Florida Senate - 2019                        COMMITTEE AMENDMENT
       Bill No. SB 1200
       
       
       
       
       
       
                                Ì603720qÎ603720                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/26/2019           .                                
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       The Committee on Judiciary (Stargel) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (a) of subsection (2) of section
    6  255.05, Florida Statutes, is amended to read:
    7         255.05 Bond of contractor constructing public buildings;
    8  form; action by claimants.—
    9         (2)(a)1. If a claimant is no longer furnishing labor,
   10  services, or materials on a project, a contractor or the
   11  contractor’s agent or attorney may elect to shorten the time
   12  within which an action to enforce any claim against a payment
   13  bond must be commenced by recording in the clerk’s office a
   14  notice in substantially the following form:
   15  
   16                     NOTICE OF CONTEST OF CLAIM                    
   17                        AGAINST PAYMENT BOND                       
   18  
   19  To: ...(Name and address of claimant)...
   20  
   21         You are notified that the undersigned contests your notice
   22  of nonpayment, dated ............, ........, and served on the
   23  undersigned on ............, ........, and that the time within
   24  which you may file suit to enforce your claim is limited to 60
   25  days after the date of service of this notice.
   26  
   27         DATED on ............, .........
   28  
   29  Signed: ...(Contractor or Attorney)...
   30  
   31  The claim of a claimant upon whom such notice is served and who
   32  fails to institute a suit to enforce his or her claim against
   33  the payment bond within 60 days after service of such notice is
   34  shall be extinguished automatically. The contractor or the
   35  contractor’s attorney shall serve a copy of the notice of
   36  contest to the claimant at the address shown in the notice of
   37  nonpayment or most recent amendment thereto and shall certify to
   38  such service on the face of the notice and record the notice.
   39         2. A claimant, except a laborer, who is not in privity with
   40  the contractor shall, before commencing or not later than 45
   41  days after commencing to furnish labor, services, or materials
   42  for the prosecution of the work, serve furnish the contractor
   43  with a written notice that he or she intends to look to the bond
   44  for protection. A claimant who is not in privity with the
   45  contractor and who has not received payment for furnishing his
   46  or her labor, services, or materials shall serve a written
   47  notice of nonpayment on deliver to the contractor and on to the
   48  surety written notice of the performance of the labor or
   49  delivery of the materials or supplies and of the nonpayment. The
   50  notice of nonpayment shall be under oath and served during the
   51  progress of the work or thereafter but may not be served earlier
   52  than 45 days after the first furnishing of labor, services, or
   53  materials by the claimant or later than 90 days after the final
   54  furnishing of the labor, services, or materials by the claimant
   55  or, with respect to rental equipment, not later than 90 days
   56  after the date that the rental equipment was last on the job
   57  site available for use. The notice of nonpayment must state the
   58  nature of the labor or services performed; the nature of the
   59  labor or services to be performed, if known; the materials
   60  furnished; the materials to be furnished, if known; the amount
   61  paid on account to date; the amount due; and the amount to
   62  become due, if known. All such information given must be current
   63  as of the stated date of the notice. Any notice of nonpayment
   64  served by a claimant who is not in privity with the contractor
   65  which includes sums for retainage must specify the portion of
   66  the amount claimed for retainage. An action for the labor,
   67  services, or materials, or supplies may not be instituted
   68  against the contractor or the surety unless the notice to the
   69  contractor and notice of nonpayment have been served, if
   70  required by this section. Notices required or permitted under
   71  this section must shall be served in accordance with s. 713.18.
   72  A claimant may not waive in advance his or her right to bring an
   73  action under the bond against the surety. In any action brought
   74  to enforce a claim against a payment bond under this section,
   75  the prevailing party is entitled to recover a reasonable fee for
   76  the services of his or her attorney for trial and appeal or for
   77  arbitration, in an amount to be determined by the court, which
   78  fee must be taxed as part of the prevailing party’s costs, as
   79  allowed in equitable actions. The time periods for service of a
   80  notice of nonpayment or for bringing an action against a
   81  contractor or a surety shall be measured from the last day of
   82  furnishing labor, services, or materials by the claimant and may
   83  not be measured by other standards, such as the issuance of a
   84  certificate of occupancy or the issuance of a certificate of
   85  substantial completion. The negligent inclusion or omission of
   86  any information in the notice of nonpayment that has not
   87  prejudiced the contractor or surety does not constitute a
   88  default that operates to defeat an otherwise valid bond claim. A
   89  claimant who serves a fraudulent notice of nonpayment forfeits
   90  his or her rights under the bond. A notice of nonpayment is
   91  fraudulent if the claimant has willfully exaggerated the amount
   92  due, willfully included a claim for work not performed or
   93  materials not furnished for the subject improvement, or prepared
   94  the notice with such willful and gross negligence as to amount
   95  to a willful exaggeration. However, a minor mistake or error in
   96  a notice of nonpayment, or a good faith dispute as to the amount
   97  due, does not constitute a willful exaggeration that operates to
   98  defeat an otherwise valid claim against the bond. The service of
   99  a fraudulent notice of nonpayment is a complete defense to the
  100  claimant’s claim against the bond. The notice of nonpayment
  101  under this subparagraph must be in substantially the following
  102  form:
  103  
  104                        NOTICE OF NONPAYMENT                       
  105  
  106  To: ...(name of contractor and address)...
  107  ...(name of surety and address)...
