{ "id": 279478, "name": "MQ CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. INTERCARGO INSURANCE COMPANY, Defendant-Appellant", "name_abbreviation": "MQ Construction Co. v. Intercargo Insurance", "decision_date": "2000-12-29", "docket_number": "No. 1-99-3424", "first_page": "673", "last_page": "686", "citations": [ { "type": "official", "cite": "318 Ill. App. 3d 673" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "255 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "119 Ill. App. 2d 23", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1584517 ], "weight": 5, "year": 1969, "pin_cites": [ { "page": "28" }, { "page": "28" }, { "page": "29" }, { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/119/0023-01" ] }, { "cite": "776 F.2d 962", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1516428 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "963-64" }, { "page": "964" } ], "opinion_index": 0, "case_paths": [ "/f2d/776/0962-01" ] }, { "cite": "337 F.2d 568", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 888596 ], "year": 1964, "pin_cites": [ { "page": "572-73" } ], "opinion_index": 0, "case_paths": [ "/f2d/337/0568-01" ] }, { "cite": "406 F.2d 790", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2117120 ], "weight": 5, "year": 1969, "pin_cites": [ { "page": "792" }, { "page": "793" }, { "page": "792" }, { "page": "793" } ], "opinion_index": 0, "case_paths": [ "/f2d/406/0790-01" ] }, { "cite": "585 N.E.2d 606", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "145 Ill. 2d 345", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596434 ], "year": 1991, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0345-01" ] }, { "cite": "473 N.E.2d 1287", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "105 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141386 ], "year": 1985, "pin_cites": [ { "page": "286-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0281-01" ] }, { "cite": "656 N.E.2d 1049", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "167 Ill. 2d 161", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222752 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "168" }, { "page": "168" }, { "page": "168-69" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0161-01" ] }, { "cite": "302 N.E.2d 131", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 1074", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345752 ], "year": 1973, "pin_cites": [ { "page": "1076" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/1074-01" ] }, { "cite": "491 N.E.2d 1269", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3449263 ], "year": 1986, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0621-01" ] }, { "cite": "666 N.E.2d 704", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 733", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150222 ], "year": 1996, "pin_cites": [ { "page": "742-43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0733-01" ] } ], "analysis": { "cardinality": 1027, "char_count": 32159, "ocr_confidence": 0.751, "pagerank": { "raw": 1.6126833254016464e-07, "percentile": 0.6858623803936059 }, "sha256": "87eff8482fbdceffd0e4f6fd71c0e682d7a176a5b9e0257ec65bc79febf8eaf9", "simhash": "1:1d9dfd7b96633dea", "word_count": 5240 }, "last_updated": "2023-07-14T16:02:38.722215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MQ CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. INTERCARGO INSURANCE COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nDefendant Intercargo Insurance Company, a surety on a public construction bond, appeals from an order of the circuit court entering judgment in favor of plaintiff MQ Construction Co., Inc., on plaintiffs claim against defendant\u2019s bond for money owed to plaintiff for certain construction work it performed on a public construction project. On appeal, defendant contends that the trial court erred in finding that December 12,1996, was the \u201clast day of work\u201d of plaintiff on the project for purposes of determining whether plaintiff filed a timely notice of its claim against defendant\u2019s bond as required by the Illinois Public Construction Bond Act (Bond Act) (30 ILCS 550/2 (West 1996)). For the reasons set forth below, we reverse.\nThe City of Chicago (City) hired Roadworks, Inc. (Roadworks), as the general contractor for a public works construction contract known as \u201cproject No. S \u2014 5\u2014020, 1995 Model Block Group 21 \u2014 A\u201d (project). Plaintiff entered into an \u201cagreement\u201d with Roadworks for certain work on the project, which included: \u201cType 4 curb removal; Type 4 curb replacement; 5\" PCC mainwalk; 5\" PCC for the disabled; 8\" PCC driveway; Type 3 curb removal; Type 3 curb replacement.