CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - THURSDAY, FEBRUARY 6, 2025

Construction Litigation Roundup: “You May Want an Intervention …”

Confused man looking down at money worried

A masonry supplier sought intervention in in an upstream subcontractor’s lawsuit against a payment bond surety for allegedly unpaid subcontract sums.

June 10, 2024
Daniel Lund III - Lexology

You may want an intervention … but you are not getting one!

So said a federal court in New Orleans to a masonry supplier seeking to intervene in in an upstream subcontractor’s lawsuit against a payment bond surety for allegedly unpaid subcontract sums.

It all seems so obvious: the masonry supplier indicates it is unpaid, and the subcontractor to which it supplied materials is saying the same thing and pursuing monies from the general contractor’s surety. Eventually, if the subcontractor prevails against the surety, monies ought to flow to the supplier – a set of facts lending itself to an intervention.

The federal district court disagreed, however. Referring to Federal Rule of Civil Procedure 24(a)(2) and prior United States Fifth Circuit Court of Appeals case law the topic, the court opined that the masonry supplier lacked an interest in the subcontractor’s potential recovery that was “related to the property or transaction that forms the basis of the controversy…an interest that is ‘direct, substantial, [and] legally protectable.’"

Mr. Lund may be contacted at daniel.lund@phelps.com


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