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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SUBTERRANEAN CONSTRUCTION CO., INC. Plaintiff, * v. * W.D. CURRAN & ASSOCIATES, INC, AND SELECTIVE INSURANCE COMPANY OF AMERICA, Defendants. * * * * * * * * * * * * * * * * Civil Action No.: RDB 04-3861 * *

MEMORANDUM OPINION Pending before the Court is the Motion for Summary Judgment, filed by Plaintiff Subterranean Construction Co., Inc. ("Plaintiff" or "Subterranean"), and the Motion to Dismiss or in the Alternative Cross-Motion for Summary Judgment, filed by Defendant Selective Insurance Company of America ("Selective"). The parties' submissions have been carefully reviewed. No hearing is necessary. See Local Rule 105.6 (D. Md. 2004). For the reasons stated below, Plaintiff's Motion for Summary Judgment is DENIED and Selective's Motion to Dismiss or in the Alternative Cross-Motion for Summary Judgment is GRANTED. BACKGROUND The dispute in this case relates to the "Approach Road Improvements" construction project at the Smithsonian Environmental Research Center ("SERC") in Harwood, Maryland. In connection with this project, SERC, a U.S. government agency, awarded construction contract F-

0136CC10495 to Defendant W.D. Curran & Associates, Inc. ("W.D. Curran"). As required by

the Miller Act, W.D. Curran furnished a payment bond executed by Defendant Selective as surety. See 40 U.S.C.

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Maryland Law