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WILLMAN CONSTRUCTION, INC. v. WESTCHESTER FIRE INSURANCE COMPANY

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Case Number: 
4:14-cv-04082 Search Pacer
ACE Group party(s): 
Opposing Party: 
Willman Construction, Inc.
Court Type: 
Federal
US District Court: 
Central District of Illinois
Date Filed: 
Sep 17 2014

NATURE OF ACTION

This is an action under the Miller Act (40 U.S.C. §3133) on Payment Bond No.
K08800625 issued September 25,2012 by Defendant Westchester Fire Insurance
Company. Exhibit 1. Said Bond was issued to Alacran Contracting, LLC (hereinafter
"Alacran"), Rockford, Illinois in the Penal Sum of $353,195.00 as surety to
subcontractors of Alacran who furnished labor or material in carrying out work under
Contract No. W52P1J-12-C-5037 to replace windows in Building 56 at Rock Island
Arsenal (hereinafter "RIA"), Rock Island, Illinois. Alacran was the general contractor
onRIA Contract W52P1J-12-C-5037. Plaintiff Willman Construction, Inc. (hereinafter
"Willman") was the subcontractor Alacran hired to purchase and install windows in
Building 56 pursuant to said Contract. Alacran has failed and refused to pay the
balance billed by and owed to Willman for said work in the amount of $86,448.40.

JURISDICTON

This Court has jurisdiction under 28 U.S.C. §3133(b)(3)(A). RIA lies within the
geographical boundaries of the State of Illinois. RIA is contiguous with Rock Island
County, Illinois and within the judicial district designated in 28 U.S.C. §93 as
encompassing the Central District of Illinois and the Rock Island Division thereof. The
amount in controversy is not a relevant jurisdictional consideration pursuant to 28
U.S.C. §3133(b)(3)(A).

VENUE

Venue lies within this Judicial District under 28 U.S.C. §3133(b)(3)(A).

RELIEF SOUGHT

In this action the United States ex rel. Willman Construction, Inc. seeks payment
in full of the sum of $86,448.40, with interest thereon as provided by law, plus costs and
attorney's fees pursuant to 28 U.S.C. §2412.

PARTIES

1. Willman Construction, Inc. is a corporation organized and existing under
the laws of the State of Iowa, with its principal place of business, or nerve center,
located at 1129 West 3rd Street, Davenport, Iowa. Willman is engaged in commercial
building construction, repair and renovation. At all times relevant Willman was a
subcontractor to Alacran (infra) on RIA Contract W52P1J-12-C-5037 to replace windows
in Building 56 at RIA, for an agreed price of $275,444.00.
2. Alacran Contracting, LLC is a limited liability company believed to be
organized and existing under the laws of the State of Illinois; with its principal place of
business and nerve center located at 309 Main Street, Rockford, Illinois; engaged in
commercial construction and renovation. At all times relevant Alacran was the general
contractor on RIA Contract No. W52P1J-12-C-5037 to replace windows in RIA Building
56 and the general contractor to Willman.

