Ramona Equip Rental v. Carolina Cas. Ins. Co.

In an action brought under the Miller Act regarding an open book account for the same government project, any ninety day notice of a claim will be considered timely to all deliveries made on the account so long as the notice is given within ninety days of the last delivery.

Ramona Equipment Rental, Inc. (“Ramona”) brought this action under the Miller Act against Carolina Casualty Insurance Company (“CCIC”), which was the surety of the Candelaria Corporation (“Candelaria”) which was the prime contractor on a federal construction project because a subcontractor of Candelaria, Otay Group, Inc., failed to pay for equipment that was rented. At trial CCIC argued that the ninety day notice Ramona was required to serve was untimely, and that Ramona failed to mitigate their damages. The district court denied CCIC’s argument regarding notice, but did find that Ramona failed to mitigate and limited any recovery to only invoices dated before June 10, 2008. The court ultimately entered judgment awarding Ramona $339,284.48 in damages, service charges and attorneys’ fees. CCIC filed this timely appeal arguing the district court erred regarding its ruling on the notice requirement and the final judgment amount. The Ninth Circuit held that a ninety-day notice is timely as to all of the deliveries if it is given within ninety days from the last delivery. Because Ramona did provide notice within ninety days of the last delivery, the notice was timely. The panel also held that the district court properly held that Ramon’s duty to mitigate damages arose four days after the termination of the contract. The district court is AFFIRMED.