American Home Assurance Co. v. APAC-FLA., INC., 2D01-4613.

Decision Date10 January 2003
Docket NumberNo. 2D01-4613.,2D01-4613.
Citation834 So.2d 369
PartiesAMERICAN HOME ASSURANCE COMPANY, Appellant, v. APAC-FLORIDA, INC., a Delaware corporation, Appellee.
CourtFlorida District Court of Appeals

Robert A. Bauman of Robert E. Morris, P.A., Tampa, for Appellant. Dana G. Toole of Dunlap & Toole, P.A., Tallahassee, for Appellee.

ALTENBERND, Judge.

The defendant, American Home Assurance Company, appeals a final summary judgment entered in favor of the plaintiff, APAC-Florida, Inc. The judgment enforces the claims of APAC-Florida, Inc., against public construction payment and performance bonds issued by American Home. The payment and performance bonds were issued on the Department of Transportation's standard contract bond form XXX-XXX-XX. This court has held that a surety may not invoke the notice requirements and the shorter statute of limitations provided in section 255.05(2), Florida Statutes (1995), if it agrees to be surety on a bond that fails to comply with the mandatory notice provisions in section 255.05(6). See Am. Home Assurance Co. v. Plaza Materials, 826 So.2d 358 (Fla. 2d DCA 2002)

.

If a bond violates the mandatory notice provisions, it is governed by the longer statute of limitations in section 95.11, Florida Statutes (1995). Although this result is sometimes described as treating the bond as a "common law bond," in this situation, it merely subjects the bond to the more general statute of limitations because the bond did not contain the notice essential to invoke the more favorable requirements. We do not believe that the surety should be entitled to force claimants to participate in a jury trial on the issue of whether the omission in the bond misled them when the surety could have avoided the entire issue by requiring a bond in compliance with the notice provisions. We certify that our decision conflicts with that of the Fifth District in Florida Crushed Stone Co. v. American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002).

Affirmed.

CASANUEVA and DAVIS, JJ., Concur.

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4 cases
  • American Home Assur. v. PLAZA MATERIALS
    • United States
    • Florida Supreme Court
    • July 7, 2005
    ...District has repeated its dedication to the conclusions within the decision below in its subsequent American Home Assurance Co. v. APAC-Florida, Inc., 834 So.2d 369 (Fla. 2d DCA 2003), 7. Further, the dissent's reliance on various concurring opinions by United States Supreme Court Justice S......
  • American Home Assurance Company v. Apac-Florida, Inc.
    • United States
    • Florida Supreme Court
    • September 22, 2005
    ...G. Toole of Dunlap and Toole, P.A., Tallahassee, FL, for Respondent. PER CURIAM. We have for review American Home Assurance Co. v. APAC-Florida, Inc., 834 So.2d 369 (Fla. 2d DCA 2003), which relied upon American Home Assurance Co. v. Plaza Materials Corp., 826 So.2d 358 (Fla. 2d DCA 2002), ......
  • APAC-FLORIDA v. OneBeacon Ins. Co., 3D04-1394.
    • United States
    • Florida District Court of Appeals
    • November 24, 2004
    ...Plaza Materials Corp., 826 So.2d 358 (Fla. 2d DCA 2002), review granted, 842 So.2d 842 (Fla.2003), and American Home Assurance Co. v. Apac-Florida, Inc., 834 So.2d 369 (Fla. 2d DCA 2003), notice to invoke discretionary jurisdiction filed, No. SC03-207 (Fla. Feb. 6, 2003), with Florida Crush......
  • KB v. Department of Children & Families
    • United States
    • Florida District Court of Appeals
    • January 10, 2003
1 books & journal articles
  • Not all bonds are created equal: distinguishing a common law bond from a statutory bond.
    • United States
    • Florida Bar Journal Vol. 79 No. 2, February - February 2005
    • February 1, 2005
    ...of [section] 255.05(2) was not a result of the surety's prior noncompliance. In American Home Assurance Co. v. APAC-Florida, Inc., 834 So. 2d 369 (Fla. 2d DCA 2003), the Second District Court of Appeal certified that its decision conflicts with that of the Fifth District in Florida Crushed ......

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