UNITED STATES FIDELITY AND GUARANTY CO., AND MASCRETE, INC., APPELLANT,
v.
MIAMI SHEET METAL PRODUCTS, INC., AND ARTIC AIR CONDITION CORPORATION, APPELLEES
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A payment bond surety may raise the defense of negligent performance by a subcontractor on a public construction project, contrary to the trial court's summary judgment.
A surety on a payment bond issued pursuant to Florida Statutes § 255.05(1)(a) for a public construction project may raise the defense of negligent performance by a subcontractor.
[1] A surety on a payment bond for a public construction project may assert the defense of negligent performance by a subcontractor, as the surety stands in the place of the…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a surety on a payment bond issued in connection with a construction project takes the place of the owner and his property and is entitled to raise the same defenses as the owner in an action brought by a contractor or a subcontractor”
General principle establishing surety's defensive rights in construction payment bond cases
Appellant, a payment bond surety, appealed a summary judgment entered in favor of appellees, who were public project subcontractors.…
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PER CURIAM.
Appellant, defendant payment bond surety, seeks review of a final summary judgment entered in favor of appellees, public project subcontractors.
We hold that a surety on a payment bond, issued pursuant to Section 255.-05(l)(a), Florida Statutes (1985), in connection with a public construction project, may raise the defense of negligent performance by a subcontractor on the project. Compare Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla. 3d DCA 1970); § 713.01(3), Fla.Stat. (1985). The trial court’s reliance on Coordinated Constructors v. Florida Fill, Inc., 387 So. 2d 1006 (Fla. 3d DCA 1980), was misplaced because the decision in that case turned on a statutory provision that permitted only an “owner” to raise the defense of “proper payment” in a mechanic’s lien action. No such statutory limitation has been made to appear as to a negligence defense. Generally, a surety on a payment bond issued in connection with a construction project takes the place of the owner and his property and is entitled to raise the same defenses as the owner in an action brought by a contractor or a subcontractor. Bear v. Duval Lumber Company, 112 Fla. 240, 150 So. 614 (Fla.1933); 72 C.J.S. Principal and Surety, § 191, at 319 (1987).
No error is urged in the summary judgment in favor of the appellee, Artie Air. Therefore, for the reasons above stated, the summary judgment in favor of Artie Air is affirmed. The summary judgment in favor of Miami Sheet Metal is reversed and the cause remanded to the trial court for further proceedings on the claim made by it.
Affirmed in part, reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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OBS Co., Inc. v. Pace Constr. Corp., 558 So. 2d 404 (Fla. 1990)…if the debt is not due because of faulty workmanship, full payment, or the like, then the surety may invoke the contention that it is not liable because the principal is not. United States Fidelity & Guaranty Co. v. Miami Sheet Metal Products, Inc., 516 So. 2d 29 (Fla. 3d DCA 1987). Similarly, if the principal is not liable because it was not in privity with the entity claiming under the bond, the surety is not liable. Cincinnati Insurance Co. v. Putnam, 335 So. 2d 855 (Fla. 4th DCA 1976). In such cases cour…
Authorities Cited
- Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla. 3d DCA 1970)
- Bear v. Duval Lumber Co., 112 Fla. 240 (Fla. 1933)
- Coordinated Constructors v. Fla. Fill, Inc., 387 So. 2d 1006 (Fla. 3d DCA 1980)