It is not uncommon that a general contractor’s subcontract will include an arbitration provision. Or it will allow the general contractor to select binding arbitration as the method to resolve disputes at the general contractor’s SOLE OPTION. A general contractor’s subcontract should absolutely give the general contractor this important right. (Keep this in mind when drafting dispute resolution provisions for a general contractor.)
It is also not uncommon for a subcontractor the sue a general contractor’s payment bond surety, and NOT the general contractor. One reason to do this is to create an argument to avoid the dispute resolution provision in the subcontract. (Another reason is to avoid any pay-if-paid defense.) When this occurs, a general contractor may still want to arbitrate the subcontractor’s payment bond dispute and a way to do so is for the general intervene in the lawsuit and move to compel arbitration. Sometimes, it is even practical for the general contractor to immediately initiate the arbitration process against the subcontractor, particularly if the general contractor wants to assert a counterclaim, so that the motion to compel is supported by the formal demand for arbitration (and filed with the American Arbitration Association or other body administering the arbitration). I have done this on a number of occasions.
By way of example, in U.S. f/u/b/o American Electric Co., LLC, 2021 WL 5280665 (M.D.Fla. 2021), the general contractor hired a subcontractor for a federal construction project. The subcontract included a binding arbitration provision.
As required, the general contractor had a Miller Act payment bond. The subcontractor filed a Miller Act payment bond lawsuit in federal district court against the payment bond surety. The general contractor moved to intervene in the lawsuit to compel arbitration of the dispute and stay the dispute pending the outcome of arbitration. The general contractor also claimed that if arbitration is not compelled, it will assert a counterclaim against the subcontractor. The district court agreed that that the general contractor was entitled to permissively intervene under the Federal Rules of Civil Procedure:
[The general contractor] and [subcontractor] are the parties to the Subcontract, and, pursuant to the Payment Bond, [the general contractor] is jointly and severally liable for any sum the Court may find the Surety Defendants owe to [the subcontractor]. Under the circumstances similar to those presented in this action, other courts have found that the intervening general contractor’s claims share common questions of law or fact with the subcontractor’s suit against the general contractor’s surety. The Court reaches the same conclusion here. [The general contractor’s] claims and defenses share common questions of law and fact with the [payment bond] action pending, and, thus, [the general contractor] has shown that its interest is based on the action pending before the Court.
American Electric Company, supra, at *3 (internal citations omitted).
Additionally, the district court further found that the subcontractor would not be prejudiced by staying the action and compelling arbitration:
Here, all considerations weigh in favor of permitting [the general contractor] to intervene. First, allowing [the general contractor] to intervene in this action will further judicial economy by preventing a multiplicity of suits and the risk of inconsistent results. If denied intervention, [the general contractor] could still initiate an arbitration action or a separate lawsuit against [the subcontractor] on the underlying contract dispute. Similarly, if [the general contractor] is barred from intervening and [the subcontractor] recovers against the Surety Defendants, the Surety Defendants may file a separate action for indemnity against [the general contractor]. These various proceedings would waste resources dealing with the same dispute and would present the untenable risk of inconsistent results.
American Electric Company, supra, at *5 (internal citations omitted).
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