THE SCHOOL BOARD OF VOLUSIA COUNTY, APPELLANT,
v.
FIDELITY COMPANY OF MARYLAND, APPELLEE
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The School Board of Volusia County sued surety Fidelity Company of Maryland on a performance bond executed for roofing work at a high school, but the suit was barred by the five-year statute of limitations applicable to actions on written contracts. The court affirmed dismissal, holding that latent defects discovered years after completion do not defer the statute of limitations under Florida law.
The suit is barred by the five-year statute of limitations applicable to actions on contracts, obligations, or liabilities founded on written instruments. The statute of limitations ran from either the bond's execution or the certificate of completion in 1975, and no comparable deferral applies to latent undiscovered defects in the performance bond statute as exists in the design and construction statute.
[1] A suit on a common law performance bond is an action founded on a written instrument with a five-year statute of limitations.
[2] The statute of limitations for actions on a written instrument does not provide for deferral or accrual of a cause of action for latent undiscovered defects.
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Join FLexlaw to unlock all legal intelligence“a suit on a common law performance bond is an action on a "contract, obligation, or liability founded on a written instrument." § 95.11(2)(b). That period of limitations is five years.”
Establishes the applicable statute of limitations for performance bond claims
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Join FLexlaw to unlock all legal intelligenceFidelity executed a performance bond in 1974 for Snead Construction Company's roofing and installation work on Spruce Creek High School. The school wa…
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SHARP, Judge.
The School Board of Volusia County (the Board) appeals from the dismissal of its complaint against Fidelity Company of Maryland (Fidelity). Fidelity was the surety that executed a performance bond for Snead Construction Company, the general contractor for the roofing and installation work done on the Board’s new Spruce Creek High School. We affirm.
The performance bond was executed in 1974; and the school was substantially completed and accepted by the Board as owner on June 24, 1975. Latent defects in the roof of the school appeared no earlier than 1979. This suit was filed on July 11, 1983.
Although the lawsuit may have been timely as to the roofing contractor, roofing supplier, the architect and other defendants, § 95.11(3)(c), Fla.Stat. (1983),1 it is well established that a suit on a common law performance bond2 is an action on a “contract, obligation, or liability founded on a written instrument.” § 95.11(2)(b). That period of limitations is five years. United Bonding Insurance Company v. City of Holly Hill, 249 So. 2d 720 (Fla. 1st DCA 1971); see also Balboa Insurance Company v. W.C.B. Associates, Inc., 390 So. 2d 172 (Fla. 5th DCA 1980); General Electric Company v. Commercial Standard Insurance Company, 335 So. 2d 624 (Fla. 1st DCA), cert. denied, 342 So. 2d 1100 (Fla.1976); but see Florida Keys Community College v. Insurance Company of North America, 456 So. 2d 1250 (Fla. 3rd DCA 1984).
There is no comparable deferral of, accrual of a cause of action for latent undiscovered defects in section 95.11(2)(b), unlike the four year statute of limitations found in section 95.11(3)(e). Therefore, whether the statute of limitations began to run when the bond was executed or when the certificate of completion was accepted by the Board in 1975, in any event, it had run in this case.3 This results in the anomaly of being able to hold an “obligee” liable under a performance bond at a time the suit against the surety has been time-barred. If this is not the intent of the Legislature, then it should make the necessary statutory changes. We cannot reach any other conclusion unless we depart from the clear wording of the statutes and the substantial precedent interpreting them.
Because we base our decision on application of the statute of limitations we do not reach the additional issue raised by the parties as to whether latent defects are covered under a performance bond after the building is substantially completed. See Florida Board of Regents v. Fidelity & Deposit Company of Maryland, 416 So. 2d 30 (Fla. 5th DCA 1982); but see Florida Keys Community College; School Board of Pinellas County v. St. Paul Fire and Marine Insurance Company, 449 So. 2d 872 (Fla. 2d DCA), rev. denied, 458 So. 2d 274 (Fla.1984).