\u201d Although a complete contract is not contained in the record, portions of the \u201cGeneral Conditions and Special Conditions\u201d for the City\u2019s project contract provided:\n\u201cThe Contractors shall not be entitled to demand or receive final payment until all the stipulations, provisions and conditions as set forth in the contract have been complied with, and the work has been accepted by the Commissioner, whereupon the City will, at the expiration of 30 calendar days after such completion and acceptance, pay the whole account of money due the contractor under the contract.\nThe acceptance by the Contractor of the final payment above mentioned shall operate as and shall be a release to the City from all claims or liability under this contract, or for any act or neglect of the city relating to or connected with this contract.\nHi * *\nContractor\u2019s Responsibility for Work\nThe Work shall be under the charge and care of the Contractor until final acceptance by the Commissioner, including all \u2018Punch List\u2019 work, unless otherwise specified in the Contract Documents.\nHi H\u00bb H*\nThe Work will not be considered as completed and accepted until a written notice from the Commissioner, confirming the Final Completion and acceptance of all Work, including \u2018Punch List\u2019 Work has been received by the Contractor.\u201d\nOn April 3, 1995, Roadworks, with defendant acting as surety, obtained a \u201cContractors\u2019s Performance Bond\u201d in which it agreed to be bound to the City for $783,989.55 for the work, labor, and materials used on the project. Between April 24, 1995, and May 12, 1995, plaintiff performed its work on the project pursuant to its agreement with Roadworks. On June 6, 1995, plaintiff sent an \u201cinvoice\u201d to Roadworks for \u201cfull and final payment\u201d pursuant to the agreement. The invoice itemized the work performed, listed the \u201ctotal\u201d for the work as $146,796.20, indicated that a previous payment had been made for $70,000, and demanded payment of $81,796.20.\nIn December 1996, plaintiff received a copy of a \u201cmemorandum\u201d and an accompanying \u201cPreliminary Punch List\u201d sent to Roadworks from the project director for the City. The document stated, in part: \u201cFinal payment shall be withheld until both preliminary and final punch list items are completed to the city\u2019s satisfaction.\u201d Items 1, 3 through 8, and 10 on the punch list required patching or replacing certain sections of sidewalk that plaintiff had originally constructed in April or May 1995, but which had been \u201cmarred after pouring and after the wet cement had cured, or which had cracked subsequent to installation.\u201d On December 12, plaintiff returned to the project site and performed the punch list items related to its work and did not perform any further work on the project after that date. Plaintiff did not issue an invoice to Roadworks for the work plaintiff performed on December 12.\nOn January 17, 1997, plaintiff filed an \u201cOriginal Contractor\u2019s Mechanic\u2019s Claim for Lien\u201d against the City and Roadworks to recover the balance of $81,796.20 for the work plaintiff performed in \u201cApril, May, and June\u201d 1995. On January 28, defendant received a copy of plaintiff\u2019s claim on defendant\u2019s bond for the project and requested that plaintiff complete a \u201cProof of Claim\u201d form and supply other documentation supporting plaintiffs claim. Plaintiff completed the \u201cProof of Claim,\u201d indicating on the form that it last furnished labor, materials, supplies, and services in connection with the claim on December 12, 1996.\nOn April 8, 1997, defendant denied liability for plaintiffs claim, stating that its investigation revealed that plaintiff \u201ccompleted its original contract work\u201d in June 1995 and that plaintiff\u2019s work in December 1996 was \u201ccorrective and cosmetic\u201d and did not extend the time that plaintiff was required to make a claim against the \u201ccontractor\u2019s bond.\u201d Because plaintiff had not filed a claim against the bond within 180 days of the completion of its work in June 1995, as required by section 2 of the Bond Act, defendant denied the claim.