Florida Construction Law

If the claimant requested a copy of the bond from the contractor or owner and did not receive one, then the claimant may have rights against them for failure to provide a copy, but that will not excuse the claimant’s failure to timely perfect its claim against the surety.    Mursten Const. Co. v. C.E.S. Industries, Inc. , 588 So. 2d 1061 (Fla. 3d DCA 1991).  (RPPTL Subcommittee). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Hartford Cas. Ins. Co. v. City of Marathon , 2011 WL 5825503 (S.D. Fla. 2011),  held that a performance bond surety is not responsible for a cardinal change on the  project, despite language in the contract where the surety consented to  changes. (RPPTL Subcommittee). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Section 287.042(2)(c) provides: "Any person who files an action protesting a decision or intended decision pertaining to contracts administered by the department, a water management district, or an agency pursuant to s.  120.57 (3)(b) shall post with the department, the water management district, or the agency at the time of filing the formal written protest a bond payable to the department, the water management district, or agency in an amount equal to 1 percent of the estimated contract amount. For protests of decisions or intended decisions pertaining to exceptional purchases, the bond shall be in an amount equal to 1 percent of the estimated contract amount for the exceptional purchase...."  Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

"Actual notice that a materialman is providing materials to a project, therefore, is insufficient to satisfy the notice requirements of Section 713.23(1)(c) . A subcontractor is not excused from the notice requirement of Section 713.23(1)( c) even where the owner, surety or contractor did not fully adhere to the requirements of chapter 713, Florida Statutes. See Prof'l Plastering & Stucco, 940 So.2d at 448 (“[E]ven if the Subcontractor is correct that the Owner, the Surety, and the Contractor did not fully adhere to the requirements of chapter 713, the Subcontractor [is] not excused from complying with the requirements of Section 713.23  that it provide notice ....” (quoting Bridgeport, Inc. v. Tampa Roofing Co., 903 So.2d 306, 309 (Fla. 2d DCA 2005) )." Stock Building Supply of Florida, Inc. v.  Soares Da Costa Construction Services, LLC , 2011 WL 2694522 (Fla. 4th DCA October 5, 2011). Trenton H. Cotney Board Certified in Construction Law Tren...

Generally, a surety cannot be held liable beyond the penal amount or sum of the bond.  The concept is similar to insurance where a carrier can tender its policy limits.   Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

HB 0985 - Hillsborough County public project bonds.  This bill defers the repeal of Chapter 2004-414, Laws of Florida, which relates to projects for which payment and performance bonds may be waived for construction of public buildings, public works or repairs on public buildings or public work when the cost of the project is below a certain threshold amount and the bid is awarded through an economic development program created to encourage local small businesses to participate in county procurement programs. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

In Anderson Columbia Co., Inc. v. FDOT , 744 So.2d 1206 (Fla. 1st DCA 1999), a contractor could not use an attorney's fees provision in a FDOT contract because the fees provision was for the benefit of FDOT and was limited to "ascertaining and collecting losses under the bond" and contractor's action was not on the bond. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

In Fisk Electric Co. v. Travelers Casualty and Surety Co ., 2009 WL 196032 (S.D. Fla. 2009), the Court held that a subcontractor could pursue delay damages against a surety based on a private payment bond.  The Court reasoned that the language of the private bond was simliar to a Miller Act bond and that language would allow the subcontractor to pursue delay damges. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

The Plumbing Service Company v. Progressive Plumbing, Inc., Case No. 5D09-3717, filed October 22, 2010: Trial court ruled that sub-subcontractor was barred by election of remedies doctrine from recovering damages for breach of contract (loss profits on uncompleted work) due to recovery under a s. 713.23 payment bond. Reversed and remanded to allow such action since it was not duplicative of bond coverage for payment of completed work, since election of remedies is based on estoppels to prevent double recovery for the same wrong. Court noted that s. 713.30 provides that bond remedy is “cumulative to other existing remedies ….” Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com