Five Rivers Carpenters District Council Health v. Covenant Construction Services, LLC; North American Specialty Insurance Company

United States Court of Appeals
For the Eighth Circuit
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No. 23-3183
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Five Rivers Carpenters District Council Health and Welfare Fund, and Royce
Peterson and Mike Novy as trustees; Five Rivers Carpenters District Council
Educational Trust Fund, and David Unzeitig and Robert Doubek, trustees
Plaintiffs - Appellees
v.
Covenant Construction Services, LLC; North American Specialty Insurance
Company
Defendants - Appellants
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: May 8, 2024
Filed: August 20, 2024
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Before SMITH, KELLY, and KOBES, Circuit Judges.
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KELLY, Circuit Judge.
Covenant Construction Services, LLC and its surety, North American
Specialty Insurance Company (collectively Defendants), appeal the district court’s1
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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grant of summary judgment in favor of the Five Rivers Carpenters Health and
Welfare Fund and Education Trust Fund, and their respective trustees (collectively,
the Funds) on their claim seeking unpaid fringe-benefit contributions under the
Miller Act, 40 U.S.C. §§ 3131–3133 (2006). We have jurisdiction under 28 U.S.C.
§ 1291, and affirm.
I.
Covenant was the prime contractor on a federal construction project for the
U.S. Department of Veterans Affairs (VA) facility in Iowa City, Iowa. Because this
was a federal construction project, Covenant was required to obtain a “payment
bond” under the Miller Act. See § 3131(b)(2). The Miller Act is intended “to provide
security for payment of those who supply work or materials for the prosecution of
federal projects to which state law lien rights do not attach.” United States ex rel.
Olson v. W.H. Cates Constr. Co., 972 F.2d 987, 989 (8th Cir. 1992) (citing 40 U.S.C.
§ 270a, now codified at §§ 3131–3132). A payment bond ensures that suppliers of
labor and material on federal projects are fully protected in carrying out contracted-
for work. See § 3131(b)(2). In this case, Covenant obtained surety for its payment
bond obligation from North American Specialty Insurance Company.
In September 2018, Covenant subcontracted with Calacci Construction
Company, Inc. to supply carpentry labor and materials necessary to complete the
VA project. Calacci entered into a collective bargaining agreement (CBA) with two
regional unions representing the majority of its laborers—North Central States
Regional Council of Carpenters and the United Brotherhood of Carpenters &
Joiners. As the signatory employer to the CBA, Calacci agreed to pay fringe-benefit
contributions based on each hour that its laborers worked, to be directly deposited to
the Funds.2
2 The Funds are multiemployer employee fringe-benefit funds, as defined
under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
§§ 1002(3), (37), and organized under the Labor Management Relations Act of 1947
(LMRA), 29 U.S.C. § 186(c)(5).

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Under both the CBA and trust agreements with the unions, the Funds had the
express authority to receive, collect, and demand payment of any delinquent fringe-
benefit contributions owed by Calacci.3 Calacci also agreed in the CBA that if it
failed to pay benefit contributions owed “for the duration of all work to be
performed,” then it must “pay all attorney fees and costs incurred in collecting such
sums that are due” to the Funds. In addition, Calacci would “bear the accounting
costs incurred by the Trustees or the Union” in the collections process, including a
10 percent late fee.
Despite multiple demands, Calacci, refused to remit the benefit contributions
owed to the Funds through June 18, 2021, the last day of Calacci’s union employees’
labor on the project. On September 10, 2021, counsel for the Funds emailed an
employee of Covenant to inform them that the Funds “[would] be filing a Miller Act
Notice.” The Funds requested a copy of Covenant’s Miller Act “payment bond and
surety’s contact information.” That same day, Covenant’s attorney responded,
saying he “represent[s] Covenant Construction on this matter” and that all future
correspondence should be directed to him.
After the Miller Act notice was delivered to Covenant’s attorney as instructed,
he emailed the Funds’ counsel to confirm that he received the documents and had
3 The district court correctly concluded that the Funds have standing to bring
this suit. See United States ex rel. Sherman v. Carter, 353 U.S. 210, 214 (1957) (“The
trustees had the sole power to demand and enforce prompt payment of employer
contributions,” consistent with the trust agreement, and thus “have an even better
right to sue on the bond.”); United States ex rel. Int’l Bhd. of Elec. Workers, Loc.
Union 692 v. Hartford Fire Ins. Co., 809 F. Supp. 523, 526 (E.D. Mich. 1992)
(“Under ERISA, the trustees not only have a contractual right to enforce payment
of contributions to trust funds, they have a statutory right and duty to do so. They
are not dependent on an assignment, either actual or constructive.”); 29 U.S.C.
§§ 1104(a), 1132 (obligating trustees, as fiduciaries of a multiemployer benefit plan
within the meaning of ERISA, to “discharge [their] duties with respect to a plan”
and empowering them to bring suit on behalf of beneficiaries to recover any unpaid
contributions).

