Miami-Dade Water and Sewer Authority v. Progress Supply, Inc.

Decision Date30 September 1980
Docket NumberNo. 79-290,MIAMI-DADE,79-290
PartiesWATER AND SEWER AUTHORITY and National Construction Corporation of Florida, Appellants, v. PROGRESS SUPPLY, INC., et al., Appellees.
CourtFlorida District Court of Appeals

Joe N. Unger, Maurice Jay Kutner, Miami, Anthony R. Silva, Coral Gables, for appellants.

Hall & Hauser and Gail V. Ferrington, Miami, for appellees.

Before HENDRY, NESBITT and BASKIN, JJ.

HENDRY, Judge.

Appeal is taken from a final summary judgment rendered adversely to National Construction Corporation of Florida (National), which seeks to recover a bad debt loss by recourse to a payment and performance bond issued by Travelers Indemnity Company (Travelers) to Progress Supply, Incorporated (Progress). National 1 argues that the lower court's reading of the law upon which its summary judgment issued was erroneous; it argues alternatively that summary disposition of the case was inappropriate, because an unresolved question of material fact was validly raised. Appellees Travelers and Progress cross-appeal on the basis that their attorney fee award was legally inadequate. For the following reasons, we affirm on all issues raised.

Appellant was hired to haul fill to the site of a Miami-Dade public works project. Its immediate employer was South Florida Trucking Company (South Florida), a truck broker itself engaged by R.A.E. Contractors (R.A.E.). R.A.E. was a subcontractor of Progress, the general contractor. When South Florida failed to fully pay National for its services, National sought recourse to the bond executed by Progress and Travelers.

Such a bond, statutorily required for all state or local public works projects, § 255.05, Fla.Stat. (1979), serves much the same purpose as the Mechanics' Lien Law, Sections 713.01-.36, Florida Statutes, 1979, which is itself expressly inapplicable to projects on state-or local-governmentally-owned property. § 713.01(14), Fla.Stat. (1979). (Presently, by 1977 amendment, recovery under the bond is available to those persons qualifying as lienors under the Mechanics' Lien Law. § 255.05, Fla.Stat. (1979). That amendment took effect on January 1, 1978. Ch. 77-81, § 2, Laws of Fla. However, all parties agree that our case is controlled by the law as it stood in 1977.) In 1977, payment under the contractor's bond was assured to "all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors ...." § 255.05, Fla.Stat. (1977). Thus, by its terms, the statutory provision mandated bond protection only to those servicing contractors or subcontractors. 2 Moreover, Florida caselaw uniformly interpreted the statutory mandate quite narrowly, and denied recovery under the bond to those below the level of sub-subcontractors, or subcontractors' materialmen. Southwest Florida Water Management District ex rel. Thermal Acoustic Corp. v. Miller Construction Co. of Leesburg, 355 So.2d 1258 (Fla.2d DCA 1978); William H. Gulsby, Inc. v. Miller Construction Co. of Leesburg, 351 So.2d 396 (Fla.2d DCA 1977); North Broward Hospital District ex rel. Southern Insulation Corp. v. Crosewell, 188 So.2d 54 (Fla.2d DCA 1966); City of Fort Lauderdale ex rel. Bond Plumbing Supply, Inc. v. Hardrives Co., 167 So.2d 339 (Fla.2d DCA 1964) and Board of Public Instruction, Broward County ex rel. Monmouth Plumbing Supply Co. v. Rood Construction Co., 166 So.2d 701 (Fla.3d DCA 1964), citing federal cases similarly interpreting the Miller Act, 40 U.S.C § 270a, after which our § 255.05 was patterned. 3

National would have us disaffirm those decisions on the ground that, in light of the subsequent statutory amendment, they represent a misinterpretation of the legislature's original intent.

We recognize that

while the views of subsequent (legislatures) cannot override the unmistakable intent of the enacting one, ... such views are entitled to significant weight, ... and particularly so when the precise intent of the enacting (legislature) is obscure.

Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 814, 63 L.Ed.2d 36, 54 (1980). However, the value of such subsequent legislative attention, insofar as it might cast light upon a prior legislative intent, diminishes over time, so that, while

(i)t is an accepted rule of construction that an amendment following soon after a controversy has arisen as to the interpretation of the original act may be construed as explanatory of the ambiguities from which such controversy arose ...,

In re Honeoye Central School District, Town of Livonia v. Berle, 72 A.D.2d 25, 423 N.Y.S.2d 336, 342 (App.Div.1979),

the views of one (legislature) as to the construction of a statute adopted many years before by another (legislature) have "very little, if any, significance."

United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 2001, 20 L.Ed.2d 1001, 1012 (1968) (Harlan, J.).

The language limiting recovery to servicers of contractors and subcontractors had been unchanged since its adoption in 1963, Ch. 63-437, § 1, Laws of Fla.; the 1963 enactment was itself a restatement, rather than amendment, of terms adopted by the 1925 Legislature. 4

We are not disposed to view the Legislature's 1977 amendment as anything less that a clear divergence from prior law. Whatever its virtues, its retroactive application...

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2 cases
  • Harvesters Group, Inc. v. Westinghouse Elec. Corp.
    • United States
    • Florida District Court of Appeals
    • 7 Junio 1988
    ...of Ft. Lauderdale, Inc. v. Frank Maio Gen. Contractors, Inc., 438 So.2d 1018 (Fla. 4th DCA 1983); Miami-Dade Water & Sewer Auth. v. Progress Supply, Inc., 389 So.2d 253 (Fla. 3d DCA 1980); State v. Clutter Constr. Corp., 132 So.2d 21 (Fla. 3d DCA 1961), aff'd, 139 So.2d 426 (Fla. 1962). Bef......
  • Standard Heating Service, Inc. v. Guymann Const., Inc.
    • United States
    • Florida District Court of Appeals
    • 7 Noviembre 1984
    ...telephone service or rental equipment, whereas, the statute applies to the furnishing of "materials" (which includes fuel, see Progress Supply, supra ) is of no moment. The bond provided no more expanded coverage than a statutory bond. Furthermore, the bond's definition of a claimant appear......

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