AMERICAN CAST IRON PIPE COMPANY, APPELLANT,
v.
PEABODY-PETERSEN CO., AN ILLINOIS CORPORATION, ET AL., APPELLEES
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The court held that the bond was a common-law performance bond, not subject to statutory notice requirements, and therefore the dismissal was improper.
A supplier to a subcontractor on a public works project sued the principal and surety of the contract bond after its suit was dismissed for failing to…
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OWEN, Judge.
Appellant, a supplier to a subcontractor on a public-works contract, suffered dismissal with prejudice of its suit against the principal and the surety of the contract bond because of the plaintiff’s failure to comply with the notice requirements and time limitations of Fla.Stat. § 255.05(2) (1973).
The facts in this case are substantially identical to those in the case of United Bonding Insurance Company v. City of Holly Hill, 249 So. 2d 720 (Fla.App. 1st 1971), with the exception that the plaintiff in this case was a materialman to a subcontractor whereas in the United Bonding case, supra, the plaintiff was a material-man to the contractor. Appellee contends that this is a significant distinction be-^ tween the two cases. However, its argument in support of its contention misses the mark. The issue here, simply stated, is whether the bond in this case was a common-law performance bond and thus, under the holding of the United Bonding case, supra, not subject to the notice requirements and time limitations set out in Fla. Stat. § 255.05(2) (1973), or whether the bond was a statutory bond to which Fla. Stat. § 255.05(2) (1973) applied. The distinction for which appellant contends simply does not affect this issue.
We conclude that the bond in this case was (just as was the bond in United Bonding, supra) a common-law performance bond. The order dismissing without leave to amend Counts I and II of appellant’s first amended complaint is reversed and this cause remanded for further proceedings.
Reversed and remanded.
WALDEN, C. J. and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sw. Fla. Water Mgmt. Dist. v. Miller Constr. Co., 355 So. 2d 1258 (Fla. 2d DCA 1978)…otice did not comply with the requisites of Section 255.05(2). The notice requirements of Section 255.05(2) are not binding upon those claiming redress against a common law obligation. See American [*1261] Cast Iron Pipe Co. v. Peabody-Petersen Co., 328 So. 2d 229 (Fla. 4th DCA 1976). Since we have construed the bond in this case to be common law in nature and not statutory, it is unnecessary for us to address this issue. Reversed and remanded for further proceedings consistent with this opinion. GRIMES, Ac…1 / 2
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Am. Home Assurance Co. v. Plaza Materials Corp., 826 So. 2d 358 (Fla. 2d DCA 2002)…did not abolish common law bonds, which were not subject to the same notice and time requirements. See, e.g., Southwest Fla. Water Mgmt. Dist. v. Miller Constr. Co., 355 So. 2d 1258 (Fla. 2d DCA 1978); Am. Cast Iron Pipe Co. v. Peabody-Petersen Co., 328 So. 2d 229 (Fla. 4th DCA 1976). In 1980, the legislature amended the Act to add two significant provisions. See ch. 80-32, § 1, Laws of Fla., as codified in § 255.05(4), (6). Section 255.05(4) currently states: (4) The payment provisions of all bonds furnish…
Authorities Cited
- 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)