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FIREMAN'S FUND INS. CO. v. U.S.

No. 90-5010.

909 F.2d 495 (1990)

FIREMAN'S FUND INSURANCE COMPANY, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

Rehearing Denied August 27, 1990.

Attorney(s) appearing for the Case

Stephen B. Sutton, Gage & Tucker, Kansas City, Mo., argued for plaintiff-appellee. With him on the brief were Charles D. Ablard and Paul Scott Kelly, Jr.

Helene M. Goldberg, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellant. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director.

Before MAYER and PLAGER, Circuit Judges, and SMITH, Senior Circuit Judge.

OPINION

MAYER, Circuit Judge.

The United States appeals the judgment of the United States Claims Court, 15 Cl.Ct. 225 (1988), holding that the Department of the Army's release of retainage was a departure from a construction contract that prejudiced the contractor's surety and discharged it pro tanto from its obligations under a performance bond. We reverse.

Background

On March 16, 1982, the Department of the Army (government...

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