Florida Senate - 2019                             CS for SB 1200
       
       
        
       By the Committee on Judiciary; and Senator Stargel
       
       
       
       
       
       590-03469-19                                          20191200c1
    1                        A bill to be entitled                      
    2         An act relating to construction bonds; amending s.
    3         255.05, F.S.; requiring a notice of nonpayment to be
    4         under oath; requiring the notice to contain certain
    5         statements; specifying that certain negligent
    6         inclusions or omissions do not constitute a default
    7         that operates to default an otherwise valid bond
    8         claim; specifying that a claimant who serves a
    9         fraudulent notice of nonpayment forfeits his or her
   10         rights under a bond; providing that the service of a
   11         fraudulent notice of nonpayment is a complete defense
   12         to the claimant’s claim against the bond; requiring a
   13         notice of nonpayment to be in a prescribed form;
   14         amending s. 627.756, F.S.; providing that a provision
   15         relating to attorney fees applies to certain suits
   16         brought by contractors; deeming contractors to be
   17         insureds or beneficiaries in relation to bonds for
   18         construction contracts; reenacting s. 627.428, F.S.,
   19         relating to attorney fees; amending s. 713.23, F.S.;
   20         requiring a lienor to serve a notice of nonpayment
   21         under oath to specified entities during a certain
   22         period of time; requiring a notice of nonpayment to
   23         contain certain statements; specifying that certain
   24         negligent inclusions or omissions do not constitute a
   25         default that operates to default an otherwise valid
   26         bond claim; specifying that a lienor who serves a
   27         fraudulent notice of nonpayment forfeits his or her
   28         rights under the bond; providing that the service of a
   29         fraudulent notice of nonpayment is a complete defense
   30         to the lienor’s claim against the bond; requiring a
   31         notice of nonpayment to be in a prescribed form;
   32         providing applicability; providing an effective date.
   33          
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Paragraph (a) of subsection (2) of section
   37  255.05, Florida Statutes, is amended to read:
   38         255.05 Bond of contractor constructing public buildings;
   39  form; action by claimants.—
   40         (2)(a)1. If a claimant is no longer furnishing labor,
   41  services, or materials on a project, a contractor or the
   42  contractor’s agent or attorney may elect to shorten the time
   43  within which an action to enforce any claim against a payment
   44  bond must be commenced by recording in the clerk’s office a
   45  notice in substantially the following form:
   46  
   47                     NOTICE OF CONTEST OF CLAIM                    
   48                        AGAINST PAYMENT BOND                       
   49  
   50  To: ...(Name and address of claimant)...
   51  
   52         You are notified that the undersigned contests your notice
   53  of nonpayment, dated ............, ........, and served on the
   54  undersigned on ............, ........, and that the time within
   55  which you may file suit to enforce your claim is limited to 60
   56  days after the date of service of this notice.
   57  
   58         DATED on ............, .........
   59  
   60  Signed: ...(Contractor or Attorney)...
   61  
   62  The claim of a claimant upon whom such notice is served and who
   63  fails to institute a suit to enforce his or her claim against
   64  the payment bond within 60 days after service of such notice is
   65  shall be extinguished automatically. The contractor or the
   66  contractor’s attorney shall serve a copy of the notice of
   67  contest to the claimant at the address shown in the notice of
   68  nonpayment or most recent amendment thereto and shall certify to
   69  such service on the face of the notice and record the notice.
   70         2. A claimant, except a laborer, who is not in privity with
   71  the contractor shall, before commencing or not later than 45
   72  days after commencing to furnish labor, services, or materials
   73  for the prosecution of the work, serve furnish the contractor
   74  with a written notice that he or she intends to look to the bond
   75  for protection. A claimant who is not in privity with the
   76  contractor and who has not received payment for furnishing his
   77  or her labor, services, or materials shall serve a written
   78  notice of nonpayment on deliver to the contractor and on to the
   79  surety written notice of the performance of the labor or
   80  delivery of the materials or supplies and of the nonpayment. The
   81  notice of nonpayment shall be under oath and served during the
   82  progress of the work or thereafter but may not be served earlier
   83  than 45 days after the first furnishing of labor, services, or
   84  materials by the claimant or later than 90 days after the final
   85  furnishing of the labor, services, or materials by the claimant
   86  or, with respect to rental equipment, not later than 90 days
   87  after the date that the rental equipment was last on the job
   88  site available for use. The notice of nonpayment must state the
   89  nature of the labor or services performed; the nature of the
   90  labor or services to be performed, if known; the materials
   91  furnished; the materials to be furnished, if known; the amount
   92  paid on account to date; the amount due; and the amount to
   93  become due, if known. All such information given must be current
   94  as of the stated date of the notice. Any notice of nonpayment
   95  served by a claimant who is not in privity with the contractor
   96  which includes sums for retainage must specify the portion of
