American Cast Iron Pipe Co. v. Peabody-Petersen Co.

Decision Date27 February 1976
Docket NumberNo. 74--1367,PEABODY-PETERSEN,74--1367
PartiesAMERICAN CAST IRON PIPE COMPANY, Appellant, v.CO., an Illinois Corporation, et al., Appellees.
CourtFlorida District Court of Appeals

Ernest R. Drosdick, Lowndes, Peirsol, Drosdick & Doster, Orlando, for appellant.

Lawrence M. Watson, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Orlando, for appellees Peabody-Petersen Co. and Maryland Casualty Co.

OWEN, Judge.

Appellant, a supplier to a subcontractor on a public-works contract, suffered dismissal with prejudice of its suit against the principal and the surety of the contract bond because of the plaintiff's failure to comply with the notice requirements and time limitations of Fla.Stat. § 255.05(2) (1973).

The facts in this case are substantially identical to those in the case of United Bonding Insurance Company v. City of Holly Hill, 249 So.2d 720 (Fla.App.1st 1971), with the exception that the plaintiff in this case was a materialman to A subcontractor whereas in the United Bonding case, supra, the plaintiff was a materialman to The contractor. Appellee contends that this is a significant distinction between the two cases. However, its argument in support of its contention misses the mark. The issue here, simply stated, is whether the bond in this case was a common-law performance bond and thus, under the holding of the United Bonding case, supra, not subject to the notice requirements and time limitations set out in Fla.Stat. § 255.05(2) (1973), or whether the bond was a statutory bond to which Fla.Stat. § 255.05(2) (1973) applied. The distinction for which appellant contends simply does not affect this issue.

We conclude that the bond in this case was (just as was the bond in United Bonding, supra) a common-law performance bond. The order dismissing without leave to amend Counts I and II of appellant's first amended complaint is reversed and this cause remanded for further proceedings.

Reversed and remanded.

WALDEN, C.J., and CROSS, J., concur.

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3 cases
  • Southwest Florida Water Management Dist., for Use and Benefit of Thermol Acoustic Corp. v. Miller Const. Co., Inc. of Leesburg, 77-1060
    • United States
    • Florida District Court of Appeals
    • 10 d5 Março d5 1978
    ...Steel Corporation, 335 So.2d 18 (Fla. 2d DCA 1976), and by the Fourth District Court of Appeal in American Cast Iron Pipe Co. v. Peabody-Petersen Co., 328 So.2d 229 (Fla. 4th DCA 1976). ...
  • AMER. HOME ASSUR. CO. v. PLAZA MATER. CORP.
    • United States
    • Florida District Court of Appeals
    • 10 d5 Maio d5 2002
    ...See, e.g., Southwest Fla. Water Mgmt. Dist. v. Miller Constr. Co., 355 So.2d 1258 (Fla. 2d DCA 1978); Am. Cast Iron Pipe Co. v. Peabody-Petersen Co., 328 So.2d 229 (Fla. 4th DCA 1976). In 1980, the legislature amended the Act to add two significant provisions. See ch. 80-32, § 1, Laws of Fl......
  • American Home Assurance v. Plaza Materials
    • United States
    • Florida District Court of Appeals
    • 8 d5 Março d5 2002
    ...See, e.g., Southwest Fla. Water Mgmt. Dist. v. Miller Constr. Co., 355 So. 2d 1258 (Fla. 2d DCA 1978); Am. Cast Iron Pipe Co. v. Peabody-Petersen Co., 328 So. 2d 229 (Fla. 4th DCA 1976). In 1980, the legislature amended the Act to add two significant provisions. See ch. 80-32, § 1, Laws of ......

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