## Facts

- A prime contractor, Triangle General Contractors, Inc., was awarded a Maryland state contract to build a public school project and, under Maryland’s Little Miller Act, was required to furnish a payment bond for the protection of laborers and material suppliers.
- United Pacific Insurance Company issued the statutory payment bond as surety for Triangle.
- Sain & Son Contractors, Inc., a subcontractor, bought roofing and other building materials from Allied Building Products Corporation, which furnished materials for the project.
- Concerned about the subcontractor’s credit, Allied entered into a joint-check agreement with Triangle and the subcontractor requiring Triangle to issue checks jointly payable to the subcontractor and Allied.
- The joint-check agreement capped Triangle’s liability to Allied under that arrangement at $100,000, but Triangle paid Allied more than $120,000 through joint checks.
- Allied claimed an additional unpaid balance of about $75,000 for materials supplied to the project and sought payment from United Pacific under the statutory bond.
- In opposing Allied’s summary judgment motion, Triangle submitted an affidavit asserting Allied billed for more roofing materials than were actually delivered.

## Issues

1. Whether the joint-check agreement’s $100,000 limit on Triangle’s liability operated as a waiver or limitation of Allied’s statutory right to recover against the payment bond for additional sums.
2. Whether Triangle’s affidavit disputing quantities delivered created a genuine dispute of material fact precluding summary judgment for Allied on the amount claimed.

## Decision

- The appellate court reversed the circuit court’s summary judgment for United Pacific and remanded.
- The court held the joint-check agreement did not extinguish or waive Allied’s statutory right to pursue the Little Miller Act payment bond absent a clear, explicit, and unequivocal waiver.
- The court held Triangle’s affidavit disputing deliveries was sufficient to create a genuine issue of material fact regarding the amount owed, defeating Allied’s request for summary judgment on damages.

## Legal Principles

- Maryland’s Little Miller Act payment bond requirement is remedial and is construed to protect those furnishing labor and materials on public projects.
- A supplier’s statutory right to recover on a payment bond is not waived by implication; waiver or limitation must be clear, explicit, and unequivocal.
- A joint-check agreement is generally an additional payment mechanism and does not, without express waiver language, displace the supplier’s independent statutory bond remedy.
- Summary judgment is improper where the nonmovant produces evidence, including an affidavit, creating a genuine dispute of material fact as to liability or the amount due (e.g., whether billed materials were actually delivered).

## Conclusion

The court held that a joint-check agreement capping the prime contractor’s liability under that agreement did not, without unmistakable language, waive a supplier’s statutory right to recover on a Little Miller Act payment bond, but remanded because an affidavit disputing the quantity of materials delivered raised a factual dispute over the amount owed.


Allied Bldg. Prods. Corp. v. United Pac. Ins. Co., 77 Md. App. 220, 549 A.2d 1163 (Ct. Spec. App. 1988)