Fla. Crushed Stone Co. v. AMER. HOME ASSUR. COMPANY, 5D01-1315.

Decision Date25 April 2002
Docket NumberNo. 5D01-1315.,5D01-1315.
Citation815 So.2d 715
PartiesFLORIDA CRUSHED STONE COMPANY, Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Appellee.
CourtFlorida District Court of Appeals

Virginia B. Townes, James E. Foster and Karen J. Zagrodny, of Akerman, Senterfitt & Eidson, P.A., Orlando, for Appellant.

Robert E. Morris and David Scott Knight of Robert E. Morris, P.A., Tampa, for Appellee.

Dana G. Toole, of Dunlap & Toole, P.A., Tallahassee, Amicus Curiae, for Florida Transportation Builder's Association, Inc.

HARRIS, J.

This case is the sequel to American Home Assurance Co. v. Plaza Materials Corp., 27 Fla. L. Weekly D1075, ___ So.2d ___, 2002 WL 940144 (Fla. 2d DCA May 10, 2002),1 in that it involves the same surety and the same "Polk County Parkway" as it extends into our jurisdiction. This time the claimant is Florida Crushed Stone Company (claimant), a company well versed in public work projects.2 The bond issued in this case is the same bond involved in Plaza Materials and therefore suffers the same deficiency in that although it substantially conforms to the statutorily approved bond form, it fails to include provisions required by subsections (1) and (6) of section 255.05, Florida Statutes. The issue before us then, as it was in Plaza Materials, is what the consequence should be when the bond fails to include certain required information when such failure does not prejudice claimants.

Plaza Materials determined that the consequence of the bond's non-compliance should be that the bond automatically becomes a common law bond, or at least renders the time restrictions in subsection (2) unenforceable, even though no prejudice has resulted from such non-compliance. But as we read section 255.05(4), perhaps the most unambiguous portion of the statute, Florida no longer recognizes a common law payment bond given on a public works project.3 The payment provisions of all bonds given on a public works project regardless of form, the legislature tells us, shall be construed as statutory bond provisions subject to the requirements of section 255.05(2).4 We believe that fashioning a remedy which incorporates a "common law payment bond" on this public works project which is not subject to the requirements of subsection (2) is contrary to the express language of the statute. Instead of holding that the bond's non-compliance with the statutory requirements automatically excuses claimants from complying with the provisions of subsection (2), we should recognize that the bond does incorporate these requirements but that a bonding company which has issued a bond which fails to incorporate all statutorily required information may be estopped from asserting the claimant's non-compliance with the provisions of subsection (2) if such non-compliance has resulted from the failure of the bond to contain the information required by the statute.5 But estoppel requires reliance, either on a misrepresentation of fact or on the failure to receive notice when notice is required, and a detrimental change of position. In our case, the claimant, a major supplier on public works contracts familiar with the intricacies of surety bonding, simply did not prove that its failure to comply with subsection (2) was because of the inadequacies of the notice provisions of the bond.6

In Martin Paving, we held that "unless subsection (1) is complied with, subsection (4) does not operate to require the claimant's compliance with subsection (2)." We construe this statement to mean that when neither party has complied with the requirements of section 255.05, we are free to fashion a remedy which does not require compliance with subsection (2) by the claimant if such non-compliance has resulted from the failure of the bond to include the information required by subsections (1) or (6). This statement in Martin Paving does not mean, we suggest, that in all cases in which the bond fails to provide all statutorily required information that the provisions of subsection (2) automatically become inapplicable. This statement was made in recognition of the fact that in Martin Paving the failure to record the bond prevented the claimant from knowing about the bond in order to permit timely compliance. In other words, it would be unfair to insist on the timely performance by the claimant when such non-performance was caused by the failure of the bond to be recorded. This interpretation gives proper weight to all provisions of the statute and seems far more consistent with the intent of the legislature to require both disclosure in the bond and timely performance by the claimant.

This same reasoning, to a point, is present in Plaza Materials. There the court in discussing the trial court's first three findings of non-compliance by the bonding company—failure to sufficiently describe the company's "business address," failure to adequately describe the property subject to the bond [both required by subsection (1) ], and the fact that the bond secured more than the statute required— recognized that the first two simply caused no prejudice and the third did not require the bond to fall outside the requirements of subsection (2). Although the court in Plaza Materials did not expressly rule on the issue because it found the bond's failure to comply with the provisions of subsection (6) dispositive, the implication is that had the bond failed to comply only in regard to the first two findings of the trial court it would have been enforced along with...

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6 cases
  • American Home Assur. v. PLAZA MATERIALS
    • United States
    • Florida Supreme Court
    • July 7, 2005
    ..."the same surety and the same `Polk County Parkway'" project, and arrived at a different result in Florida Crushed Stone Co. v. American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002). In its decision, the Fifth District [A]s we read section 255.05(4), perhaps the most unambiguous po......
  • Professional Plast. v. Bridgeport-Strasberg, 5D03-2572.
    • United States
    • Florida District Court of Appeals
    • July 12, 2006
    ...learning of the claim, it would not appear that the surety is prejudiced by untimely notice.1 Florida Crushed Stone Co. v. American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002), upon which the majority relies to support its "no prejudice" analysis is inapposite. That case dealt wit......
  • American Home Assurance Company v. Apac-Florida, Inc.
    • United States
    • Florida Supreme Court
    • September 22, 2005
    ...842 So.2d 842 (Fla.2003), which was pending review in this Court, and certified conflict with Florida Crushed Stone Co. v. American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002). We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).......
  • APAC-FLORIDA v. OneBeacon Ins. Co., 3D04-1394.
    • United States
    • Florida District Court of Appeals
    • November 24, 2004
    ...2003), notice to invoke discretionary jurisdiction filed, No. SC03-207 (Fla. Feb. 6, 2003), with Florida Crushed Stone Co. v. American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002). In our view, the requirement to file the bond in the public records is an important component of the ......
  • Request a trial to view additional results
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
    ...regressed from its strict constructionist view of [section] 255.05 in Florida Crushed Stone Company v. American Home Assurance Company, 815 So. 2d 715 (Fla. 5th DCA 2002). The court professed that its statement in Martin Paving, that "unless subsection (1) is complied with, subsection (4) d......

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