Wellington Power Corp. v. CNA Surety Corp.

MAYNARD, Justice:

This Court is called upon to answer the following certified question from the Circuit Court of Monongalia County:

In a public building project in West Virginia, does a “pay if paid” condition precedent clause violate West Virginia public policy, as articulated in the West Virginia Public Bond Statute (W.Va.Code § 38-2-39), so as to entitle a subcontractor to proceed with a claim against a contractor’s surety bond, despite the terms of its subcontract that the contractor itself is not liable for payment to the subcontractor because of the failure of the same “pay if paid”…