                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                      July 25, 2003

                      __________________________           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-40825
                      __________________________

WEEKS MARINE, INC.,
                                                 Plaintiff-Appellant,

                                versus

FIREMAN’S FUND INSURANCE COMPANY
                                                   Defendant-Appellee.

       ___________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
       ___________________________________________________

Before JOLLY, WIENER, and, BARKSDALE, Circuit Judges.

WIENER, Circuit Judge:

     Plaintiff-Appellant Weeks Marine, Inc.(“Weeks”) appeals the

district court’s order denying its motion for summary judgment and

granting Defendant-Appellee Fireman’s Fund Insurance Company’s

(“FFIC”) motion for summary judgment. We reverse and remand for

entry of judgment in favor of Weeks.

                      I. FACTS AND PROCEEDINGS

     This surety contract dispute arises from dredging work that

Weeks Marine completed for now-bankrupt shipbuilder Friede Goldman

Offshore Texas, L.P. (“Friede Goldman”). In April 1998, Petrodrill

Construction, Inc. (“Petrodrill”) contracted with Friede Goldman

(“the shipbuilding contract”) for the construction of a semi-

submersible drilling vessel ( “Hull 1829”). In conjunction with the
shipbuilding   contract,   FFIC   issued   an   $84   million   Labor   and

Material Payment Bond (“the bond”) to Friede Goldman. Under the

terms of the bond, FFIC as surety and Friede Goldman as principal

are “held and firmly bound unto Petrodrill Construction” as owner

and obligee, for “the use and benefits of claimants.” A “claimant”

is defined in the bond as

     one having a direct contract with the Principal or with
     a Subcontractor of the Principal for labor, material, or
     both, used or reasonably required for use in the
     performance of the Contract, labor and material being
     construed to include that part of water, gas, power,
     light, heat, oil, gasoline, telephone service or rental
     of equipment directly applicable to the Contract.


     Friede Goldman began construction of Hull 1829 at its shipyard

in Pascagoula, Mississippi but eventually elected to complete

construction at another shipyard in Orange, Texas. The parties

vigorously dispute the cause of the move: FFIC maintains that

Friede Goldman merely wanted to “keep that [Texas] yard busy”;

Weeks asserts that the move was “necessary,” but offers no further

explanation.     It   is   undisputed,     however,   that   all   parties

(including FFIC) expressly approved the move.         In fact, Petrodrill

and Friede Goldman agreed to a $3 million increase in the contract

price, and FFIC consented to a corresponding increase in the amount

of the bond.   These modifications were memorialized in “Amendment

No. 2” to the shipbuilding contract.

     In connection with the move, Friede Goldman subcontracted with

Weeks to dredge a slip extension at the Texas shipyard.             Weeks


                                   2
completed the dredging work and submitted an invoice to Friede

Goldman in the amount of $654,671.          To date, Weeks has not been

paid for the dredging work; Friede Goldman filed for Chapter 11

bankruptcy protection several months after Weeks completed the

dredging and is not a party to this suit.

      Shortly after Friede Goldman filed for bankruptcy protection,

Weeks filed suit against FFIC, invoking diversity jurisdiction and

alleging that FFIC, as surety, is liable for the “labor performed

and materials furnished” to Friede Goldman in connection with its

performance of the shipbuilding contract.           FFIC denied liability

and the parties filed cross-motions for summary judgment. The

district court granted FFIC’s motion, concluding that “making FFIC

pay   Weeks   would   not   serve   the   Bond’s   overriding   purpose   of

preventing the attachment of liens to Petrodrill’s new vessel.”

Weeks now appeals the denial of its motion and the grant of FFIC’s

motion.

                               II. ANALYSIS

A.    Standard of Review

      We review a grant of summary judgment de novo, applying the

same standard as the district court.1              A motion for summary

judgment is properly granted only if there is no genuine issue as




      1
       Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).

                                      3
to any material fact.2     An issue is material if its resolution

could affect the outcome of the action.3      In deciding whether a

fact issue has been created, we view the facts and the inferences

to be drawn therefrom in the light most favorable to the nonmoving

party.4

B.   Merits

     The sole issue presented in this appeal is whether Weeks’s

dredging of a slip extension at Friede Goldman’s Orange shipyard is

“labor” “used or reasonably required for use” in building Hull

1829. The construction of an unambiguous surety agreement is a

question of law.5     Surety agreements, like other contracts, are

“interpreted to ascertain the obligations intended by the parties,

gathered from the instrument as a whole.”6       The liability of a

surety is determined by the language of the bond.7     When, as here,


     2
       Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
     3
         Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
     4
       See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
     5
       Augusta Court Co-Owners’ Assoc. v. Levin, Roth & Kasner,
P.C., 971 S.W.2d 119, 123 (Tex. App.—Houston[14th Dist.] 1998, pet.
denied).
     6
       G.H. Bass & Co. v. Dalsan Props.—Abilene, 885 S.W.2d 572,
576 (Tex. App.—Dallas 1994, no writ).
     7
       Augusta Court, 971 S.W.2d at 123; see also DEUTSCH, KERRIGAN &
STILES, CONSTRUCTION INDUSTRY INSURANCE HANDBOOK § 16.2, at 267 (1991)
(explaining that “[c]onventional bonds are private agreements
governed by general principles applicable to any private or
commercial contract” and noting that “[t]he rights and obligations

