This actual notice, the plaintiff claims, is enough to satisfy the purpose of the notice requirement. The plaintiff further contends that Uniroyal is estopped from raising lack of written notice as a defense because when Uniroyal told Dave Kerr that it believed the Miller Act was inapplicable to this contract, Uniroyal "induced" him into not reducing to writing his oral representations. Finally, the plaintiff contends that because Uniroyal failed to obtain a bond or at least wait until the plaintiff was paid by PEI before paying PEI its retention, Uniroyal "negligently opened itself up" to the plaintiff's claim and cannot now raise the notice provision as a defense.
In support of these arguments, the plaintiff notes that although courts have strictly construed the ninety-day notice period, courts have relaxed the literal requirements of the Act regarding the form, content, and method of service of the notice. For example, in United States ex rel. Kelly-Mohrhusen Co. v. Merle A. Patnode Co., 457 F.2d 116, 117 (7th Cir. 1972), the Seventh Circuit held that the Act is satisfied when notice is served by regular, as opposed to registered, mail. See also United States ex rel. Hillsdale Rock Co. v. Cortelyou & Cole, Inc., 581 F.2d 239 (9th Cir. 1978) (notice provision satisfied when all parties received actual notice, within ninety-day period, by regular United States mail). The Seventh Circuit also held that the requirement that the notice state with "substantial accuracy" the name of the subcontractor was met, even though the letter omitted the subcontractor's name, because the omitted the subcontractor's name, because the omitted information was provided orally and, in any event, the general contractor knew the identity of the subcontractor. Patnode, 457 F.2d 116 at 117-19.
In addition, in United States ex rel. Greenwald Industrial Products Co. v. Barlows Commercial Construction Co., 567 F. Supp. 464 (D.D.C. 1983), the defendant owned two companies, Barlows Commercial Construction and Barlows Inc. The board of directors and shareholders of both companies were identical, the companies shared an office, and the defendant was president of both. Id. at 465. The plaintiff sent notice to Barlows Commercial Construction, instead of Barlows Inc. Nevertheless, "because the office to which [the notice] was sent and the personnel who received it were identical," the court concluded that such "actual notice" was sufficient to satisfy the requirements of the Miller Act, even though it was not in strict compliance with the statutory provisions. Id. at 467.
Finally, in Houston Fire & Casualty Insurance Co. v. United States ex rel. Trane Co., 217 F.2d 727, 729-30 (5th Cir. 1954), the court held that the plaintiff materialman's oral notice to the principal contractor, coupled with the contractor's written acknowledgment of this request in which he fully recognized the subcontractor's indebtedness, satisfied the notice provisions of the Miller Act. The court reasoned that notice in this case was more effective than if the plaintiff himself had sent a written notice that fully complied with the statutory requirements of "bringing home in writing to the principal contractor the requisite knowledge of the claim and debt." Id. at 730.
In all of these cases, however, there was some written notice or acknowledgment within the ninety-day statutory period, and a writing of some kind appears to be a requirement of the Act. See, e.g., Patnode, 457 F.2d at 119 ("'There exists a writing from which, in connection with oral testimony, it plainly appears that the nature and state of the indebtedness was brought home to the general contractor.'") (quoting Houston Fire & Casualty, 217 F.2d at 730). United States ex rel. Acme Transfer & Trucking Co. v. H.S. Kaiser, Inc., 270 F. Supp. 215 (E.D. Wis. 1967), supports this proposition. There the plaintiff talked to the Milwaukee representative of the defendant contractor within the ninety-day period and showed him the invoices sent to the subcontractor. The representative told him to file any claims with the general contractor at his office in Illinois. The plaintiff left no invoices with the Milwaukee representative. Furthermore, the first written demand or notice that was sent to the Illinois office were photocopies of the invoices; these copies, however, were mailed after the ninety-day period had expired. The court held that the plaintiff had not complied with the statutory notice requirement. The court reasoned that the requirement of a written notice was to allow the general contractor to withhold payment to the subcontractor in order to meet the subcontractor's obligations. The court further stated that
"the reason why the Miller Act conditions the rights of a person having 'no contractual relationship express or implied with the contractor furnishing said payment bond' upon the giving of proper notice . . . is readily understandable. It was assumed that such third parties will first endeavor to collect from the subcontractor with whom they have a contract relation. During a reasonable period, while these efforts are going forward, the contractor withholds the payments due the subcontractor. If he receives a third party claim within ninety days, he reserves appropriate amounts from monies otherwise owing to the subcontractor."
Id. at 217 (quoting United States ex rel. J.A. Edwards & Co. v. Thompson Constr. Corp., 273 F.2d 873, 875 (2d Cir. 1959), cert. denied, 362 U.S. 951, 4 L. Ed. 2d 869, 80 S. Ct. 864 (1960)). The court concluded that despite the Milwaukee representative's knowledge of the claim through the oral notice, the plaintiff had not satisfied the Act's requirement of some sort of written notice. See also United States ex rel. Davison v. York Elec. Constr. Co., 184 F. Supp. 520 (D.N.D. 1960) (notice provision not satisfied when, even if general contractor had admitted notice and knowledge of facts, plaintiff seller failed to give sufficient written notice; mailed invoices from subcontractor to contractor insufficient); United States ex rel. Bruce Co. v. Fraser Constr. Co., 87 F. Supp. 1 (W.D. Ark. 1949) (general contractor not estopped from raising lack of written notice as defense, even though he had actual notice of claim, since no cause of action arises under Act until valid notice given); United States ex rel. Kewaunee Mfg. Co. v. United States Guar. Co., 37 F. Supp. 561 (W.D.N.Y. 1939) (even though subcontractor instructed general contractor to retain money necessary to pay creditors of subcontractor, subcontractor's materialman that did not give notice to general contractor of claim until after expiration of ninety-day period could not maintain action on payment bond).
In addition, the plaintiff provides no support for its contention that Uniroyal somehow is estopped from asserting the notice defense because it "induced" Kerr into not reducing his claim to writing and because it "negligently opened itself up" to suit by not requiring PEI to post a payment bond. First, the plaintiff does not explain why Uniroyal's mere expression of its belief in the inapplicability of the Miller Act should excuse the plaintiff's failure to seek the advice of counsel.
Cf. United States ex rel. K & M Corp. v. A & M Gregos, Inc., 607 F.2d 44, 48 (3d Cir. 1979) (defendant not estopped to denying that it was first-tier subcontractor; plaintiff asserting estoppel must show more than that he was ignorant about some matter; he must show that party to be estopped misrepresented or wrongfully concealed material fact).
Furthermore, the plaintiff does not explain why Uniroyal's failure to obtain a payment bond (if indeed it had an obligation to do so) should excuse the plaintiff's own neglect in failing to reduce to writing Kerr's oral representations. Accordingly, this court holds that the plaintiff has failed to comply with the notice provisions of the Act and, therefore, is not entitled to maintain this action.
For the foregoing reasons, the court concludes that the contract in this case is not governed by the Miller Act, and even if it were, the plaintiff has not complied with the notice provision of the Act. Accordingly, the court dismisses the second amended complaint with prejudice.