\nOn June 12, 1997, plaintiff filed a verified complaint for declaratory judgment, alleging that it provided labor and materials on December 12, 1996, to cure punch list deficiencies \u201cpursuant to its obligations to Roadworks,\u201d and that it properly filed a lien 36 days after the \u201clast item of work\u201d pursuant to the Bond Act. The complaint requested that the trial court declare that plaintiff was entitled to coverage under the \u201cContractor\u2019s Performance Bond\u201d and that defendant was obligated to provide coverage for plaintiffs loss pursuant to the terms of the bond.\nDefendant filed a section 2 \u2014 615 motion to dismiss the complaint (735 ILCS 5/2 \u2014 615 (West 1996)), arguing that plaintiff\u2019s case was inappropriate for declaratory relief because (1) plaintiff did not seek a determination of the construction of an ambiguous statute or contract provision, (2) plaintiff only sought the enforcement of a right \u201cafter the fact\u201d and not a declaration of present rights, and (3) section 2 of the Bond Act (30 ILCS 550/2 (West 1996)) \u201cprovided a specifically enacted and far more appropriate remedy than a declaratory judgment action.\u201d The parties entered an agreed order which, among other things, struck the prayer for relief of plaintiffs verified complaint for declaratory judgment and granted plaintiff leave to file an amended complaint.\nPlaintiff filed an amended complaint which contained allegations similar to those in the original complaint but requested judgment in plaintiffs favor in the amount of $81,796.20, plus interest. Defendant filed its answer to the amended complaint, denying all material allegations against it, and, as an affirmative defense, stated that the \u201ccorrective\u201d work performed by plaintiff on December 12, 1996, did not extend the time in which plaintiff was required to notify defendant of its claim and that plaintiffs claim was not filed within 180 days.\nThereafter, defendant filed a motion for summary judgment. Although defendant stated that there were no Illinois decisions interpreting the term \u201clast work\u201d in reference to the 180-day \u201cclaim notice\u201d requirement in the Bond Act, defendant argued that \u201clast work\u201d should be interpreted in a fashion similar to interpretations of similar terms in the federal Miller Act (40 U.S.C. \u00a7 270a (1994)) and the Illinois Mechanics Lien Act (770 ILCS 60/0.01 et seq. (West 1996)). Defendant argued that under those acts the applicable limitations period to demand payment under the acts begins on the day that the original work is completed on the project and subsequent \u201ccorrective\u201d work is not considered with respect to the limitations period. Defendant contended that the trial court, therefore, should adopt a similar interpretation for the Bond Act by finding that plaintiffs \u201clast work\u201d on the project occurred in June 1995, starting the 180-day limitations period under the Act, and that the \u201ccorrective\u201d work performed by plaintiff in December 1996 had no effect on this period.\nIn response to defendant\u2019s summary judgment motion, plaintiff argued that because it had received correspondence from the City indicating that final payment would not be made until all punch list items were completed, the City did not consider \u201cthe contract substantially performed.\u201d Plaintiff maintained that this created a genuine issue of material fact as to whether it had substantially performed its contract in a workmanlike manner in May 1995, entitling plaintiff to demand payment at that time, or in December 1996, after it had completed the punch fist items. Plaintiff also argued that defendant\u2019s position was not supported by Illinois law.\nThe trial court denied defendant\u2019s motion for summary judgment. On March 25, 1999, Michael Quaranta, plaintiffs owner, gave his deposition. He testified that he entered into a verbal agreement with the owner of Roadworks for the work on the project. Roadworks had agreed to pay plaintiff for the work plaintiff performed at the same rate that Roadworks was to be paid by the City for the same work. Plaintiff was not paid directly by the City, and Roadworks did make an informal partial payment of $70,000 to plaintiff. Quaranta was aware that Roadworks was no longer in business, and Quaranta did not send an invoice to Roadworks for the work performed on December 12, 1996, because contractors are typically not paid for punch list work. Quaranta admitted that the punch list work was \u201ccorrective\u201d in nature, but he did not consider the work on the contract as complete, entitling him to payment, until all the punch fist and corrective work had been completed.