6-3000-15222-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF TRANSPORTATION

 

 

In the Matter of Wagner Construction, Inc.                  ORDER RECOMMENDING

State Contract No. CO1075                                       SUMMARY DISPOSITION

State Project No. 69-654-03

 

 

On July 25, 2003, the Department of Transportation filed a Notice of Motion and Motion for Summary Judgment in this matter.

 

On July 29, 2003, Wagner Construction filed a Notice of Motion and Motion for Summary Judgment.

 

By prior arrangement, both Motions set a hearing for August 29, 2003, at 1:30 p.m. in Minneapolis.  Both submissions included Affidavits of Service, indicating that service was made upon the attorney for Minnesota Aggregates, Inc.

 

On August 8, 2003, Minnesota Aggregates, Inc., filed a short response to the Motions, urging that they be denied.

 

On August 29, 2003, oral argument was heard on the Motions.  Appearing on behalf of the Department of Transportation was Michael A. Sindt, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101.

 

Appearing on behalf of Wagner Construction, Inc., was Joseph M. Boyle, Boyle Law Office, 235 Fourth Avenue, International Falls, Minnesota 56649.

 

There was no appearance by or on behalf of Minnesota Aggregates, Inc. at the oral argument.  The August 8 response was filed by Gregory L. Peters, of the firm of Seaton, Beck, Peters, Bowen, Feuss, 7301 Ohms Lane, Suite 320, Edina, MN 55439.

 

Based upon all of the files and proceedings herein, the Administrative Law Judge makes the following:

 

RECOMMENDED ORDER

 

1.             That the Department’s Motion for Summary Disposition be GRANTED.

2.             That Wagner Construction’s Motion for Summary Disposition be GRANTED.

3.             That the State of Minnesota pay Wagner Construction, Inc., $13,898.98 forthwith.

4.             That Wagner Construction, Inc., pay a total of $6,101.02 to five of Minnesota Aggregates, Inc.’s employees as follows:

 

                          Jeffrey Alseth                                  $1,879.90

                          Peter Johnson                                 $1,222.69

                          Ed VanCamp                                   $1,914.52

                          Gary Truman                                      $750.57

                          Kevin Christensen                               $665.29

 

5.               Upon Wagner’s proof of payment to the Department of Transportation of $6,101.02 to the above listed employees, the State of Minnesota will make payment in the amount of $6,101.02 to Wagner Construction, Inc.

6.               Upon the payments in Paragraphs 3, 4 and 5 being made, this matter is dismissed with prejudice.

7.               This Order is made for the reasons set forth in the attached Memorandum, which is incorporated herein.

 

Dated this 10^th  day of September, 2003

 

 

                                                                      S/ Allan W. Klein ________

                                                                      ALLAN W. KLEIN

                                                                      Administrative Law Judge

 

MEMORANDUM

 

          This matter arises out of a road project in the Duluth, Minnesota area.  In December of 2002, the Department’s Office of Construction and Contract Administration filed a Notice and Order for Hearing.  The Notice alleged that the prime contractor on the project, Wagner Construction, Inc., used a subcontractor, Minnesota Aggregates, Inc., which had failed to pay prevailing wage to its employees as required by Minn. Stat. §§ 177.41-177.44 (2000).  The Notice set a hearing for March 12-13, 2003 in Minneapolis to determine whether the allegations were true and what actions should be taken.

 

          On January 13, 2003, Wagner filed a Notice of Impleader, seeking to join Minnesota Aggregates as a Respondent in the contested case.  Minnesota Aggregates opposed the Impleader.  A prehearing conference telephone call was held on January 16, and briefs were submitted.  On February 25, 2003, the Administrative Law Judge ruled that MAI would be impleaded in the proceeding as a Respondent.  Minnesota Aggregates then requested a continuance of the hearing to allow for discovery, and in an Order dated March 13, 2003, the hearing was continued to an indefinite time.

 

          Discovery proceeded during the spring and early summer.  However, on July 7, 2003, the St. Louis County District Court entered an Order for Pre-Judgment Replevin of all of the accounts, inventory, equipment, and other assets of Minnesota Aggregates.[1]  In a letter dated July 11, Wagner’s attorney indicated that Minnesota Aggregates was now “defunct”, and that Wagner now agreed to pay the approximately $6,100 which Minnesota Aggregates should have paid to its employees had it paid them the prevailing wage.  Part of Wagner’s motivation for doing this was that the State was withholding $20,000 of monies due to Wagner until the prevailing wage matter was resolved.  Wagner agreed to pay the money owed to the Minnesota Aggregates’ employees so long as the State agreed to release the $20,000 it had withheld.

 

          The Motions for Summary Judgment cataloged above were filed in order to resolve this matter and get appropriate amounts to the appropriate employees. 

 

Summary disposition is the administrative equivalent of summary judgment.[2]  Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.[3]  A genuine issue is one that is not a sham or frivolous.  A material fact is a fact whose resolution will affect the result or outcome of the case.[4]

The moving party must demonstrate that no genuine issues of material fact exist.[5]  If the moving party is successful, the nonmoving party then has the burden of proof to show specific facts are in dispute that can affect the outcome of the case.[6]  The existence of a genuine issue of material fact must be established by substantial evidence; general averments are not enough to meet the nonmoving party's burden.[7]  The evidence presented to defeat a summary judgment motion, however, need not be in a form that would be admissible at trial.[8]  The nonmoving party also has the benefit of the most favorable view of the evidence.  All doubts and inferences must be resolved against the moving party.[9]

 

          For purposes of this Order Recommending Summary Disposition, the Administrative Law Judge has assumed that Minnesota Aggregates failed to pay five employees the amounts set forth above, totaling $6,101.02 which amounts the employees would have been paid had they been paid the prevailing wage.  Wagner Construction did pay its own employees all amounts that they were required to pay them.  However, because Minnesota Aggregates failed to pay five of its employees the amounts owed, and it no longer can do so because its accounts have been seized and it is no longer in business, Wagner has agreed to pay the $6,101.02 to the five Minnesota Aggregates employees.

 

          Under these circumstances, it is appropriate that the Motions be granted, the employees be paid, and the funds be released to Wagner.

 

                                                                                       A.W.K.