                                  4
the surety agreement is related to another contract, the two

instruments   must    be   read   together    to   determine      the   parties’

intent.8

     With these general rules of contract interpretation in mind,

our analysis begins with the written terms of both the shipbuilding

contract and the payment bond.           The shipbuilding contract called

for Friede Goldman to construct Hull 1829 for Petrodrill and

perform all associated engineering, launching, and testing of the

completed   vessel.    This     contract    defines    “materials”      as   “all

material and supplies, including without limitation all machinery,

equipment, outfittings and spare parts...to the extent that same

have been appropriated to, or incorporated in, the Vessel.”                    The

shipbuilding contract does not define “labor.”

     The bond prescribes the obligations of FFIC.               The bond states

expressly   that   FFIC    is   liable     only   if   Friede    Goldman     fails

“promptly [to] make payment to all claimants” “for all labor and

material used or reasonably required for use in the performance of

the Contract.”     As noted earlier, the term “claimants” is defined

in the bond, which also defines “labor and material” to include

“water, gas, power, light, heat, oil, gasoline, telephone service

or rental of equipment directly applicable to the Contract.”



of the parties to a conventional bond are thus determined by the
terms of the bond”).
     8
       Arceneaux v. Price, 468 S.W.2d 473, 474 (Tex. App.—Austin
1971, no writ).

                                      5
       Even though they arrive at widely varying interpretations,

both   parties   assert   that   the   terms   of   these   agreements   are

unambiguous.     FFIC argues that the dredging work is not covered

under the bond because Weeks did not provide “materials” that were

incorporated in the vessel but undertook a capital improvement to

Friede Goldman’s shipyard.       Weeks agrees that the dredging was not

“materials” as defined in the shipbuilding contract, but insists

that the work was “labor” “used” in the construction of the vessel.

Weeks asserts that it qualifies as a “claimant” under the bond

because (1) it had a direct contract with Friede Goldman; (2) it

provided “labor”; and (3) the labor was used in the performance of

the shipbuilding contract.

       Our resolution of this contract dispute rests on the plain

language of the bond and the uncontroverted record evidence.              We

have seen that, under the bond, a “claimant” is “one having a

direct contract with the Principal [Friede Goldman]...for labor,

materials or both, used or reasonably required for use in the

performance” of the shipbuilding contract. The parties do not

dispute that Weeks had a direct contract with Friede Goldman or

that Weeks provided “labor.”      Rather, FFIC contends that the labor

Weeks provided was not used “in the performance of the contract.”

For at least three reasons, we disagree.

       First, in support of summary judgment, Weeks submitted the

affidavit of Friede Goldman officer John Haley who stated that

“[t]he labor and materials provided by Weeks” were “required by

                                       6
[Friede Goldman] for the performance and completion of Hull 1829.”

FFIC submitted no contradictory evidence on this crucial point.9

Second, FFIC itself acknowledged (in a letter to Weeks’s counsel

denying the claim) that the dredging was “required in order to

fulfill   [Friede   Goldman]’s      obligation    under   the    [Petrodrill]

contract.”    Third,   and   most   importantly,    all   of    the       parties,

including FFIC, expressly contemplated the move before it took

place, explicitly acceded to it, and increased the purchase price

and bond accordingly, as documented in Amendment No. 2.                    Whether

the move was necessary, or even prudent, is irrelevant; it was

unquestionably made “in performance of the contract.”

     Finding little support in the express terms of the bond, FFIC

relies on cases arising under the Miller Act and analogous state

statutes to    support   its   argument   that     dredging     is    a    capital

improvement and is not encompassed by a standard labor and material

bond. Under these cases, “material” includes “things which will be

incorporated into the project itself, such as steel beams, brick,

window frames, flooring and roofing.”10          “Materials” also includes

products that are not ultimately integrated into the project, but

     9
       The evidence FFIC submitted in opposition to Week’s motion
and in support of its own motion for summary judgment included
copies of the shipbuilding contracts and payment bonds; a letter
from FFIC adjuster Fred Applewhite instructing Weeks’s counsel on
the procedure for filing claims; a letter and completed proof of
claim from Weeks’s counsel to Applewhite; and the affidavit of
Applewhite.
     10
       Sunbelt Pipe Corp. v. United States Fid. & Guar. Co., 785
F.2d 468, 470 (4th Cir. 1986).