\nThe parties entered into a \u201cJoint Final Pre-Trial Memorandum\u201d containing a statement of stipulated facts which listed facts similar to those above. Both parties separately filed a memorandum in support of their position at trial. Plaintiff again argued that December 12, 1996, was its \u201clast day of work\u201d because it was required to complete punch list items to the City\u2019s satisfaction before receiving payment. In support of its argument, plaintiff cited to the portions of the \u201cGeneral Conditions and Special Conditions\u201d to the contract for the project, as stated above. Defendant argued in its memorandum that the Bond Act at issue, the federal Miller Act, and the Illinois Mechanics Lien Act all had similar purposes and contained \u201clast work\u201d-based limitations. Defendant argued, therefore, that the Bond Act should be interpreted similarly to the Miller Act and the Mechanics Lien Act, which interpreted \u201clast work\u201d to refer to the last original performance of the work as opposed to subsequent repairs.\nA bench trial on plaintiffs complaint was held on July 21, 1999. The parties did not present any witnesses. On August 19, 1999, the trial court issued a written order in favor of plaintiff, finding that \u201cthe date that the Plaintiff completed its work pursuant to the Contract between it and Roadworks [was] the controlling date for purposes of running the 180[-day] claim filing period.\u201d After quoting portions of \u201cThe City Contract,\u201d stating that final payment would not be received until the provisions of the contract had been complied with and final acceptance of the work, including punch list items, by the Commissioner, as stated above, the trial court stated:\n\u201cThe Court finds that the work performed by MQ on December 12, 1996, was pursuant to the provisions of the underlying contract which required full completion of all Punch List Work and corrective work before the terms of the contract were considered complied with. Hence it was reasonable for MQ to believe it has 180 days from December 12, 1996 to file a Claim if the amount sought was not paid. There is no evidence that the work on December 12, 1996, was other than pursuant to the original contract for work, [n]or is there any evidence to support a finding that the work was done to extend the time for filing the claim.\u201d\nOn September 2, the trial court awarded plaintiff $76,796.20, and this appeal followed.\nDefendant argues that the standard of review is de novo because the issue is one of statutory interpretation requiring a legal conclusion based on stipulated facts and documentary submissions. Plaintiff does not state a standard of review in its brief. It is well settled that \u201c[w]hen the only question before a court is the legal conclusion to be drawn from a given set of facts and the credibility of witnesses is not in issue, review of a trial court\u2019s holding is de novo.\u201d Stojkovich v. Monadnock Building, 281 Ill. App. 3d 733, 742-43, 666 N.E.2d 704 (1996). In the present case, because no witnesses testified at trial, the facts before the court were stipulated to by the parties, and the trial court made a legal conclusion based on these facts, the standard of review here is de novo.\nDefendant first contends that the Bond Act shares a \u201ccommon purpose\u201d with the federal Miller Act and the Illinois Mechanics Lien Act by protecting suppliers of labor and material. Defendant also contends that the limitations period in the Bond Act, requiring notice of a claim within 180 days from the date that the supplier performed its \u201clast work\u201d on the project, offers protection to project owners, sureties, and prime contractors similar to the limitations periods found in the Miller Act and the Mechanics Lien Act. Defendant argues that courts, when interpreting the \u201clast work\u201d-based notifications and limitations provisions in the Miller Act and Mechanics Lien Act, have disregarded the date of performance of \u201ccorrective work\u201d and instead looked to the \u201cdate of completion of the original performance of the contract for purposes of fixing the date of \u2018last work\u2019 \u201d to determine when the limitations period begins to run. Defendant maintains that because the Bond Act shares a common purpose with the Miller Act and Mechanics Lien Act, it should be interpreted in a similar fashion. According to defendant, plaintiff originally performed its contract work in May 1995, beginning the 180-day limitations period, and the work plaintiff performed in December 1996 was \u201ccorrective\u201d in nature and did not affect the limitations period. Defendant argues, therefore, that because plaintiff did not file a claim against defendant\u2019s bond within 180 days of its \u201clast work\u201d in May 1995, plaintiffs claim is untimely, and the trial court erred in entering judgment in favor of plaintiff.