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Uniroyal Inc. v. Epstein

June 16, 1970

UNIROYAL, INC., PETITIONER,
v.
A. EPSTEIN AND SONS, INC., RESPONDENT-APPELLANT, GEORGE A. FULLER & COMPANY, INC., ADDITIONAL RESPONDENT-APPELLEE



Castle, Senior Circuit Judge, and Fairchild and Kerner, Circuit Judges.

Author: Kerner

KERNER, Circuit Judge.

The sole issue involved in this appeal is whether a contract between the general contractor, A. Epstein and Sons, Inc., (appellant-Epstein) and the subcontractor, George A. Fuller and Company, Inc., (appellee-Fuller) required the subcontractor to participate in an arbitration proceeding between the owner, Uniroyal, Inc., (Uniroyal) and the contractor to arbitrate the owner's claim for damages arising out of an alleged failure of performance by the subcontractor. The trial court held that the contract between the contractor and the subcontractor did not require that the subcontractor be made a party to the arbitration proceeding between the owner and the contractor. We disagree and reverse and remand.

In September of 1952 Uniroyal awarded a contract to Epstein for the construction of an office building and warehouse in Vernon, California. Previous to the finalization date of this contract -- March 12, 1953 -- Epstein entered into a subcontract with Fuller. (January 12, 1953) The contract between Epstein and Fuller provided in relevant part:

Section 5. The Contractor and Subcontractor Agree to be bound by the terms of the Agreement, the General Conditions, Drawings and Specifications as far as applicable to this subcontract, and also by the following provisions:

The Subcontractor agrees:

(a) To be bound to the Contractor by the terms of the Agreement, General Conditions, Drawings and Specifications, and to assume toward him all the obligations and responsibilities that he, by those documents, assumes toward the Owner.

The Contractor agrees:

(d) To be bound to the Subcontractor by all the obligations that the Owner assumes to the Contractor under the Agreement, General Conditions, Drawings and Specifications, and by all the provisions thereof according remedies and redress to the Contractor from the Owner.

The Contractor and the Subcontractor agree that:

(o) In the matter of arbitration, their rights and obligations and all procedure shall be analogous to those set forth in this Contract.

The following provisions are part of a document entitled "GENERAL CONDITIONS OF THE CONTRACT" which was incorporated by reference into the subcontract:

20. Correction of work after final payment:

Neither the final certificate nor payment nor any provision in the Contract Documents shall relieve the Contractor of responsibility for faulty materials or workmanship and, unless otherwise specified, he shall remedy any defects due thereto and pay for any damage to the other work resulting therefrom, which shall appear within a period of one year from the date of substantial completion. The Owner shall give notice of observed defects with ...


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