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“stamped the receipt date on each page to confirm [they] received them [on] Sept.
16, 2021.” He also requested “a detailed breakdown of the amounts claimed” and
supporting documentation to evaluate the claim, which the Funds provided to him.
Covenant and its surety, however, never paid the delinquent contributions
from their payment bond on behalf of Calacci. As a result, the Funds filed suit under
the Miller Act to collect from Defendants the unpaid contributions plus liquidated
damages, interest, costs, and reasonable attorneys’ fees. Defendants and the Funds
filed cross-motions for summary judgment. The district court denied Defendants’
motion, granted the Funds’ motion, and entered judgment in the Funds’ favor.
Defendants now appeal.
II.
“We review the district court’s resolution of cross-motions for summary
judgment de novo.” Owners Ins. Co. v. Fid. & Deposit Co. of Md., 41 F.4th 956,
958 (8th Cir. 2022) (citation omitted). Defendants argue that the district court erred
in determining that the Funds properly served notice on Covenant under the Miller
Act, in deciding that the notice was timely as to all 21 laborers on the project, and in
awarding the Funds liquidated damages and attorneys’ fees. We address each
argument in turn.
A.
Under § 3133(b)(2) of the Miller Act, “[a] person having a direct contractual
relationship with a subcontractor but no contractual relationship, express or implied,
with the contractor furnishing the payment bond may bring a civil action on the
payment bond on giving written notice to the contractor.” Written notice of a Miller
Act claim must be given “within 90 days from the date on which the person did or
performed the last of the labor or furnished or supplied the last of the material for
which the claim is made.” Id. Notice must be served “by any means that provides
written, third-party verification of delivery to the contractor at any place the

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contractor maintains an office or conducts business or at the contractor’s residence.”
§ 3133(b)(2)(A). The purpose of the notice provision is “to assure receipt of the
notice, not to make the described method mandatory so as to deny right of suit when
the required written notice within the specified time had actually been given and
received.” Fleisher Eng’g & Constr. Co. v. United States ex rel. Hallenbeck, 311
U.S. 15, 19 (1940). “Congress intended to provide a method which would afford
sufficient proof of service when receipt of the required written notice was not
shown.” Id.
Defendants claim “the Funds never mailed or delivered any Miller Act notice
to Covenant” because they sent it to Covenant’s attorney rather than to Covenant
directly. Defendants do not allege Covenant was unaware of the Miller Act notice.
Instead, they assert the Funds were noncompliant with the requirements of
§ 3133(b)(2) and that Covenant’s attorney was neither “the contractor” nor expressly
authorized to accept service on Covenant’s behalf. Defendants further contend that
the district court erroneously concluded that “[t]hrough his correspondence with the
Funds’ counsel, Covenant’s attorney held out he had authority to accept the Miller
Act notices on Covenant’s behalf. He did nothing to recant this apparent authority.”
It is undisputed that Defendants received the Funds’ written Miller Act notice,
which lessens the need for strict adherence to the method of service under
§ 3133(b)(2), because the purpose of the notice provision is ensuring receipt. See
Fleisher, 311 U.S. at 18–19. Covenant’s attorney went out of his way to confirm that
he received the written notice on behalf of both Covenant and North American,
going so far as to time-stamp the date of receipt. Cf. United States ex rel. Am.
Radiator & Standard Sanitary Corp. v. Nw. Eng’g Co., 122 F.2d 600, 602 (1941)
(holding that merely sending invoices to a subcontractor does not put the contractor
on notice of the Miller Act claim and could not substitute as actual written notice to
the contractor). The challenge raised here is limited to whether—as a matter of law—
the notice complied with § 3133(b)(2) when it was sent to Covenant’s attorney,
rather than directly to Covenant or an authorized agent of Covenant.