\nPlaintiff contends that defendant\u2019s argument ignores the specific contract provisions by which plaintiff was bound during the project. Specifically, plaintiff argues that irrespective of whether the work it performed on the project was \u201coriginal\u201d versus \u201ccorrective,\u201d this court must determine, as the trial court determined, whether plaintiff was performing work pursuant to its contract when evaluating which was the last date of work that plaintiff provided labor or materials. Plaintiff claims that the work it performed in December 1996 was \u201cat the request and demand of the City\u201d and \u201crequired\u201d by the contract because the relevant terms of the contract stated that the project would not be considered complete, and payment made, unless all punch fist items were performed and accepted by the Commissioner. Plaintiff maintains that its notice of its claim on the bond was timely because it was made within 180 days of the work performed in December 1996.\nDefendant counters that the contractual provisions relied on by plaintiff were included in the contract between the City, as owner of the project, and Roadworks and that plaintiff, as Roadworks\u2019 subcontractor, was not in contractual privity with the owner. Defendant contends, therefore, that plaintiffs reliance on the contractual provision that the work would not be considered complete nor payment made until all punch list items were finished is misplaced. Defendant maintains that plaintiff was not obligated to respond to a request or a demand from the City to complete punch fist work. Defendant reasserts that it is the nature of the work, i.e., whether corrective or original, that determines when the limitations period in section 2 of the Bond Act begins to run.\nSection 2 of the Bond Act provides, in relevant part:\n\u201cEvery person furnishing material or performing labor, either as an individual or as a sub-contractor for any contractor, with the State, or a political subdivision thereof where bond or letter of credit shall be executed as provided in this Act, shall have the right to sue on such bond or letter of credit in the name of the State *** for his use and benefit ***. Provided, however, that any person having a claim for labor, and material as aforesaid shall have no such right of action unless he shall have filed a verified notice of said claim with the officer, board, bureau or department awarding the contract, within 180 days after the date of the last item of work or the furnishing of the last item of materials, and shall have furnished a copy of such verified notice to the contractor within 10 days of the filing of the notice with the agency awarding the contract.\u201d (Emphasis added.) 30 ILCS 550/2 (West 1996).\nThe Bond Act provides an \u201calternate remedy to that afforded by the Mechanics\u2019 Lien Act\u201d and the Bond Act\u2019s purpose is to protect contractors and materialmen for whom no right of a mechanic\u2019s lien exists against a public body and to regulate claims against public monies. City of Chicago ex rel. Charles Equipment Co. v. United States Fidelity & Guaranty Co., 142 Ill. App. 3d 621, 626, 491 N.E.2d 1269 (1986). Similarly, the purpose of the Illinois Mechanics Lien Act is to protect those who in good faith furnish material or labor for the construction of buildings. Miller v. Reed, 13 Ill. App. 3d 1074, 1076, 302 N.E.2d 131 (1973).\nThe primary rule of statutory construction, to which all other rules are subordinate, is to ascertain and give effect to the intent and meaning of the legislature. In re Application for Judgment & Sale of Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161, 168, 656 N.E.2d 1049 (1995). Courts should look to the language of the statute as the best indication of legislative intent, giving the terms of the statute their ordinary meaning. In re Application for Judgment, 167 Ill. 2d at 168. Statutes should be construed in conjunction with other statutes addressing the same subject. In re Application for Judgment, 167 Ill. 2d at 168-69. We presume that statutes which relate to one subject are governed by one spirit and a single policy, and that the legislature intended the enactments to be consistent and harmonious. Even when apparent conflicts exist, we are to construe such statutes in harmony with each other, if reasonably possible. People v. Maya, 105 Ill. 2d 281, 286-87, 473 N.E.2d 1287 (1985). \u201cReference to another statute by analogy is also a common method of interpretation and has been relied upon by this court on many occasions.