AFFIRMED.
COWART, J., concurs.
DAUKSCH, J., concurs in conclusion only.
. This statute provides for a four year statute of limitation for “An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the . defect is discovered or should have been discovered with the exercise of due diligence."
. We assume for purposes of this appeal that the bond involved in this case is a common law bond rather than a statutory bond, § 255.05, Fla.Stat. (1983). The parties did not address this issue, but it is not material to our decision.
. Florida Board of Regents v. Fidelity & Deposit Company of Maryland, 416 So. 2d 30 (Fla. 5th DCA 1982); District School Board of Desoto County v. Safeco Insurance Company, 434 So. 2d 38 (Fla. 2d DCA 1983).
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Fed. Ins. Co. & McMerit Constr. Co. v. The Sw. Fla. Ret. Ctr., Inc., 707 So. 2d 1119 (Fla. 1998)…WELLS, Justice. We have for review Southwest Florida Retirement Center v. Federal Insurance Co., 682 So. 2d 1130 (Fla. 2d DCA 1996), which expressly and directly conflicts with School Board of Volusia County v. Fidelity Co. of Maryland, 468 So. 2d 431 (Fla. 5th DCA 1985). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. In 1981, Southwest Florida Retirement Center, Inc., (Southwest) contracted with McMerit Construction Company (general contractor), n/k/a M…1 / 2
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Nat'l Fire Ins. Co. OF Hartford v. L.J. Clark Constr. Co., Inc., 579 So. 2d 743 (Fla. 4th DCA 1991)…limitations is void. It is well established that a suit on a common law performance bond is subject to the five year limitation period in section 95.-ll(2)(b), Florida Statutes (1990 Supp.). School Bd. of Volusia County v. Fidelity Co. of Maryland, 468 So. 2d 431, 432 (Fla. 5th DCA 1985). Thus, the argument that the bond’s limitation period validly expands coverage over that provided by section 713.23 is illogical when considered in conjunction with section 95.03 which makes that provision void. In short, to…
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The Sw. Fla. Ret. Ctr., Inc. v. Fed. Ins. Co., 682 So. 2d 1130 (Fla. 2d DCA 1996)…xtensive, the limitations period for an action against the surety did not begin to run until discovery of the latent defects constituting the breach of warranty. The trial judge, relying on School Board of Volusia County v. Fidelity Co. of Maryland, 468 So. 2d 431 (Fla. 5th DCA 1985), was persuaded that because section 95.11(2)(b) does not contain a tolling provision for latent defects as does section 95.11(3)(c), relating to actions founded on construction of improvements to real property, appellant’s cause…1 / 3
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ulysses Jones v. State, 416 So. 2d 30 (Fla. 5th DCA 1982)
- State v. Reese, 249 So. 2d 720 (Fla. 2d DCA 1971)
- United Bonding Ins. Co. v. City OF Holly Hill, 249 So. 2d 720 (Fla. 1st DCA 1971)
- The Sch. Bd. OF Pinellas Cnty. v. ST. Paul Fire & Marine Ins. Co., 449 So. 2d 872 (Fla. 2d DCA 1984)
- Gen. Elec. Co. v. Commercial Standard Ins. Co., 335 So. 2d 624 (Fla. 1st DCA 1976)
- Lashinsky v. First Fed. Sav. & Loan Ass'n OF Putnam Cnty., 434 So. 2d 38 (Fla. 5th DCA 1983)
- Dist. Sch. Bd. OF Desoto Cnty. v. Safeco Ins. Co., 434 So. 2d 38 (Fla. 2d DCA 1983)
- Pearline J. Walls v. State, 390 So. 2d 172 (Fla. 5th DCA 1980)
- Fla. Keys Cmty. Coll. v. Ins. Co. OF N. Am. & Fid. Fire Ins. Co., 456 So. 2d 1250 (Fla. 3d DCA 1984)