  108  The undersigned claimant notifies you that:
  109         1.Claimant has furnished ...(describe labor, services, or
  110  materials)... for the improvement of the real property
  111  identified as ...(property description).... The corresponding
  112  amount now due and unpaid is $ .....
  113         2.Claimant has been paid on account to date the amount of
  114  $ .... for previously furnishing ...(describe labor, service, or
  115  materials)... for this improvement.
  116         3.Claimant expects to furnish ...(describe labor, service,
  117  or materials)... for this improvement in the future (if known),
  118  and the corresponding amount expected to become due is $ ....
  119  (if known).
  120  
  121  I declare that I have read the foregoing Notice of Nonpayment
  122  and that the facts stated in it are true to the best of my
  123  knowledge and belief.
  124  
  125  DATED on ............, .........
  126  
  127  ...(signature and address of claimant)...
  128  
  129  STATE OF FLORIDA
  130  COUNTY OF
  131  
  132  The foregoing instrument was sworn to (or affirmed) and
  133  subscribed before me this .... day of ...., ...(year)..., by
  134  ...(name of signatory)....
  135         ...(Signature of Notary Public - State of Florida)...
  136         ...(Print, Type, or Stamp Commissioned Name of Notary
  137  Public)...
  138  
  139         Personally Known .... OR Produced Identification ....
  140         Type of Identification Produced..........................
  141  
  142         Section 2. Subsection (1) of section 627.756, Florida
  143  Statutes, is amended to read:
  144         627.756 Bonds for construction contracts; attorney fees in
  145  case of suit.—
  146         (1) Section 627.428 applies to suits brought by owners,
  147  contractors, subcontractors, laborers, and materialmen against a
  148  surety insurer under payment or performance bonds written by the
  149  insurer under the laws of this state to indemnify against
  150  pecuniary loss by breach of a building or construction contract.
  151  Owners, contractors, subcontractors, laborers, and materialmen
  152  shall be deemed to be insureds or beneficiaries for the purposes
  153  of this section.
  154         Section 3. For the purpose of incorporating the amendment
  155  made by this act to section 627.756, Florida Statutes, in a
  156  reference thereto, section 627.428, Florida Statutes, is
  157  reenacted to read:
  158         627.428 Attorney’s fee.—
  159         (1) Upon the rendition of a judgment or decree by any of
  160  the courts of this state against an insurer and in favor of any
  161  named or omnibus insured or the named beneficiary under a policy
  162  or contract executed by the insurer, the trial court or, in the
  163  event of an appeal in which the insured or beneficiary prevails,
  164  the appellate court shall adjudge or decree against the insurer
  165  and in favor of the insured or beneficiary a reasonable sum as
  166  fees or compensation for the insured’s or beneficiary’s attorney
  167  prosecuting the suit in which the recovery is had.
  168         (2) As to suits based on claims arising under life
  169  insurance policies or annuity contracts, no such attorney’s fee
  170  shall be allowed if such suit was commenced prior to expiration
  171  of 60 days after proof of the claim was duly filed with the
  172  insurer.
  173         (3) When so awarded, compensation or fees of the attorney
  174  shall be included in the judgment or decree rendered in the
  175  case.
  176         Section 4. Paragraph (d) of subsection (1) of section
  177  713.23, Florida Statutes, is amended to read:
  178         713.23 Payment bond.—
  179         (1)
  180         (d) In addition, a lienor who has not received payment for
  181  furnishing his or her labor, services, or materials must is
  182  required, as a condition precedent to recovery under the bond,
  183  to serve a written notice of nonpayment to the contractor and
  184  the surety. The notice must be under oath and served during the
  185  progress of the work or thereafter, but may not be served not
  186  later than 90 days after the final furnishing of labor,
  187  services, or materials by the lienor, or, with respect to rental
  188  equipment, later than 90 days after the date the rental
  189  equipment was on the job site and available for use. The notice
  190  of nonpayment must state the nature of the labor or services
  191  performed; the nature of the labor or services to be performed,
  192  if known; the materials furnished; the materials to be
  193  furnished, if known; the amount paid on account to date; the
  194  amount due; and the amount to become due, if known. All such
  195  information given must be current as of the stated date of the
  196  notice. A notice of nonpayment that includes sums for retainage
  197  must specify the portion of the amount claimed for retainage.
  198  The required. A written notice satisfies this condition
  199  precedent with respect to the payment described in the notice of
  200  nonpayment, including unpaid finance charges due under the
  201  lienor’s contract, and with respect to any other payments which
  202  become due to the lienor after the date of the notice of
  203  nonpayment. The time period for serving a written notice of
  204  nonpayment shall be measured from the last day of furnishing
  205  labor, services, or materials by the lienor and may shall not be
  206  measured by other standards, such as the issuance of a
  207  certificate of occupancy or the issuance of a certificate of
  208  substantial completion. The failure of a lienor to receive
  209  retainage sums not in excess of 10 percent of the value of
  210  labor, services, or materials furnished by the lienor is not
  211  considered a nonpayment requiring the service of the notice
  212  provided under this paragraph. If the payment bond is not
  213  recorded before commencement of construction, the time period
  214  for the lienor to serve a notice of nonpayment may at the option
  215  of the lienor be calculated from the date specified in this
  216  section or the date the lienor is served a copy of the bond.
