ENDICON v. VICON, INCORPORATED, 448 So.2d 194 (La.App. 1 Cir. 1984)

ENDICON, DIVISION OF U.S. INDUSTRIES, INC. v. VICON, INCORPORATED, AND RELIANCE INSURANCE COMPANY.

No. 83 CA 0440.Court of Appeal of Louisiana, First Circuit.
April 3, 1984.

APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE LEWIS S. DOHERTY, III, J.

John C. Miller, Baton Rouge, for plaintiff-appellant Endicon, Div. of U.S. Industries, Inc.

Bernard L. Balkin, and Michael J. Blake, Kansas City, Mo., for defendant-appellee Vicon, Inc., et al.

Charles S. McCowan, Jr., Baton Rouge, for defendant-appellee Reliance Ins. Co.

Before PONDER, WATKINS and CARTER, JJ.

WATKINS, Judge.

[1] The facts of the present case are substantially similar to those presented in Con-Plex v. Vicon, Inc. now before this court, La.App. 1984, 448 So.2d 191. The present subcontract was entered into by Endicon, division of U.S. Industries, Inc., and Vicon, Inc. Reliance Insurance Company was surety on the subcontractors’ bond. This case involves asphalt work on the Ponchatoula-Manchac Highway, Manchac Interchange, State Project # 452-02-45, FAP No. 1-55-1(34)14, Tangipahoa Parish, Louisiana. The trial court sustained a peremptory exception of prescription or peremption of two years based upon language in the subcontract and surety bond identical to that involved in Con-Plex, supra. Final retainage due on State Project No. 452-02-45 was paid by the State of Louisiana to the contractor, Endicon, on November 13, 1979. Plaintiff’s petition was filed November 3, 1982. [2] For the reasons set forth in Con-Plex, supra, we hold that the prescriptive period set forth in the surety contract had run before suit was filed. Accordingly, we affirm the judgment of the trial court in dismissing plaintiff’s cause of action against Reliance Insurance Company with prejudice, all costs to be paid by Endicon, division of U.S. Industries, Inc. [3] AFFIRMED.