PRECON CORPORATION
v.
ARCH INSURANCE COMPANY, BRANDES DESIGN-BUILD, INC., KEVIN M. KLAUS, AND CAROL J. KLAUS
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Precon Corporation appealed a summary judgment dismissing its complaint against Arch Insurance Company for allegedly filing suit outside the one-year statute of limitations for actions against payment bond sureties. The Florida Fifth District Court of Appeal reversed, finding genuine issues of material fact regarding when the one-year period commenced that precluded summary judgment.
The trial court erred in entering summary judgment because genuine issues of material fact exist regarding whether the complaint was filed within one year after performance of the labor. The case is reversed and remanded for further proceedings to resolve the factual dispute about when the limitations period commenced.
“An action, except an action for recovery of retainage, must be instituted against the . . . surety on the payment bond or the payment provisions of a combined payment and performance bond within 1 year after the performance of the labor or completion of delivery of the materials or supplies.”
Establishes the one-year statute of limitations applicable to actions against payment bond sureties.
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Join FLexlaw to unlock all legal intelligencePrecon Corporation filed a complaint against Arch Insurance Company (surety on a payment bond) and other defendants related to a construction project.…
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WALLIS, J.
Appellant, Precon Corporation, appeals the Final Summary Judgment entered in favor of Appellee, Arch Insurance Company, after the trial court found that Appellant's complaint was filed outside of the one year statute of limitations set forth in section 255.05(10), Florida Statutes (2017). We agree with Appellant that there are genuine issues of material fact regarding whether the complaint was filed within one year after the performance of the labor. See § 255.05(10), Fla. Stat. ("An action, except an action for recovery of retainage, must be instituted against the . . . surety on the payment bond or the payment provisions of a combined payment and performance bond within 1 year after the performance of the labor or completion of delivery of the materials or supplies."); see also § 255.05(2)(a)2., Fla. Stat. ("The time periods for service of a notice of nonpayment or for bringing an action against a contractor or a surety shall be measured from the last day of furnishing labor, services, or materials by the claimant and may not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of substantial completion."). Therefore, we reverse and remand for further proceedings. See Dr. Rooter Supply & Serv. v. McVay, 226 So. 3d 1068, 1075–76 (Fla. 5th DCA 2017) (reversing entry of summary judgment where there were remaining issues of material fact).
REVERSED and REMANDED.
TRAVER and NARDELLA, JJ., concur. 2
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- Doctor Rooter Supply & Serv. v. McVay, 226 So. 3d 1068 (Fla. 5th DCA 2017)