Opinion
No. 76-634
Decided August 11, 1977. Rehearing denied September 8, 1977. Certiorari granted February 6, 1978.
Trustees of labor union trust fund brought action against contractor, bonding company, and school board to recover the payments allegedly due the trust fund in connection with construction of a school. From summary judgment for defendants, plaintiffs appealed.
Affirmed
1. BONDS — Public Works Project — Payments Due — Union Trust Fund — Defaulting Subcontractors — No Labor Furnished — No Recovery on Bonds. Public Works Contractors Bond Statute provides that surety bond required on public works project shall provide coverage only to "persons . . . furnishing . . . subcontractors with labor," and accordingly, since trustees of union trust fund furnished no labor to defaulting subcontractors on school construction project, they could not recover the amounts due the trust fund from the proceeds of the public works bond.
Appeal from the District Court of Boulder County, Honorable William D. Neighbors, Judge.
Gorsuch, Kirgis, Campbell, Walker Grover, David M. Powell, for plaintiffs-appellants.
Meer, Wolf Slatkin, P.C., Albert B. Wolf, for defendants-appellees.
Plaintiffs, Trustees of the Colorado Carpenters and Millwrights Fund, initiated this action to recover payments allegedly due the trust fund in connection with the construction of a high school. The trial court granted summary judgment in favor of defendants, Pinkard Construction Co., Travelers Indemnity Company, and the Board of Education, and the Trustees appeal. We affirm the judgment.
The following facts were established in conjunction with the summary judgment proceeding.
Pinkard was a general contractor. The Trustees administered a trust fund for the beneficiaries thereof in compliance with the Labor-Management Relations Act of 1947. See 29 U.S.C. § 186(c) (1947). Pinkard executed a contract with the Carpenters District Council of Denver wherein Pinkard was required to pay directly to the Trustees specified amounts for certain of its employees as contributions towards a vacation fund, health benefit plan, and pension plan administered by the Trustees. Pinkard was also obligated pursuant to the contract to require all of its subcontractors to execute a similar contract with the Council.
Pinkard executed a contract with the Board to erect a high school. In accordance with the Colorado Public Works Contractors Bond Statute, § 38-26-105, C.R.S. 1973, Pinkard posted a laborman's and materialman's bond for the project upon which Travelers was obligated as surety. In conjunction with the project, Pinkard complied with the terms of its contract with the Council and paid to the Trustees the contributions required for its employees.
Pinkard engaged Apache Flooring Company and General Interiors, Inc., as subcontractors for the project. The subcontractors executed a contract with the Council agreeing to pay the specified contributions for certain of its employees to the Trustees. However, Apache and General failed to do so with the result that the Trustees instituted this action to recover against the bond posted by Pinkard.
Insofar as pertinent here, section 105 and section 106(a) of the Public Works Contractors Bond Statute provide:
"Any . . . firm . . . entering into a contract with any . . . school district for the construction of any public building . . . shall be required before commencing work to execute . . . a penal bond . . . conditioned that such contract shall at all times promptly make payments of all amounts lawfully due to all persons supplying or furnishing him or his subcontractors with labor or materials used or performed in the prosecution of the work provided for in such a contract . . . ." Section 38-26-105, C.R.S. 1973.
"Such bond shall be duly executed by a qualified corporate surety conditioned upon the faithful performance of the contract and, in addition, shall provide that if the . . . subcontractor fails to duly pay for any labor . . . the surety will pay the same . . . ." Section 38-26-106(2), C.R.S. 1973.
[1] Based upon the decision of this court in Ridge Erection Co. v. Mountain States Tel Tel. Co., 37 Colo. App. 477, 549 P.2d 408 (1976), the trial court concluded that the Trustees could not recover contributions due from Apache Flooring and General Interiors from the proceeds of the bond. The Trustees challenge this ruling contending that Ridge Erection is not applicable to the facts of this case, that the contributions are payment for "labor" as that term is used in section 106(2), and that, therefore, the trial court should have entered judgment for the Trustees. We agree with the trial court's ruling.
In Ridge Erection the issue was whether trustees administering a fund similar to that involved in this case were entitled to a mechanic's lien for unpaid contributions pursuant to § 38-22-101(1), C.R.S. 1973, of the Mechanics' Lien Act, as payment for "labor done." In concluding that the Trustees could not claim a lien, we noted, inter alia, that the Mechanics' Lien Act contained an express enumeration of classes of persons entitled to claim a lien and that the trustees were not included therein. On the other hand, we noted that the Act was amended in 1975 to include specifically "the payments required under any labor contract to any trust," and that it must be assumed that the revision of the prior law was intended to supply some deficiency. Hence, for these reasons and others we held that the trustees, whose claim arose prior to the effective date of the amendment, could not claim a lien.
Section 105 of the Public Works Contractors Bond Statute was originally passed in 1915, see Colo. Sess. Laws 1915, ch. 135, p. 395, and section 106 was added in 1923. See Colo. Sess. Laws 1923, ch. 155 § 2 at 480. However, a trust fund such as that involved in this case was not sanctioned by Federal Statute on those dates. See 29 U.S.C. § 186(c) (1947). Hence, we have no basis for assuming that the General Assembly enacted the statute seeking, inter alia, to insure recovery of contributions to a trust fund for those of its beneficiaries employed in the construction of public works. While both sections were also amended in 1975, see § 38-26-105 and 106, C.R.S. 1973 (1976 Cum. Supp.), no provision was added to cover contributions due the Trustees under any labor contract. Accordingly, we must interpret the statute according to applicable rules of construction.
Where the meaning of a statutory provision is plain, and no absurdity is involved, the language is not subject to construction. American Metal Climax, Inc. v. Butler, 188 Colo. 116, 532 P.2d 951 (1975). Thus, insofar as applicable here, the coverage afforded by section 105 was and is limited to "persons . . . furnishing . . . subcontractors with labor." Cf. § 38-26-107, C.R.S. 1973. The Trustees, of course, furnish no labor. Hence, we view the reasoning in Ridge Erection as dispositive of this appeal.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.