and air conditioning automatic
temperature controls equipment ("HVAC controls").
This case is about the Maryland Transit Administration's
("MTA") contract ("the general contract")
with James W. Ancel, Inc. ("JWA") to complete the
modernization project and a subcontract ("the
subcontract") between JWA and : Pritchett
Control, Inc. ("Pritchett"), to carry out the HVAC
controls component of the general contract. Pritchett has
moved for summary judgment on its only claim, which is a
payment bond action under the Maryland Little Miller Act.
(Compl. ¶¶ 22-30.) Hartford Accident and Indemnity
Company, the defendant in the instant matter and the supplier
of the payment bond for the government contract at issue,
contends that Pritchett tortiously interfered with the
general contract between MTA and JWA, and procured the
subcontract between JWA and itself through illegal
means. For the reasons explained below, including
the lack of sufficient evidence in the voluminous record to
indicate that Pritchett interfered with the general contract
or procured the subcontract by illegal means, Hartford is
liable under the payment bond, and summary judgment will be
granted in Pritchett's favor.
preamble here is short. MTA drew up highly-detailed design
plans for a construction project called Kirk Bus
Modernization-Phase 1. (Def s Mem. Opp'n Mot. Summ. J. at
p. 3, ECF No. 36.) MTA then solicited fixed-price bids based
on its design plans and specifications. One such
specification, Section 15900-"HVAC Instrumentation and
Controls," specified, among other directives, that
"[t]he [HVAC] system shall be an extension of an
existing Schneider I/A Series Network 8000 and Enterprise
Network Controller system furnished and installed by
Pritchett Controls." (Def s Mem. Opp'n Mot. Summ.
J., Ex. A, ECF No. 36-1 at p. 3.) It further specified that
"[a]ll work described in this section shall be
installed, wired, circuit tested and calibrated by factory
certified technicians qualified for this work and in the
regular employment of the Pritchett Controls - no
exceptions." (Id. at p. 8.) JWA's bid won
and on August 21, 2013, MTA awarded JWA a $41, 154, 270.00
contract to complete the project. (ECF No. 36 at p. 4.)
project got underway, JWA contacted Pritchett to negotiate a
price for its work under Section 15900. It is undisputed that
Pritchett's price ($820, 000) was almost three times the
cost of the HVAC estimate provided by the MTA Engineer's
Estimate. (James W. Ancel, Sr. Aff. ("Ancel Aff"),
Ex. 2, ECF No. 36-3, at p. 12, (Entry 15900)) JWA proceeded
to solicit HVAC bids from other subcontractors, who responded
with bids that were in the vicinity of the MTA engineer's
estimate. (Defs Mem. Opp'n Mot. Summ. J. at p. 5, ECF No.
36.) While the other subcontractors warranted that their HVAC
controls system would be compatible with the existing
Schneider I/A Series, none of the competing bids were for
another Schneider I/A Series system-one, for example, was for
an Honeywell System, another for a Johnson Controls
system. (See, e.g., Ancel Aff., Ex. 4,
ECF 36-3, at p. 16.) JWA further asserts that there were
other vendors of Schneider equipment in the Baltimore area at
the time, contending that Pritchett misrepresented itself to
MTA as the only Schneider supplier. (See, e.g., id.
at ¶ 13; see also Def s Mem. Opp'n Mot.
Summ. J. at pp. 13-14, ECF No. 36.) It is unclear from the
papers, however, whether Pritchett was the only supplier of
Schneider I/A Series.And regardless, this court is in
no position to pass on the availability of Schneider I/A
Series systems, nor on the merits of the interoperability
concerns voiced repeatedly by MTA throughout the record.
Suffice it to say there were real or feigned interoperability
concerns that led MTA to list Pritchett as the only
acceptable supplier of the HVAC controls
ensuing months, JWA submitted three proposals to MTA for
alternative HVAC control systems, all of which were denied.
(See Def s Mem. Opp'n Mot. Summ. J., Ex. B, ECF
No. 36-1 at pp. 35-36.) The thrust of Hartford's
collusion, tortious interference, and illegality defenses to
paying the bond stem from communications that transpired
between Pritchett and MTA during the two-year period between
August 21, 2013, when MTA and JWA entered into the general
contract, and November 16, 2015, when JWA signed the
Pritchett subcontract. Hartford argues that "Pritchett
contacted the MTA and worked with the MTA to deny [JWA's]
contract right to propose a different product and installer
in violation of both State of Maryland procurement law and
[JWA's] contract rights." (Def s Mem. Opp'n Mot.
Summ. J. at p. 5, ECF No. 36.) To support this allegation, it
submits a series of e-mails, chief among them being repeated
messages between Ba Kalita of Pritchett Controls and Arthur
Ives of MTA from the interim period between the general
contract and the subcontract in which Mr. Ives assures
Pritchett that it will reject competing subcontractor bids,
Mr. Ives and MTA employees express frustration with TWA to
Pritchett, and Pritchett asks for repeated updates. These
communications do not appear free of all impropriety. Indeed,
at one point Mr. Ives tells Kalita: "Jimmy is up to
something! ... Keep all of this Very Confidential so I
don't get into the 'MUD.'" (Def s Mem.
Opp'n Mot. Summ. J., Ex. H, ECF No. 36-1 at p. 100.)
Hartford infers from this lengthy communication chain that
"Pritchett was clearly communicating with MTA to ensure
submittals by [JWA], other than a Pritchett submittal. . .
would be rejected", and that "Pritchett
misrepresented the facts in order to create a sole source
environment." (Def s Mem. Opp'n Mot. Summ. J. at pp.