\u201d Waste Management of Illinois, Inc. v. Illinois Pollution Control Board, 145 Ill. 2d 345, 351, 585 N.E.2d 606 (1991). As a noted authority has explained: \u201cOn the basis of analogy the interpretation of a doubtful statute may be influenced by language of other statutes which are not specifically related, but which apply to similar persons, things, or relationships. By referring to other similar legislation, a court is able to learn the purpose and course of legislation in general, and by transposing the clear intent expressed in one or several statutes to a similar statute of doubtful meaning, the court not only is able to give effect to the probable intent of the legislature, but also to establish a more uniform and harmonious system of law.\u201d 2B N. Singer, Sutherland on Statutory Construction \u00a7 53.03, at 233 (5th ed. 1992).\nInitially, we note that the term \u201clast work,\u201d which is at issue here, is not defined in the Bond Act and that a review of the Bond Act indicates that the term is ambiguous and subject to more than one reasonable interpretation, as indicated by the arguments of the parties. We, therefore, find it appropriate to review other courts\u2019 interpretations of language in similar statutes in order to give effect to the intention of the legislature in enacting the Bond Act.\nThe parties primarily rely on cases addressing similar issues under the Miller Act and the Mechanics Lien Act, and we find those cases instructive on the issue here. In United States v. Andrews, 406 F.2d 790 (4th Cir. 1969), the Fourth Circuit Court of Appeals addressed a similar issue under the Miller Act, the federal equivalent to Illinois\u2019 Bond Act. In Andrews, the plaintiff supplied certain materials to a plumbing and fixtures subcontractor working on a government project. On October 17, 1966, the defendant general contractor informed the government that the plumbing subcontractor\u2019s work was complete, the government made an inspection finding the work acceptable except for a few deficiencies which were fixed immediately, and the government accepted the job and took possession of the premises. While subsequently visiting the site for an unrelated matter, an employee of the electrical subcontractor discovered \u201cby chance\u201d that two gate valves required under the contract between the defendant and the government had not been supplied or installed. The valves were ordered from the plaintiff, which delivered them on January 17, 1967. On January 25, the plaintiff sent the defendant a written notice claiming that the defendant was obligated to pay the plaintiff the plumbing subcontractor\u2019s unpaid balance for all materials supplied by the plaintiff for the project, including those delivered in 1966. Andrews, 406 F.2d at 792.\nThe Andrews court analyzed whether the January 25, 1967, notice from the plaintiff satisfied the 90-day limitations period of the Miller Act where the notice was received within 90 days of the delivery of the valves but not within 90 days of the last delivery of materials on October 19, 1966. The court stated that \u201c[u]nder the Miller Act a subcontractor may not recover on the bond unless he delivers materials or performs labor called for by the terms of the prime contract and also serves notice within ninety days after the date of such delivery or performance.\u201d (Emphasis omitted.) Andrews, 406 F.2d at 793. The court further stated that the applicable legal test is \u201cwhether the work was performed and the material supplied as a \u2018part of the original contract\u2019 or for the \u2018purpose of correcting defects, or making repairs following inspection of the project.\u2019 \u201d Andrews, 406 F.2d at 792, quoting United States ex rel. Austin v. Western Electric Co., 337 F.2d 568, 572-73 (9th Cir. 1964)). The Andrews court found that the installation of the two valves could not be characterized as a mere correction of a defect because the valves were called for under both the primary and subcontracts and were not delivered until January 17, 1967. The court further noted that \u201cthe contract was not completed until the valves were installed, and that their delivery in January [1967] is the critical date from which to measure the Miller Act limitation period.\u201d Andrews, 406 F.2d at 793.