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We conclude that the Funds sufficiently complied with the Miller Act.
Defendants analogize to service of legal documents, but the initial notice
requirement under § 3133(b)(2) is distinct from service of a civil summons or legal
process. As Defendants acknowledge, it is a jurisdictional “condition precedent” to
filing a lawsuit under the Miller Act, not a method-of-service requirement. See Am.
Radiator, 122 F.2d at 602. Not only was the mailed notice sufficient because
Covenant had “actually been given and received” it, see Fleisher, 311 U.S. at 19, but
Covenant’s attorney intervened, represented that he had authority on behalf of
Covenant to receive notice, and instructed the Funds to communicate directly with
him. The district court did not err in concluding that notice was properly provided.
B.
Defendants next argue that the Funds’ written notice was untimely. The last
day of labor on the VA project was June 18, 2021, and the Miller Act notice was
received and time-stamped by Covenant’s attorney on September 16, 2021. The
notice alleged delinquent benefit contributions based on the collective carpentry
labor of 21 Calacci employees between April 20, 2020, through June 18, 2021.
According to Defendants, however, the 90-day deadline for timely filing
notice under § 3133(b)(2) is to be judged individually for each laborer. And, if that
is correct, only three of the 21 Calacci union employees’ last day of labor on the VA
project falls within the 90-day window. Defendants contend that the Funds can
recover damages for only those three employees.
As noted above, Miller Act notice must be provided “within 90 days from the
date on which the person did or performed the last of the labor or furnished or
supplied the last of the material for which the claim is made.” § 3133(b)(2). The
Funds’ claim against the bond is based on damages “common to the entire
membership” of the Fund participants and “shared by all in equal degree.” See U.S.
ex rel. United Bhd. of Carpenters & Joiners Loc. Union No. 2028 v. Woerfel Corp.,
545 F.2d 1148, 1152 (8th Cir. 1976) (observing that there, relief sought was neither).

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And while the statute references the last date of labor based on a singular “person,”
it is reasonable to conclude that laborers collectively provide labor for purposes of
fringe-benefit fund contributions. See Hartford Fire, 809 F. Supp. at 526. In this
sense, a claim for fund contributions—a collective claim—is distinguishable from a
claim for individual wages, which are “peculiar to the individual member
concerned.” Woerfel, 545 F.2d at 1152 (citation omitted).
Notice of delinquent fund contributions, therefore, must be given within 90
days of the last day of the collective labor on the VA project. And as such, the Funds’
“‘claim’ may cover more than a single employee or incident—it may cover several
employees over a period of time.” Hartford Fire, 809 F. Supp. at 526. So long as
notice “was made within 90 days after the last of the labor was performed for that
‘claim’”—as occurred here—it is timely. Id. The district court did not err by
concluding that Plaintiffs timely filed their Miller Act notice within 90 days of the
last day of labor performed on the project and the Funds are thus entitled to the past-
due fringe-benefit contributions for all 21 laborers.
C.
Finally, Defendants contend that the court erred in awarding the Funds
liquidated damages and attorneys’ fees. Under the Miller Act, plaintiffs may recover
“the amount unpaid at the time [their] civil action is brought and may prosecute the
action to final execution and judgment for the amount due.” § 3133(b)(1).4 As we
have recognized, this statutory language does “not explicitly provide for the recovery
of attorneys’ fees or interest.” Owners, 41 F.4th at 959; see also F.D. Rich Co. v.
4 Before it was amended in 2002, “the Miller Act provided that a subcontractor
could sue on a payment bond after failing to receive payment for labor or material
and ‘prosecute said action to final execution and judgment for the sum or sums justly
due him.’” Owners Ins. Co. v. Fid. & Deposit Co. of Maryland, 41 F.4th 956, 959
(8th Cir. 2022) (emphasis added) (citing 40 U.S.C. § 270b(a) (2001)). The above
italicized language was amended to “the amount due,” see § 3133(b)(1), but that
“was not intended to work a substantive change.” Id. (citation omitted).

