Southwest Florida Water Management Dist., for Use and Benefit of Thermol Acoustic Corp. v. Miller Const. Co., Inc. of Leesburg, 77-1060

Decision Date10 March 1978
Docket NumberNo. 77-1060,77-1060
Citation355 So.2d 1258
PartiesSOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, for the Use and Benefit of THERMAL ACOUSTIC CORPORATION, Appellant, v. MILLER CONSTRUCTION CO., INC. OF LEESBURG and the American Insurance Company, Appellees.
CourtFlorida District Court of Appeals

Joseph I. Goldstein of Mateer, Harbert, Bechtel & Phalin, Orlando, for appellant.

George H. Russ of Ranston E. Davis, Leesburg, for appellees.

SCHEB, Judge.

The issue presented by this appeal is whether a performance, payment, and guaranty bond delivered to a governmental entity incident to a public works contract was a statutory bond given pursuant to Section 255.05, Florida Statutes (1975), or a more broadly written common law bond.

Appellant/plaintiff Thermal sued appellees/defendants Miller and American, as principal and surety on a bond furnished incident to a public works contract. Thermal's second amended complaint alleged that Miller contracted to construct a building for the Southwest Florida Water Management District (SWFWMD); that incident to the contract, Miller and its surety American filed a performance, payment, and guaranty bond in a penal sum of $414,407. Thermal alleged that it had not been paid and claimed against the bond for a sum in excess of $12,000 for labor and materials furnished to one of the subcontractors on the project. A copy of the bond and notices of claim were attached to the complaint.

On motion by Miller and American the trial judge dismissed the complaint with prejudice, holding that it failed to state a cause of action for recovery on either a statutory or common law bond. From this order, Thermal appeals. We reverse and hold that Thermal's second amended complaint alleged sufficient ultimate facts to establish a claim under a common law bond, i. e., one which grants coverage in excess of the requirements imposed under Section 255.05.

Since the appellees' bond was furnished incident to a government project, we first examine the bonding requirements imposed by law for work on public works projects. Section 255.05, Florida Statutes (1975) states:

(1) Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of any public building for such state, county, city, political subdivision, or public authority . . . shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor shall promptly make payments to all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors in the prosecution of the work provided for in said contract . . . .

(2) Any person supplying labor, material or supplies used directly or indirectly in the prosecution of the work to any subcontractor and who has not received payment therefor, shall, within ninety days after performance of the labor or after complete delivery of materials and supplies, deliver to the contractor written notice of the performance of such labor or delivery of such materials and supplies and the nonpayment therefor, and no action or suit for such labor or for such materials and supplies may be instituted or prosecuted against the contractor unless such notice has been given. No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after one year from the performance of the labor or completion of delivery of the materials and supplies.

The primary purpose of the statute is to afford additional protection to persons who perform labor or furnish materials to a public works project on which they cannot acquire a lien. Winchester v. State ex rel. Florida Electric Supply, Inc., 134 So.2d 826 (Fla. 2d DCA 1961). But not every bond furnished incident to a public works project falls within the ambit of the statute. Rather, the courts recognize a distinction between a statutory bond issued in connection with such a project and a common law bond. A bond, even though furnished pursuant to a public works contract, will be construed as a common law bond if it is written on a more expanded basis than required by Section 255.05, Florida Statutes (1975). Moreover, ambiguities in the form of such a bond must be construed in favor of granting the broadest possible coverage to those intended to be benefited by its protection. United Bonding Insurance Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971).

The bond furnished SWFWMD by Miller and American referred to the construction agreement; however, the bond did not provide that it was furnished pursuant to the statutory requirements for bonds on public works projects, nor did it refer specifically to Section 255.05. No specific notice requirement, nor time limitations for filing claims...

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16 cases
  • American Home Assur. v. PLAZA MATERIALS
    • United States
    • Florida Supreme Court
    • July 7, 2005
    ...time limitation and provided coverage in excess of that required by the statute); S.W. Fla. Water Mgmt. Dist. ex rel. Thermal Acoustic Corp. v. Miller Constr. Co., 355 So.2d 1258, 1259 (Fla. 2d DCA 1978) (deeming bond a common law bond because it provided coverage in excess of that required......
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    ...the statute requires, its supra-statutory provisions may be enforced as a valid common-law obligation. S.W. Fla. Water Mgt. Dist. v. Miller Constr. Co., 355 So.2d 1258, 1259 [Fla.App.1978]; Clatsop County v. Feldschau, 101 Or. 369, 199 P. 953, 955 [1921]; Puget Sound State Bank v. Gallucci,......
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    ...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.......
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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
    ...continued in Southwest Florida Water Management District ex rel. Thermal Acoustic Corp. v. Miller Construction Co., Inc. of Leesburg, 355 So. 2d 1258 (Fla. 2d DCA 1978). In Southwest Florida, an unpaid material supplier to a subcontractor initiated suit against a performance, payment, and g......

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