   97  the amount claimed for retainage. An action for the labor,
   98  services, or materials, or supplies may not be instituted
   99  against the contractor or the surety unless the notice to the
  100  contractor and notice of nonpayment have been served, if
  101  required by this section. Notices required or permitted under
  102  this section must shall be served in accordance with s. 713.18.
  103  A claimant may not waive in advance his or her right to bring an
  104  action under the bond against the surety. In any action brought
  105  to enforce a claim against a payment bond under this section,
  106  the prevailing party is entitled to recover a reasonable fee for
  107  the services of his or her attorney for trial and appeal or for
  108  arbitration, in an amount to be determined by the court, which
  109  fee must be taxed as part of the prevailing party’s costs, as
  110  allowed in equitable actions. The time periods for service of a
  111  notice of nonpayment or for bringing an action against a
  112  contractor or a surety shall be measured from the last day of
  113  furnishing labor, services, or materials by the claimant and may
  114  not be measured by other standards, such as the issuance of a
  115  certificate of occupancy or the issuance of a certificate of
  116  substantial completion. The negligent inclusion or omission of
  117  any information in the notice of nonpayment that has not
  118  prejudiced the contractor or surety does not constitute a
  119  default that operates to defeat an otherwise valid bond claim. A
  120  claimant who serves a fraudulent notice of nonpayment forfeits
  121  his or her rights under the bond. A notice of nonpayment is
  122  fraudulent if the claimant has willfully exaggerated the amount
  123  due, willfully included a claim for work not performed or
  124  materials not furnished for the subject improvement, or prepared
  125  the notice with such willful and gross negligence as to amount
  126  to a willful exaggeration. However, a minor mistake or error in
  127  a notice of nonpayment, or a good faith dispute as to the amount
  128  due, does not constitute a willful exaggeration that operates to
  129  defeat an otherwise valid claim against the bond. The service of
  130  a fraudulent notice of nonpayment is a complete defense to the
  131  claimant’s claim against the bond. The notice of nonpayment
  132  under this subparagraph must be in substantially the following
  133  form:
  134  
  135                        NOTICE OF NONPAYMENT                       
  136  
  137  To: ...(name of contractor and address)...
  138  ...(name of surety and address)...
  139  The undersigned claimant notifies you that:
  140         1.Claimant has furnished ...(describe labor, services, or
  141  materials)... for the improvement of the real property
  142  identified as ...(property description).... The corresponding
  143  amount now due and unpaid is $ .....
  144         2.Claimant has been paid on account to date the amount of
  145  $ .... for previously furnishing ...(describe labor, service, or
  146  materials)... for this improvement.
  147         3.Claimant expects to furnish ...(describe labor, service,
  148  or materials)... for this improvement in the future (if known),
  149  and the corresponding amount expected to become due is $ ....
  150  (if known).
  151  
  152  I declare that I have read the foregoing Notice of Nonpayment
  153  and that the facts stated in it are true to the best of my
  154  knowledge and belief.
  155  
  156  DATED on ............, .........
  157  
  158  ...(signature and address of claimant)...
  159  
  160  STATE OF FLORIDA
  161  COUNTY OF
  162  
  163  The foregoing instrument was sworn to (or affirmed) and
  164  subscribed before me this .... day of ...., ...(year)..., by
  165  ...(name of signatory)....
  166         ...(Signature of Notary Public - State of Florida)...
  167         ...(Print, Type, or Stamp Commissioned Name of Notary
  168  Public)...
  169  
  170         Personally Known .... OR Produced Identification ....
  171         Type of Identification Produced..........................
  172  
  173         Section 2. Subsection (1) of section 627.756, Florida
  174  Statutes, is amended to read:
  175         627.756 Bonds for construction contracts; attorney fees in
  176  case of suit.—
  177         (1) Section 627.428 applies to suits brought by owners,
  178  contractors, subcontractors, laborers, and materialmen against a
  179  surety insurer under payment or performance bonds written by the
  180  insurer under the laws of this state to indemnify against
  181  pecuniary loss by breach of a building or construction contract.
  182  Owners, contractors, subcontractors, laborers, and materialmen
  183  shall be deemed to be insureds or beneficiaries for the purposes
  184  of this section.
  185         Section 3. For the purpose of incorporating the amendment
  186  made by this act to section 627.756, Florida Statutes, in a
  187  reference thereto, section 627.428, Florida Statutes, is
  188  reenacted to read:
  189         627.428 Attorney’s fee.—
  190         (1) Upon the rendition of a judgment or decree by any of
  191  the courts of this state against an insurer and in favor of any
  192  named or omnibus insured or the named beneficiary under a policy
  193  or contract executed by the insurer, the trial court or, in the
  194  event of an appeal in which the insured or beneficiary prevails,
  195  the appellate court shall adjudge or decree against the insurer
  196  and in favor of the insured or beneficiary a reasonable sum as
  197  fees or compensation for the insured’s or beneficiary’s attorney
  198  prosecuting the suit in which the recovery is had.
  199         (2) As to suits based on claims arising under life
  200  insurance policies or annuity contracts, no such attorney’s fee
  201  shall be allowed if such suit was commenced prior to expiration
  202  of 60 days after proof of the claim was duly filed with the