  217  However, the limitation period for commencement of an action on
  218  the payment bond as established in paragraph (e) may not be
  219  expanded. The negligent inclusion or omission of any information
  220  in the notice of nonpayment that has not prejudiced the
  221  contractor or surety does not constitute a default that operates
  222  to defeat an otherwise valid bond claim. A lienor who serves a
  223  fraudulent notice of nonpayment forfeits his or her rights under
  224  the bond. A notice of nonpayment is fraudulent if the lienor has
  225  willfully exaggerated the amount due, willfully included a claim
  226  for work not performed or materials not furnished for the
  227  subject improvement, or prepared the notice with such willful
  228  and gross negligence as to amount to a willful exaggeration.
  229  However, a minor mistake or error in a notice of nonpayment, or
  230  a good faith dispute as to the amount due, does not constitute a
  231  willful exaggeration that operates to defeat an otherwise valid
  232  claim against the bond. The service of a fraudulent notice of
  233  nonpayment is a complete defense to the lienor’s claim against
  234  the bond. The notice under this paragraph must may be in
  235  substantially the following form:
  236  
  237                        NOTICE OF NONPAYMENT                       
  238  
  239  To ...(name of contractor and address)...
  240  ...(name of surety and address)...
  241         The undersigned notifies you that:
  242         1.The lienor he or she has furnished ...(describe labor,
  243  services, or materials)...for the improvement of the real
  244  property identified as ...(property description).... The
  245  corresponding amount now due and unpaid is $.....
  246         2.The lienor has been paid on account to date the amount
  247  of $.... for previously furnishing ...(describe labor, services,
  248  or materials)... for this improvement.
  249         3.The lienor expects to furnish ...(describe labor,
  250  service, or materials)... for this improvement in the future (if
  251  known), and the corresponding amount expected to become due is
  252  $.... (if known).
  253  
  254  I declare that I have read the foregoing Notice of Nonpayment
  255  and that the facts stated in it are true to the best of my
  256  knowledge and belief.
  257  
  258  DATED on ............, .........
  259  
  260  ...(signature and address of lienor)...
  261  
  262  STATE OF FLORIDA
  263  COUNTY OF
  264  
  265  The foregoing instrument was sworn to (or affirmed) and
  266  subscribed before me this .... day of ...., ...(year)..., by
  267  ...(name of signatory)....
  268         ...(Signature of Notary Public - State of Florida)...
  269         ...(Print, Type, or Stamp Commissioned Name of Notary
  270  Public)...
  271  
  272         Personally Known .... OR Produced Identification ....
  273         Type of Identification Produced..........................
  274  
  275         Section 5. The amendments made by this act to s. 627.756,
  276  Florida Statutes, apply only to payment or performance bonds
  277  issued on or after October 1, 2019.
  278         Section 6. This act shall take effect October 1, 2019.
  279  
  280  ================= T I T L E  A M E N D M E N T ================
  281  And the title is amended as follows:
  282         Delete everything before the enacting clause
  283  and insert:
  284                        A bill to be entitled                      
  285         An act relating to construction bonds; amending s.
  286         255.05, F.S.; requiring a notice of nonpayment to be
  287         under oath; requiring the notice to contain certain
  288         statements; specifying that certain negligent
  289         inclusions or omissions do not constitute a default
  290         that operates to default an otherwise valid bond
  291         claim; specifying that a claimant who serves a
  292         fraudulent notice of nonpayment forfeits his or her
  293         rights under a bond; providing that the service of a
  294         fraudulent notice of nonpayment is a complete defense
  295         to the claimant’s claim against the bond; requiring a
  296         notice of nonpayment to be in a prescribed form;
  297         amending s. 627.756, F.S.; providing that a provision
  298         relating to attorney fees applies to certain suits
  299         brought by contractors; deeming contractors to be
  300         insureds or beneficiaries in relation to bonds for
  301         construction contracts; reenacting s. 627.428, F.S.,
  302         relating to attorney fees; amending s. 713.23, F.S.;
  303         requiring a lienor to serve a notice of nonpayment
  304         under oath to specified entities during a certain
  305         period of time; requiring a notice of nonpayment to
  306         contain certain statements; specifying that certain
  307         negligent inclusions or omissions do not constitute a
  308         default that operates to default an otherwise valid
  309         bond claim; specifying that a lienor who serves a
  310         fraudulent notice of nonpayment forfeits his or her
  311         rights under the bond; providing that the service of a
  312         fraudulent notice of nonpayment is a complete defense
  313         to the lienor’s claim against the bond; requiring a
  314         notice of nonpayment to be in a prescribed form;
  315         providing applicability; providing an effective date.