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United States ex rel. Indus. Lumber Co., 417 U.S. 116, 126 (1974) (determining that
the Miller Act does not “explicitly provide for an award of attorneys’ fees to a
successful plaintiff”); cf. 29 U.S.C. § 1132(g) (giving courts discretion to award
“reasonable attorney’s fees and costs” to fiduciaries in an action brought under
ERISA for the collection of delinquent benefit contributions). And, generally, “the
American Rule”—“that each party should bear the costs of its own legal
representation” and thus, attorney’s fees are not recoverable as damages absent an
express directive from Congress—applies to Miller Act claims. See F.D. Rich, 417
U.S. at 130–31.
We have, however, upheld an attorneys’ fee award on a claim similar to a
Miller Act claim, but brought under the Capehart Act, 42 U.S.C. § 1594a. There, the
claim was based on the express language in a bond contract between a subcontractor
and its supplier that attorneys’ fees were “part of the purchase price of the materials
and are sums justly due.” See D&L Const. Co. v. Triangle Elec. Supply Co., 332
F.2d 1009, 1012–13 (8th Cir. 1964); see also Owners, 41 F.4th at 959 (citing United
States ex rel. Maddux Supply Co. v. St. Paul Fire & Marine, Ins. Co., 86 F.3d 332,
336 (4th Cir. 1996) (per curiam) as a Miller Act case that presented similar attorneys’
fees questions); Sherman, 353 U.S. at 220–21 (upholding the award of attorneys’
fees and liquidated damages on a payment bond based on collective bargaining,
which obligated the supplier to make benefit contributions to the union’s trust fund
and, pursuant to the trust fund agreement, to pay any attorneys’ fees and costs
necessary to recover delinquent contributions).
Defendants do not dispute that the CBA obligated Calacci, as signatory
employer, to pay the Funds’ attorneys’ fees and liquidated damages in connection
with collection of benefits contributions owed to the Funds. Rather, they argue that
the CBA does not obligate them to pay the Funds’ attorneys’ fees or liquidated
damages from the payment bond because Covenant is not a signatory employer to
the CBA. Defendants contend that without an express agreement that Covenant
would use its payment bond to pay for the Funds’ attorneys’ fees and costs in the

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recovery of Calacci’s delinquent benefit contributions, the Miller Act does not
otherwise obligate Covenant to pay them.
Even assuming Covenant is not statutorily obligated to pay attorneys’ fees and
liquidated damages from its payment bond under the Miller Act, Calacci, as
signatory to the CBA and the supplier of labor, expressly agreed with the union and
its Funds to pay them. “The obligation of the surety and contractor includes amounts
owed by subcontractors to their suppliers.” Maddux, 86 F.3d at 334 (citation
omitted). As such, “[s]everal circuits have held . . . that interest and attorney’s fees
are recoverable if they are part of the contract between the subcontractor and
supplier.” Id. at 336 (collecting cases). Here, Calacci is obligated to pay attorneys’
fees and liquidated damages to the Funds under the terms of the CBA; and, by
subcontracting with Calacci, Covenant is liable for the amount due under that
obligation. See D&L, 332 F.2d at 1013. Defendants never allege that the terms of
their payment bond agreement reflect otherwise. Moreover, granting the recovery of
attorneys’ fees and liquidated damages from the payment bond compensates the
Funds in full for the “amount due” to them for their agreed-upon work on the VA
project, and is consistent with the purpose of the Miller Act. See § 3133(b)(1); D&L,
332 F.2d at 1012–13; see also Sherman, 353 U.S. at 216 (“The Miller Act . . . is
highly remedial in nature. It is 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.” (internal citations omitted) (quoting Clifford
F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107
(1944)).
We affirm the judgment of the district court.
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