\nIn United States v. Continental Insurance Co., 776 F.2d 962, 963-64 (11th Cir. 1985), where the plaintiff subcontractor sought payment from the defendant surety, the Eleventh Circuit Court of Appeals stated: \u201cThe Miller Act requires that claims brought under it be made within one year \u2018after the day on which the last of the labor was performed or material was supplied ***\u2019 under the contract. [Citation.] In determining the last day that \u2018labor\u2019 was performed, repairs made on the original project are not taken into consideration.\u201d The Continental Insurance court reversed the district court\u2019s judgment in favor of the subcontractor on the defendant\u2019s bond because the plaintiff had not met its burden of proving by a preponderance of the evidence that the work performed on the job site did not involve repairs. Continental Insurance, 776 F.2d at 964.\nIn Miller Brothers Industrial Sheet Metal Corp. v. La Salle National Bank, 119 Ill. App. 2d 23, 255 N.E.2d 755 (1969), the Second District Appellate Court analyzed a similar issue under the Mechanics Lien Act. In Miller Brothers, a subcontractor performed the installation of a plate glass curtain wall. On November 1, 1966, the subcontractor submitted an application for payment which stated that all of the work had been completed, including \u201cchange orders,\u201d and was marked \u201cFinal\u201d in two places. Similar applications were subsequently made but never paid. The record indicated that the subcontractor sent three glazers to the jobsite on January 11, 1967, to \u201cre-set\u201d some gasket material on certain lights that had worked loose. No additional billing was submitted and the work was considered a part of the agreed contract price. On March 8, 1967, the subcontractor filed a lien with the office of the county recorder. Miller Brothers, 119 Ill. App. 2d at 28. The Miller Brothers court found that the trial court\u2019s determination, that the subcontractor had completed its work by November 1, 1966, within the meaning of the section of the Mechanics Lien Act requiring that a verified claim for hen be filed \u201cwithin four months after completion of the work,\u201d was not against the manifest weight of the evidence. Miller Brothers, 119 Ill. App. 2d at 28. The Miller Brothers court disagreed with the subcontractor\u2019s argument that the January 11 work was an \u201cintegral part of the original contract and that therefore its notice was filed within the time limit of the statute.\u201d 119 Ill. App. 2d at 29. The court found that the January 11 work was in the \u201cnature of maintenance of a completed job rather than the completion of the contract itself\u201d and that the work was to \u201ccorrect some malfunction.\u201d 119 Ill. App. 2d at 30.\nWe have found no cases addressing this particular issue under Illinois\u2019 Bond Act, and, thus, this is an issue of first impression. Because of the absence of Illinois authority and the similarity of the purposes of the Bond Act, the Miller Act and the Mechanics Lien Act, we believe that the term \u201clast work,\u201d as used in the Bond Act, should be interpreted in a manner similar to the nearly identical terms in the Miller Act and the Mechanics Lien Act. Under those Acts, as indicated in Andrews, Continental Insurance, and Miller Brothers, corrective or repair work is not considered in determining the date that a contractor supplied its \u201clast work\u201d on a project for purposes of calculating the limitations period for claims relating to that work. We find that the legislature\u2019s use of a similar term in the Bond Act suggests that the legislature also intended to exclude corrective or repair work when determining the date of \u201clast work\u201d under the Bond Act. Pursuant to the Bond Act, therefore, we must determine the date upon which plaintiff completed its original contract work on the project.\nThe issue here is made more difficult by the fact that the subcontract between plaintiff and Roadworks was oral, and there is little evidence in the record of the terms of that contract. The contractual language relied on by the trial court, in determining that the punch list items needed to be completed and accepted by the City before the contract would be considered complete, was found in the \u201cGeneral Conditions and Special Conditions\u201d in the City\u2019s project contract with Roadworks. There is no evidence that similar provisions were included in the subcontract between plaintiff and Roadworks or that the subcontract incorporated the conditions in the primary project contract. Additionally, the brief portions of the primary project contract that are included in the record do not indicate that all subcontractors were to be bound by the \u201cGeneral Conditions and Special Conditions\u201d in that contract.