COUNT I

Breach Of Contract - Job No. A12-129
Replace Windows Building 56 Rock Island Arsenal
3. On or about September 19,2012, Alacran, as general contractor, entered
into a construction contract with the Garrison Contracting Branch at Rock Island
Arsenal, Rock Island, Illinois, to Replace Windows in Building 56 on RIA, pursuant to
Solicitation W52P1J-12-R-5017, dated June 25,2012, with Attachment 0001 Scope of
Work Plans dated December 21,2011 and Amendments 1 through 7 dated, respectively,
06/29/12,07/10/12, 07/12/12, 07/16/12,07/18/12, 07/19/12 and 07/24/12, as
referenced in Exhibit 2 attached. RIA is an instrumentality of the United States Army
exclusively owned by the Federal Government, located on an island on the Illinois side
of the Mississippi River, adjacent to Rock Island, Illinois and across from Davenport,
Iowa. Building 56 on RIA is a structure owned and operated by the United States
Army.
4. On October 25, 2012, Defendant Alacran entered into a Subcontract
Agreement (Exhibit 2; "the Subcontract") with Plaintiff Willman to remove the old
windows in RIA Building 56 and Replace them with new windows. The new windows
were to be specially manufactured to meet Federal/Army safety requirements for
withstanding explosive devices and gun fire.
5. The Subcontract (Exhibit 2) provides in pertinent parts:
a. The Alacran Job Number is A12-129;
b. The Agreed Subcontract price was $275,444.00, which includes
supplying and installing the new special order windows;
c. The Subcontract was signed on behalf of Alacran by Dai Bui, its
President, and on behalf of Willman by Mark Willman, President of Plaintiff.
6. The Subcontract (Exhibit 2) adopted and incorporated Exhibit A
Subcontract Letter Of Intent/Notice To Proceed (Exhibit 2) from Alacran to Willman,
receipt of which was acknowledged by Mark Willman, President of Plaintiff. Exhibit A
(Plaintiff's Exhibit 2 to this Complaint) provides in pertinent parts:
a. Article 13 (page 8) provides for Progress Payments to be made by
Alacran to Willman within ten (10) days after such payments were received by
Alacran from RIA;
b. Article 14 (page 9) provides for Final Payment, which was due
within forty (40) days after completion and acceptance of the work subject to
certain conditions set out in Article 14.1, which include receipt by Alacran of
final Payment from RIA.
7. Willman fully, timely and satisfactorily performed the Subcontract
(Exhibit 2) and all work thereunder was completed as of July 3,2013. Dana Johnson,
Senior Inspector for Public Works at RIA performed a final inspection of Willman's
work and accepted and approved the same without any qualifications, conditions or
reservations. Gary Koski, Director of Public Works at RIA confirmed that final Payment
for the window Replacement work on Building 56 performed by Willman, under the
Solicitation referenced in paragraph 3 of this Complaint, was made by RIA to Alacran
within 30 days, or less, of the final inspection and acceptance by Dana Johnson.
8. Alacran has failed and refused to make the Final Payment due under the
Subcontract to Willman. Willman billed Alacran and has been carrying $86,448.40 in
"aged" (unpaid), receivables due from Alacran for Job No. A12-129 for more than 90
days. Exhibit 3. By letter dated December 6,2013 (Exhibit 4), sent by Certified Mail,
Return Receipt Requested, to Dai Bui, President of Alacran, a demand was made for
Final Payment of the sum of $92,535.90 to Willman, which included $86,448.40 for Job
No. A12-129.
9. Since August 12, 2013 (per Article 14, page 9; Exhibit 2) the amount of
$86,448.40 has been due for Job No. A12-129, window Replacement in Building 56 at
RIA. Payment of said sum has not been made by Alacran to Willman. No response to
the Final Payment Demand Letter has been received, although the Letter was delivered
to and signed for by Alacran, on December 10,2013. Exhibit 4. Alacran has not
provided any reason or explanation for non-payment of the balance due under the
Subcontract. Alacran has not requested, or required, any additional information or
documentation from Willman, nor indicated in any manner that its failure and refusal
to pay the balance due under the Subcontract is because Willman did not fulfill any of
its obligations under the Subcontract. On December 31,2013, Dai Bui telephoned Mark
Willman and told him that Alacran intends to pay Willman Construction.
10. Alacran breached the Subcontract (Exhibit 2) by failing and refusing to
pay the balance due thereunder in the amount of $86,448.40.
11. By Notice dated April 28,2014 (Exhibit 1), Defendant Westchester was
informed that Alacran had failed and refused to pay the balance of $86,448.40 to
Willman for window Replacement in Building 56 on RIA. The Notice (Exhibit 1)
included a demand for payment in full by Defendant Westchester by June 2, 2014.
Defendant Westchester did not respond and no payment has been made.

WHEREFORE, Plaintiff Willman Construction, Inc. requests judgment against
Westchester Fire Insurance Company under the said Payment bond (Exhibit 1) in the
amount of $86,448.40, with interest thereon as provided by law, plus the costs of this
action and attorney's fees pursuant to 28 U.S.C. §2412.

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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