UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TRUSTEES OF THE DETROIT 

CARPENTERS FRINGE BENEFIT FUNDS, 

Case No.

Plaintiffs, Hon.

v

BRINKER TEAM CONSTRUCTION CO., a Michigan

corporation and LARRY S. BRINKER, an individual,

jointly and severally,

Defendants.

 /

WALTER B. FISHER JR. (P51337)

FILDEW HINKS, PLLC

Attorneys for Plaintiffs

26622 Woodward Avenue

Suite 225

Royal Oak, MI 48067

(248) 837-1397

wfisher@fildewhinks.com

/

COMPLAINT

Plaintiffs, by their attorneys, Fildew Hinks, PLLC, state:

1. The Detroit Carpenters Fringe Benefit Funds, a voluntary association,

consists of representatives and agents of the Detroit Carpenters Health and Welfare

Fund, the Michigan Regional Council of Carpenters Employee Benefits Fund, the

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Carpenters Pension Trust Fund - Detroit and Vicinity, the Carpenters Annuity Fund, the

Michigan Regional Council of Carpenters Annuity Fund, the Detroit Carpenters Joint

Apprenticeship and Training Trust Fund, the Guarantee Fund and the Industry

Advancement Fund (if applicable), each of which is a trust fund established pursuant to

the Labor-Management Relations Act of l947 (“LMRA”), as amended, 29 U.S.C., Section

141 et seq., and the Employee Retirement Income Security Act of l974 (“ERISA”), as

amended, 29 U.S.C., Section 1001 et seq., having its principal office in this District and

Division. Plaintiffs are trustees of the funds named, on whose behalf, and on behalf of

whose beneficiaries, this action is filed, as their respective interests shall appear.

2. Defendant Brinker Team Construction Co., is a Michigan corporation doing

business in this district and division.

3. Larry S. Brinker is an individual doing business in this district and division.

4. Larry S. Brinker was an owner, officer, and/orindividual otherwiseinvolved

with a Michigan corporation known as Brinker Team Construction Co., a business which

engaged in the commercial construction industry. In such capacity, and upon

information and belief, Larry S. Brinker was involved in, and took part in, the day-to-day

affairs and operations of, and maintained control of Brinker Team Construction Co.

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5. Jurisdiction ofthis Court is predicatedonSection30l ofthe LMRA, 29 U.S.C.,

Section l85, and Section 502 of ERISA, 29 U.S.C., Section 1132, this being a suit for

violation of a contract between an employer (Defendant) and the Michigan Regional

Council of Carpenters, AFL-CIO, the successor to the Carpenters District Council of

Detroit, (the “Union”), a labor organization representing employees in an industry

affecting commerce. 

Count I ERISA Claim

6. Plaintiffsincorporate each and every allegation contained in the preceding

paragraphs as though fully set forth herein.

7. Brinker Team Construction Co., either directly or through its authorized

agents, has entered into one or more collective bargaining agreements with the Union,

copies of which are in the possession of the Defendant and are not attached hereto due

to their bulk, but which will be supplied upon request. 

8. Pursuant to the collective bargaining agreements Brinker Team

Construction Co. became obligated to pay wages and to make periodic payments to the

Funds represented by Plaintiffs, which payments constituted employee benefits earned

by employees ofBrinker Team Construction Co.whowere either members, orfellwithin

the jurisdiction, ofthe Union and were covered by the collective bargaining agreements.

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9. Plaintiffs became aware that Brinker Team Construction Co. was not

making required fringe benefit contributions in violation of ERISA and its collective

bargaining agreement with the Union on January 22, 2014.

10. Pursuant to the collectivebargaining agreements alleged above, Defendant

submitted for audit its books and records to verify the accuracy of the contributions

made to Plaintiffs pursuant to the agreements as well as to determine the amount of

any deficiency for the period January 1, 2008 through April 31, 2013.

11. On January 22, 2014, Plaintiffs determined a deficiency for fringe benefits,

in the amount of $172,689.72 for the period January 1, 2008 through April 31, 2013, less

payment of $27,607.66 received on May 15, 2012, for outstanding benefits for

March 1, 2011, through May 31, 2011, for a total outstanding, fringe benefit balance of

$145,082.06. See attached Exhibit A.

12. Plaintiffs determined outstanding liquidated damages and interest owing

as of January 22, 2014 totaling $211,324.95.

13. There is now due and owing to Plaintiffs from Defendant the sum of

$356,407.01.

14. Plaintiffs sent the audit letter attached as Exhibit A to the Defendants on

January 22, 2014.

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15. Despite demands by Plaintiffs, Defendant has failed, neglected and refused

to pay that amount or any portion thereof.

WHEREFORE, Plaintiffs pray:

A. That this Court enter judgment against Brinker Team Construction Co. for

$356,407.01, plus actual costs, double interest and actual attorney fees. 

B. That this Court grant Plaintiffs any other relief that it deems appropriate.

Count II Michigan Builders Trust Fund Claim

16. Plaintiffsincorporate each and every allegation contained in the preceding

paragraphs as though fully set forth herein.

17. During the period January 1, 2008 through April 17, 2013, Defendant

engaged in the business of commercial construction contracting, among other facets of

the construction industry, and as such conducted business in the building construction

industry within the meaning of the Michigan Building Contract Fund Act, Mich. Comp.