\nIn Continental Insurance, the court stated that the claimant had the burden of proving by a preponderance of the evidence that the work at issue was not repair work in order to be entitled to judgment. The record here, however, contains facts which support defendant\u2019s argument that plaintiff completed its original contract work in May 1995, as opposed to December 1996. Michael Quaranta, plaintiffs owner, testified regarding some of the terms of the oral subcontract between plaintiff and Roadworks, stating that Roadworks was to pay plaintiff at the same rate that Roadworks was to be paid by the City for the sidewalk and curb work on the project. Although Quaranta stated that he personally did not think that plaintiffs contract was complete until all punch fist items were performed, he did admit that plaintiffs work performed in December 1996 was \u201ccorrective\u201d in nature. Additionally, according to the stipulated facts in the pretrial memorandum entered into by the parties, plaintiff, in June 1995, sent an invoice to Roadworks demanding $81,796.20 as \u201cfull and final payment.\u201d This language is an indication, as it was in Miller Brothers, that plaintiff considered its contract work complete by June 1995. The invoice also reflected that defendant had already made a partial payment of $70,000 to plaintiff. Plaintiffs payment demand and receipt of the partial payment contradict its reliance on the language in the primary contract to support its argument that it believed it had to complete punch fist items before it could expect payment. The punch list work was not performed until approximately 18 months after plaintiff initially demanded \u201cfull and final payment.\u201d Although plaintiff was \u201ccarbon copied\u201d on the punch list memorandum, the list was sent by the City to Roadworks.\nThe record further shows that the work performed in December 1996 was merely corrective in nature. The work involved three of plaintiffs employees returning to the site to correct defects in the sidewalks and curbs that had been initially poured in May 1995. This repair work is similar to the \u201cre-setting\u201d work performed by the claimant in Miller Brothers, which the court in that case deemed mere maintenance of completed work. For example, plaintiffs workers, in the present case, filled in footprints on the sidewalks and corrected other defects. Plaintiffs employees completed the work in one day. The employees were not performing work that they had inadvertently missed or forgotten, similar to the missing valves in Andrews-, they were correcting prior work that had been marred. Additionally, plaintiff did not bill Roadworks for the work performed in December 1996. Quaranta testified that punch list work is typically not billed. The nature of the work in December 1996, therefore, also supports defendant\u2019s contention that the work was merely \u201ccorrective\u201d in nature and should not be considered in determining the date from which the 180-day limitations period under the Bond Act began to run.\nAlthough defendant has not contested that plaintiff in fact earned the amount sought in its amended complaint, we find that the purpose and the language of the Bond Act require our decision here. The trial court erred in merely relying on and applying the \u201cGeneral Conditions and Special Conditions\u201d in the primary contract to plaintiff without additional evidence that plaintiff was bound by the terms of that contract. The record supports defendant\u2019s argument that the 180-day limitations period under the Bond Act began to run on plaintiff s last day of work in May 1995, and plaintiffs claim notice in January 1997 against defendant\u2019s bond was, therefore, untimely.\nFor the reasons stated, we reverse the judgment of the circuit court.\nReversed.\nHALL, EJ., and CERDA, J., concur.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Riordan, Dashiell & Donnelly, Ltd., of Chicago (Paul A. Brocksmith, of counsel), for appellant.", "Paul Goodman, of Bruce B. Jackson & Associates, Ltd., of Chicago, for ap-pellee." ], "corrections": "", "head_matter": "MQ CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. INTERCARGO INSURANCE COMPANY, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201499\u20143424\nOpinion filed December 29, 2000.\nRiordan, Dashiell & Donnelly, Ltd., of Chicago (Paul A. Brocksmith, of counsel), for appellant.\nPaul Goodman, of Bruce B. Jackson & Associates, Ltd., of Chicago, for ap-pellee." }, "file_name": "0673-01", "first_page_order": 693, "last_page_order": 706 }