409 F. 2d 1326 - General Insurance Company of America v. United States Audley Moore & Son

In our original opinion we held that appellee's going on the premises to make final inspections and to take measurements for the purpose of preparing his final estimate was insufficient to constitute supplying labor [in the prosecution of the work] within the meaning of 40 U.S.C.A. § 270b(b). The visit to the premises by appellant occurred in late April or early May. His activity on the premises had ceased for several weeks. His final payroll had been submitted for the period ending April 2.

Appellee advances the theory that the taking of measurements, and the subsequent preparation of the final estimate on May 4, constituted supplying labor in the prosecution of the work, by reason of a general provision of the contract that "on the 25th of each month * * * subcontractor shall submit to the contractor an estimate of material on hand and work done." The gist of appellee's argument is that anything which he did in compliance with the terms of his contract constituted furnishing labor in the prosecution of the work, and until he discharged his every legal duty under the contract the statute of limitations did not begin to run.1 Labor furnished in the prosecution of the work is not co-terminous with the outer limits of all duties provided by the contract.

Our original opinion, 406 F.2d 442, referred, by way of analogy, to the principle that correction of errors does not extend the time for filing suit. In his petition for rehearing appellee directs us to the per curiam opinion in Trinity Universal Ins. Co. v. Girdner, 379 F.2d 317 (5th Cir. 1967), which states that the language in 40 U.S.C.A. § 270b(b) "is broad enough to include work performed upon the demand of the government to correct defects in the work as originally completed." Id. at 318. We consider Trinity. In that case the inspector refused to approve the original work unless defective parts were replaced. This is to be distinguished from the situation in which labor is supplied or material furnished to correct defects after the work has been completed.

Appellee's other assertions of error also are without merit.

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (FRAP 35; Local Fifth Circuit R. 12), the Petition for Partial Rehearing En Banc is denied.