                                      7
that are “reasonably expected to be consumed, or substantially

consumed,       in   the   performance         of    the    work.”11       Thus,   capital

equipment,       including     items      that       can    be   removed    and    used   on

subsequent projects, are not “materials”; only those consumable

items     that    will     “have    no    utility      or    economic      value   to     the

contractor after the completion of the work” are covered under

statutory bonds as “materials.”12

     FFIC’s reliance on these authorities is misplaced for several

reasons. First, and most importantly, Weeks is seeking payment for

“labor,” not “materials.”               Weeks agrees that the pipes, tools, and

heavy machinery used to dredge the slip are not “materials” covered

by the bond; Weeks only seeks payment for labor, and then only

labor that was “used or reasonably required for use” in Friede

Goldman’s        performance       of    the       shipbuilding     contract.      Perhaps

understandably, FFIC largely ignores this fundamental distinction.13

     Second, even if we were to accept FFIC’s capital-improvement

argument, the competent summary judgment evidence reveals that

Weeks’s dredging was not a capital improvement to Friede Goldman’s

     11
          Id.
     12
          Id.
     13
       FFIC asserts summarily that this “difference is irrelevant”
and notes that “[w]hether the capital improvement was something
that was created by labor . . . or a material, is irrelevant.” This
argument is unavailing for two reasons. First, the bond itself does
distinguish between labor and materials, listing each as a separate
qualification (“labor, material, or both”). Second, all of the case
law that FFIC cites involves equipment and other tangible materials
or repairs to such equipment.

                                               8
shipyard. In a supplemental affidavit, Friede Goldman officer John

Haley stated that the slip at issue began to fill with silt within

ten months following Weeks’s dredging.                Haley further stated that

the slip will “likely have to be dredged again” if Friede Goldman

undertakes a project of similar scale.                       Thus, Weeks’s summary

judgment evidence reflects that the dredging to extend the existing

slip was largely “consumed” during the construction of Hull 1829

and would not likely last more than one year.14

       The only evidence that FFIC proffered in support of its

argument is the affidavit of FFIC claims adjuster Fred Applewhite,

who stated conclusionally that “[m]aking a slip at a shipyard

bigger by constructing a slip extension...is a capital improvement

to [Friede Goldman]’s yard and clearly of a nature as to be

available for use...for all of [Friede Goldman]’s projects.”                      On

close       examination,    however,   it       is   obvious    that    Applewhite’s

affidavit is merely a reiteration of FFIC’s legal argument, i.e.,

that        dredging   is   always     a    capital      improvement.      Notably,

Applewhite’s affidavit is bereft of any explanation or reasoning as

to how he reached this bald conclusion. It never even indicates

that    he     personally    inspected         the   slip.    “[S]uch    conclusory,

unsupported assertions are insufficient to defeat a motion for



       14
       See, e.g., Seligman v. Comm’r, 796 F.2d 116, 119 (5th Cir.
1986) (noting that “one year rule of thumb” is “the prominent, if
not predominant characteristic of a capital item” under Tax Code)
(internal quotations omitted).

                                           9
summary judgment.”15

     The litany of cases that FFIC cites in support of its argument

is equally unpersuasive. All these cases stand for the undisputed

proposition   that    the   cost    of    capital   equipment     that   is   not

“substantially consumed” during performance of a contract is not

recoverable under a typical Miller Act payment bond.16 As we

explained,    these   cases   are    inapposite     for   three    alternative

reasons: (1) A cause of action under the Miller                    Act is not

congruent with a claim under the particular language of a tailor-

made bond; (2) Weeks is seeking to recover only for labor, not

materials; and (3) the dredging at issue was, according to the

uncontradicted statement of Friede Goldman officer John Haley,

“substantially consumed” in the construction of Hull 1829.                     We

again emphasize that Weeks, unlike the suppliers in the cases that

FFIC cites, does not seek payment for pipes, machinery, tools, or


     15
       Marshall v. E. Carroll Parish Hosp. Serv. Dist., 134 F.3d
319, 324 (5th Cir. 1998).
     16
        Sunbelt Pipe, 785 F.2d at 471 (“Since Sunbelt had no
reasonable expectation that the pipe would be consumed in the
performance of the contract, it is not a supplier of material
within the meaning of the statute or of the bond.”); Transamerica
Premier Ins. Co. v. Ober, 894 F. Supp. 471, 483 (D.Me. 1995)(“It is
clear under the statute and case law that subcontractors and
suppliers may not recover under a Miller Act payment bond for
losses sustained to ‘capital equipment,’” i.e., “any thing which
may reasonably be expected to be removed by the contractor and used
in subsequent jobs”) (internal quotations omitted); Ibex Indus. v.
Coast Line Waterproofing, 563 F. Supp. 1142, 1145-46 (D.D.C. 1983)
(“Plaintiff cannot recover costs under the Miller Act for equipment
that was not ‘substantially consumed’ during the construction
project.”).

                                         10
equipment     of   any   kind.   The    uncontroverted   record   evidence

conclusively establishes that Weeks provided labor that was “used”

in performance of the shipbuilding contract.        The bond, drafted by

FFIC, requires no more.

                             III. Conclusion

     For the foregoing reasons, we reverse and remand for entry of

judgment in favor of Weeks in the principal amount of $654,671,

together with any and all appropriate ancillary items, such as pre-

and post-judgment interest and costs, including attorney’s fees, if

applicable.

REVERSED and REMANDED with instructions.




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