12, 14, ECF No. 36.)
then, perhaps despite itself, entered into a subcontract with
Pritchett for the HVAC controls work. Pritchett performed the
work and submitted periodic requests for progress payments.
(See Pl.'s Mem. Mot. Summ. J. at pp. 12-14, ECF
No. 31.) Moreover, JWA requested that Pritchett perform
additional work to that enumerated in the subcontract, and
numerous change orders were executed to that effect.
(Pl.'s Mem. Mot. Summ. J. at pp. 14-16, ECF No. 31;
Affidavit of Peter Ewart ("Ewart Aff.") Ex. 7-11,
ECF No. 32-7 - ECF No. 32-11.) One change order entailed a
small deduction in the total subcontract price for work
completed by a different subcontractor. (Ewart Aff. ¶
22, ECF No. 32; Ewart Aff., Ex. 9, ECF No. 32-9.) All told,
the subcontract value, with the various additions and
deduction(s), totaled $750, 397.00. (Pl.'s Mem. Mot.
Summ. J. at pp. 30-31, ECF No. 31.)
filed the instant motion for summary judgment on March 30,
2018, seeking payment of the outstanding $750, 397.00 balance
with interest at $123.35 per day. (ECF No. 30.) On April 10,
2018, Hartford raised for the first time, in an amended
answer, allegations of tortious wrongdoing by Pritchett and
related affirmative defenses to summary judgment. (ECF No.
Hartford filed its response to Pritchett's motion for
summary judgment on April 13, 2018. (ECF No. 36.) Pritchett
filed its Reply on April 27, 2018. Pritchett's motion for
summary judgment is thus ripe for disposition and no hearing
is necessary. See Local Rule 105.6.
Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary
judgment should be granted "if the movant shows that
there is no genuine dispute as to any
material fact and the movant is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(a) (emphases
added). "A dispute is genuine if 'a reasonable jury
could return a verdict for the nonmoving party.'"
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of
Am., 673 F.3d 323, 330 (4th Cir. 2012)). "A fact is
material if it 'might affect the outcome of the suit
under the governing law."' Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Accordingly, "the mere existence of
some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary
judgment[.]" Anderson, 477 U.S. at 247-48. The
court must view the evidence in the light most favorable to
the nonmoving party, Tolan v. Cotton, 134 S.Ct.
1861, 1866 (2014) (per curiam), and draw all reasonable
inferences in that party's favor, Scott v.
Harris, 550 U.S. 372, 378 (2007) (citations omitted);
see also Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 568-69 (4th Cir. 2015). At the same time, the
court must "prevent factually unsupported claims and
defenses from proceeding to trial." Bouchat v. Bait.
Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir.
2003) (quoting Drewitt v. Pratt, 999 F.2d 774,
778-79 (4th Cir. 1993)).
Prima Facie Case for Payment Pursuant to Maryland's
Little Miller Act
has made a prima facie case for payment under the Hartford
surety bond. This is not in dispute. The Maryland Little Miller
Act, Md. Code Ann., State Fin. & Proc. §§
17-101, et seq., requires construction contractors
working on behalf of Maryland public agencies to secure a
payment bond when the public construction contract exceeds
$100, 000. Md. Code Ann., State Fin. & Proc. §
17-104(a). The state analog to the federal Miller Act, the
statute protects suppliers who furnish material and labor on
public construction projects who, but for sovereign immunity,
could secure payment using a mechanics lien. See F. D.
Rich Co. v. U.S. for Use of Indus. Lumber Co., 417 U.S.
116, 122 (1974); Allied Bldg. Prod. Corp. v. United Pac.
Ins. Co., 77 Md.App. 220, 226 (1988). Maryland courts
often look to federal court decisions construing the Miller
Act when interpreting the Little Miller Act. Allied Bldg.
Prod. Corp., 77 Md.App. at 226-27. "The Miller Act
is highly remedial (and) entitled to a liberal construction
and application in order properly to effectuate the
Congressional intent to protect those whose labor and
materials go into public projects[.]" F. D. Rich
Co., 417 U.S. at 124. Under the Little Miller Act, a
subcontractor is entitled to payment from the surety when it
"(1) supplied labor or materials for a contract subject
to [the Act]... (2) has not been paid in full for the labor
or materials within 90 days after the day that the person
last supplied labor or materials for which the claim is made
. ..  [an] action ... [is] filed within one year after the
public body finally accepts the work performed under the
contract." Md. Code Ann., State Fin. & Proc.
§§ 17-108(a)(1)-(2), 17-109(b); see also U.S.
for Use of Honeywell, Inc. v. A &L Mech. Contractors,
Inc., 677F.2d 383, 386 (4th Cir. 1982); United
States ex rel. Warren Painting Co. v. J.C. Boespflug Constr.
Co., 325 F.2d 54, 62 (9th Cir. 1963) ("[a]U that is
required [to establish a Miller Act Claim] is proof that the
labor or material was furnished in the prosecution of the
work provided for in the prime contract, and that the
subcontractor has not been paid therefor").
the uncontested facts demonstrate that Pritchett's claim
meets the requisite test for payment of a surety bond under
the Maryland Little Miller Act. First, the parties do not
dispute that Pritchett supplied labor and materials for the
subcontract and that the subcontract was subject to the
Maryland Little Miller Act. Second, it is uncontested that
Pritchett has not been paid for the labor and materials it
furnished. Third, MTA accepted Pritchett's work on March
15, 2017, and Pritchett's bond payment action was filed
on July 25, 2017, well within the one-year deadline.
Pritchett has thus, made out a viable prima facie claim for