Laws Ann. §570.151 et seq. (hereinafter the “Trust Fund Act”).

18. Larry S. Brinker, in connection with the operation of Brinker Team

Construction Co., received payment from customers for all, or part, of the labor which

remainsthe subject ofthefringebenefit contributions which remain unpaid to Plaintiffs.

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19. Pursuant to the Trust Fund Act, any such payments received by Brinker

Team Construction Co. and/or Larry S. Brinker were deemed to be held in trust by them,

as trustees for the benefit of, among others, the individual employees who furnished

labor to, and or on behalf of, Brinker Team Construction Co..

20. The funds that were held in trust by Brinker Team Construction Co. and

Larry S. Brinker, in their capacities under the Trust Fund Act, included the contributions

Brinker Team Construction Co. was required to make to the Plaintiffs for the period

January 1, 2008 through April 31, 2013.

21. In violation of the Trust Fund Act, Brinker Team Construction Co. and

Larry S. Brinker retained, used or appropriated said payments received for purposes

other than to pay the fringe benefit contributions accrued for the benefit of the

individual carpenters employed by Brinker Team Construction Co..

22. Brinker Team Construction Co. and Larry S. Brinker appropriated monies

paidto Brinker Team Construction Co.for their own business operations and/orfor their

own personal use before payment of all monies due, or to become due to Plaintiffs, in

violation of Mich. Comp. Laws Ann. 570.151, et seq.

WHEREFORE, Plaintiffsrequest this court order an accounting in connection with

payments received by Brinker Team Construction Co. for work performed during the

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period January 1, 2008, through April 31, 2013; declare Brinker Team Construction Co.

and Larry S. Brinker to be Trustees with respect to funds received during that period; to

trace the proceeds of the subject trust funds, and to enter judgment against Brinker

Team Construction Co. and Larry S. Brinker jointly and severally in the amount of

$356,407.01, plus actual costs, interest and actual attorney fees. 

Count III

Violation of Employee Retirement Income Security Act (ERISA)

29 U.S.C. § 1001 et. Sec.

23. Plaintiffsincorporate each and every allegation contained in the preceding

paragraphs as though fully set forth herein.

24. Individuals providing labor and employed by, or on behalf of, Brinker Team

Construction Co., Inc., pursuant to the subject collective bargaining agreement earned

outstanding fringe benefit contributions in connection with and in furtherance of their

employment. See audit attached as Exhibit A. 

25. These accrued fringe benefit contributions were properly payable to the

employee benefit plans administered by Plaintiffs when due.

26. The accrued fringe benefit contributions and funds otherwise in the

Defendants’ possession, custody and/or control which were otherwise available to pay

the accrued fringe benefit contributions were to be held in trust by the defendants in

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their capacity as a fiduciary, as required by ERISA pursuant to 29 U.S.C. § 1145, until the

defendants paid to Plaintiffs said fringe benefit contributions in accordance with the

terms and conditions of their collective bargaining agreement and related trust

agreements. Such accrued fringe benefit contributions became assets ofthe respective

employee benefit plans administered by Plaintiffs upon accrual.

27. The Defendants failed to turn over these plans assets by failing to pay all

of the accrued outstanding fringe benefit contributions to Plaintiffs when due. Rather,

upon information and belief, the Defendants utilized the accrued outstanding fringe

benefit contributions and funds otherwise within their possession, custody, and/or

control for purposes other than payment to Plaintiffs.

28. In failing to turn over such plan assets to Plaintiffs, the Defendants violated

29 U.S.C. § 1145, 1104, and 1109 (a) and their obligations under the collective

bargaining agreement and related Trust Agreements incorporated therein.

29. The Defendants’ failure to turn over plan assets, failure to make fringe

benefit contributions to Plaintiffs, failure to account for those contributions, and misuse

of funds otherwise properly payable to Plaintiffs constitute a breach of their fiduciary

duties regarding the Funds within the meaning of 29 U.S.C. § 1104(a)(1)(A) and are

violations of 29 U.S.C. § 1145, 1104 and 1109 (a).

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30. Individual Larry S. Brinker is personally liable to the Funds for breaching his

fiduciary duties pursuant to 29 U.S.C. § 1104(a).

WHEREFORE, Plaintiffs pray:

A. That this Court enter judgment against Defendant Larry S. Brinker for all

unpaid fringe benefit contributions owed by Brinker Team Construction Co., Inc.,

pursuant to the Funds audit of Brinker Team Construction Co., Inc., for the period

January 1, 2008, through April 31, 2013 in the amount of $356,407.01 plus actual costs,

interest and actual attorney fees.

B. That this Court grant Plaintiffs any other relief that it deems appropriate.

Dated: October 15, 2014 FILDEW HINKS, PLLC

By: /s/Walter B. Fisher Jr.

Attorneys for Plaintiffs

26622 Woodward Avenue

Suite 225

Royal Oak, MI 48067

(248) 837-1397

wfisher@fildewhinks.com

P51337

J:\2001\0646\Electronic Pleadings\2014 Complaint\Complaint 10-15-14.wpd

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EXHIBIT A

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