DEVLIN LUMBER AND SUPPLY CORPORATION, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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The United States is not liable under the Federal Tort Claims Act for a materialman's loss due to the government's failure to require a payment bond under the Miller Act.
A materialman suffered a loss because the government's contracting officer failed to require a payment bond from the contractor as mandated by the Mil…
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PER CURIAM:
This case involves the liability of the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674, for the loss suffered by a materialman because the government’s contracting officer failed to require a payment bond from the contractor, as required by the Miller Act, 40 U.S.C. § 270a.
The Federal Tort Claims Act makes the United States liable, “ * * * relating to tort claims, in the same manner and to the same extent as a private Individual under like circumstances 28 U.S.C. § 2674. The Miller Act is a direction to federal contracting officers, and applicable only to them. individual * # * >>
A violation of the Miller Act, unlike, for example, the negligent operation of a lighthouse, Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), can have no counterpart in private activity, and cannot give rise to liability under the common law. Therefore, a violation of the Miller Act does not create liability on the part of the government under the Federal Tort Claims Act. United States v. Smith, 324 F. 2d 622 (5th Cir. 1963).
Affirmed.
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United Scottish Ins. Co. v. United States, 614 F.2d 188 (9th Cir. 1979)
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Sellfors v. United States, 697 F.2d 1362 (11th Cir. 1983)
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Carol A. Gelley for the Heirs of Richard Lawrence Gelley v. Astra Pharm. Prods. Inc., 610 F.2d 558 (8th Cir. 1979)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Indian Towing Co., Inc. v. United States, 350 U.S. 61 (U.S. 1955)
- United States v. Smith, 324 F.2d 622 (5th Cir. 1963)