Gerhold Concrete Co. v. St. Paul Fire & Marine Ins. Co., 269 Neb. 692

Summary

The Supreme Court of Nebraska held that a supplier could proceed against a payment bond without the statutory notice otherwise required because evidence supported an express or implied contractual relationship with the general contractor. The court affirmed the verdict against St. Paul, reversed dismissal of the supplier's contract claim against First Dakota, and remanded for a new trial on that claim. It also affirmed denial of prejudgment interest and upheld the trial court's evidentiary rulings.

Holdings

1. A supplier's express or implied contractual relationship with the general contractor, including evidence of a direct or implied promise to pay for unpaid materials, can excuse the supplier from the notice requirement in Neb. Rev. Stat. § 52-118.01. Gerhold presented sufficient evidence for a jury to find such a relationship.
2. The district court properly denied St. Paul's motion for a directed verdict because conflicting evidence permitted a jury to find that First Dakota orally agreed to pay Gerhold's unpaid invoices or otherwise had an express or implied contractual relationship with Gerhold.
3. The district court erred by directing a verdict for First Dakota because evidence that First Dakota promised to pay the May through July invoices in exchange for Gerhold's continued supply of concrete presented a jury question concerning formation of a specific oral contract.
4. Gerhold was not entitled to prejudgment interest because its claim was not liquidated: reasonable controversy existed both as to Gerhold's right to recover and the amount due.
5. The district court did not abuse its discretion by excluding the lien-waiver evidence or by restricting inquiry into claims Gerhold was no longer pursuing.

Questions Presented

1. Whether Gerhold's alleged contractual relationship with First Dakota, including an alleged oral promise to pay unpaid invoices, excused Gerhold from the four-month written-notice requirement under Neb. Rev. Stat. § 52-118.01.
2. Whether the evidence was sufficient to submit Gerhold's bond claim to the jury rather than direct a verdict for St. Paul.
3. Whether the evidence was sufficient to establish a factual question regarding formation of a contract between Gerhold and First Dakota.
4. Whether Gerhold was entitled to prejudgment interest.
5. Whether the district court abused its discretion by excluding evidence concerning a lien waiver and by restricting inquiry into allegedly inconsistent statements in pleadings or interrogatory answers.

Disposition

reversed_and_remanded