  203  insurer.
  204         (3) When so awarded, compensation or fees of the attorney
  205  shall be included in the judgment or decree rendered in the
  206  case.
  207         Section 4. Paragraph (d) of subsection (1) of section
  208  713.23, Florida Statutes, is amended to read:
  209         713.23 Payment bond.—
  210         (1)
  211         (d) In addition, a lienor who has not received payment for
  212  furnishing his or her labor, services, or materials must is
  213  required, as a condition precedent to recovery under the bond,
  214  to serve a written notice of nonpayment to the contractor and
  215  the surety. The notice must be under oath and served during the
  216  progress of the work or thereafter, but may not be served not
  217  later than 90 days after the final furnishing of labor,
  218  services, or materials by the lienor, or, with respect to rental
  219  equipment, later than 90 days after the date the rental
  220  equipment was on the job site and available for use. The notice
  221  of nonpayment must state the nature of the labor or services
  222  performed; the nature of the labor or services to be performed,
  223  if known; the materials furnished; the materials to be
  224  furnished, if known; the amount paid on account to date; the
  225  amount due; and the amount to become due, if known. All such
  226  information given must be current as of the stated date of the
  227  notice. A notice of nonpayment that includes sums for retainage
  228  must specify the portion of the amount claimed for retainage.
  229  The required. A written notice satisfies this condition
  230  precedent with respect to the payment described in the notice of
  231  nonpayment, including unpaid finance charges due under the
  232  lienor’s contract, and with respect to any other payments which
  233  become due to the lienor after the date of the notice of
  234  nonpayment. The time period for serving a written notice of
  235  nonpayment shall be measured from the last day of furnishing
  236  labor, services, or materials by the lienor and may shall not be
  237  measured by other standards, such as the issuance of a
  238  certificate of occupancy or the issuance of a certificate of
  239  substantial completion. The failure of a lienor to receive
  240  retainage sums not in excess of 10 percent of the value of
  241  labor, services, or materials furnished by the lienor is not
  242  considered a nonpayment requiring the service of the notice
  243  provided under this paragraph. If the payment bond is not
  244  recorded before commencement of construction, the time period
  245  for the lienor to serve a notice of nonpayment may at the option
  246  of the lienor be calculated from the date specified in this
  247  section or the date the lienor is served a copy of the bond.
  248  However, the limitation period for commencement of an action on
  249  the payment bond as established in paragraph (e) may not be
  250  expanded. The negligent inclusion or omission of any information
  251  in the notice of nonpayment that has not prejudiced the
  252  contractor or surety does not constitute a default that operates
  253  to defeat an otherwise valid bond claim. A lienor who serves a
  254  fraudulent notice of nonpayment forfeits his or her rights under
  255  the bond. A notice of nonpayment is fraudulent if the lienor has
  256  willfully exaggerated the amount due, willfully included a claim
  257  for work not performed or materials not furnished for the
  258  subject improvement, or prepared the notice with such willful
  259  and gross negligence as to amount to a willful exaggeration.
  260  However, a minor mistake or error in a notice of nonpayment, or
  261  a good faith dispute as to the amount due, does not constitute a
  262  willful exaggeration that operates to defeat an otherwise valid
  263  claim against the bond. The service of a fraudulent notice of
  264  nonpayment is a complete defense to the lienor’s claim against
  265  the bond. The notice under this paragraph must may be in
  266  substantially the following form:
  267  
  268                        NOTICE OF NONPAYMENT                       
  269  
  270  To ...(name of contractor and address)...
  271  ...(name of surety and address)...
  272         The undersigned notifies you that:
  273         1.The lienor he or she has furnished ...(describe labor,
  274  services, or materials)...for the improvement of the real
  275  property identified as ...(property description).... The
  276  corresponding amount now due and unpaid is $.....
  277         2.The lienor has been paid on account to date the amount
  278  of $.... for previously furnishing ...(describe labor, services,
  279  or materials)... for this improvement.
  280         3.The lienor expects to furnish ...(describe labor,
  281  service, or materials)... for this improvement in the future (if
  282  known), and the corresponding amount expected to become due is
  283  $.... (if known).
  284  
  285  I declare that I have read the foregoing Notice of Nonpayment
  286  and that the facts stated in it are true to the best of my
  287  knowledge and belief.
  288  
  289  DATED on ............, .........
  290  
  291  ...(signature and address of lienor)...
  292  
  293  STATE OF FLORIDA
  294  COUNTY OF
  295  
  296  The foregoing instrument was sworn to (or affirmed) and
  297  subscribed before me this .... day of ...., ...(year)..., by
  298  ...(name of signatory)....
  299         ...(Signature of Notary Public - State of Florida)...
  300         ...(Print, Type, or Stamp Commissioned Name of Notary
  301  Public)...
  302  
  303         Personally Known .... OR Produced Identification ....
  304         Type of Identification Produced..........................
  305  
  306         Section 5. The amendments made by this act to s. 627.756,
  307  Florida Statutes, apply only to payment or performance bonds
  308  issued on or after October 1, 2019.
  309         Section 6. This act shall take effect October 1, 2019.