Nebraska Supremes find contracting parites waived public works notice requirement

Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692 Filed April 28, 2005. No. S-03-1064. Concrete supplier Gerhold sued the general contractor First Dakota and St. Paul the performance bonding company when First Dakota;'s subcontractor did not pay Gerhold for material used to build a public veterans home in Norfolk. A supplier cannot sue the bonding company under Neb. Rev. Stat. § 52-118 (Reissue 1998) for most public building projects.unless the supplier gives a notice to the general contractor. But if Gehold had a direct contractual relationship, express or implied, with First Dakota it would not have to give notice (Section 52-118.01.) Gerhold wanted the Court to hold that performance following almost any kind of agreemeent between it and First Dakota would be enough to relieve it from the 52-118.01 notice requirement. St. Paul argued Gerhold and First Dakota must have a specific contract to pay for supplies; and that none existed. The Language of § 52-118.01 are the same as in the Miller Act, 40 U.S.C.A. § 3133(b) (West 2005) (formerly 40 U.S.C.A. § 270b (2000)). The Supreme Court looks to "relevant" federal cases, hear that "Frye" evidence rule fans in the Legislature? The case most broadly interpreted interpreting laws similar to § 52-118.01, in Georgia allowed relief from notice where looking at the… (entire) course of contractual dealings between the contractor and supplier there was an express or implied contractual relationship…a subcontractor would have relieve from giving actual or constructive notice of a claim despite the absence of a direct contract or promise of payment. After several paragraphs of discussing interesting cases ( a good moot court technique) the Court holds that Gerold concrete wins no matter how the Court interprets § 52-118.01 . Because Gerhold presented evidence that would allow a jury to find an express or implied contractual relationship between Gerhold and First Dakota, a jury could reasonably find that First Dakota had actual notice of the unpaid invoices and orally contracted to pay them. the district court did not err when it overruled St. Paul’s directed verdict motion. Livingston v. Metropolitan Util. Dist., ante p. 301, 692 N.W.2d 475 (2005). CROSS-APPEAL Dismissal of Contract Against First Dakota The District Court dismissed Gerhold's contract action against First Dakota, and Gerhold also won a reversal on this. Gerhold offered evidence that a representative of First Dakota, in direct response to an inquiry about Gerhold's May through July 1999 invoices, told Gerhold to “keep that concrete coming, and First Dakota, don’t worry about it, First Dakota will take care of it.” Gerhold then agreed to continue providing concrete. The court finds this was not an agreement to agree, rather the jury could find that a specific oral contract had been formed under which First Dakota would pay for four past due monthly invoices in exchange for Gerhold’s continuing to provide concrete. Viking Broadcasting Corp. v. Snell Publishing Co., 243 Neb. 92, 497 N.W.2d 383 (1993). Prejudgment Interest The Court denied Gerhold's claim for prejudgment interest as it was an unliquidated claim, that is one disputed as to the claim or amount. Davis v. Davis, 265 Neb. 790, 660 N.W.2d 162 (2003). The District Court refused to admit a Lien Waiver between Gerhold and one of First Dakota's subcontractor for $70000, according to gen. contractor First Dakota's offer of proof.. Stat. §§ 27-401 and 27-403 (Reissue 1995) . Tthe trial court’s decision will not be reversed absent an abuse of discretion. Snyder v. EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000).