CINCINNATI INSURANCE COMPANY ET AL., APPELLANTS,
v.
DAVID MARTIN PUTNAM AND CENTURY FEDERAL SAVINGS AND LOAN ASSOCIATION OF ORMOND BEACH, ETC., ET AL., APPELLEES
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The appellate court reversed a summary judgment, finding a genuine issue of material fact regarding a lien claim against a surety. The core issue was whether the claimant had a direct contractual relationship with the property owner or the contractor, which would determine the surety's liability.
Yes, a genuine issue of material fact exists. The claimant's entitlement to enforce a lien against the surety depends on whether the claimant contracted directly with the property owner or the general contractor.
[1] A claimant supplying architectural services is exempt from providing notice of a claim of lien to the owner under Florida Statutes section 713.06(2) when the exemption fo…
[2] To enforce a claim of lien by direct action against a surety under Florida Statutes section 713.23, a supplier of architectural services must establish privity with the o…
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Join FLexlaw to unlock all legal intelligence“upon due consideration of the briefs, record on appeal and oral argument we are of the opinion that a genuine issue of material fact exists with regard to appel-lee Putnam’s claim of lien for architectural services against the surety, Cincinnati Insurance Company, appellant.”
Establishes the core finding of the appellate court.
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Join FLexlaw to unlock all legal intelligenceDavid Putnam claimed a lien for architectural services against Cincinnati Insurance Company, the surety for a construction project. The trial court fo…
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PER CURIAM.
Upon due consideration of the briefs, record on appeal and oral argument we are of the opinion that a genuine issue of material fact exists with regard to appel-lee Putnam’s claim of lien for architectural services against the surety, Cincinnati Insurance Company, appellant. The trial court correctly determined that appellee Putnam was not required to give notice of claim of lien to the owner, Royal Oak Properties, Inc., appellee, as provided by section 713.06(2), Florida Statutes, by virtue of an exemption granted for professional services as set forth in section 713.03(3), Florida Statutes. Royal Oak, owner, had previously entered into a contract with Brody Construction, Inc., appellee-contractor, for the construction of condominiums. Cincinnati, appellant-surety, executed a performance and payment bond with Brody as principal and Royal Oak as obligee.
In our opinion in order for Putnam as a supplier of architectural services for the project to be entitled to enforce his claim of lien by direct action against Cincinnati, surety, under section 713.23, Florida Statutes, it was necessary for Putnam to establish that he was in privity with Royal Oak, the obligee under the bond. The liability of the surety is ordinarily measured by the liability of the principal (Brody) and generally the surety is not liable if the principal is not liable. 30 Fla.Jur., Surety-ships, sec. 14; F.S. § 713.23. If Putnam’s agreement to furnish architectural services was with Royal Oak Properties then Cincinnati as surety for Brody would not be liable to Putnam; however, if it were shown that Putnam’s agreement was with Brody then Putnam’s action against Cincinnati would be proper and in accordance with section 713.23, Florida Statutes. Herein lies the genuine issue of material fact that must be resolved before the liability of Cincinnati can be determined. Accordingly, the summary final judgment is reversed and the cause remanded for further proceedings consistent herewith.
REVERSED AND REMANDED.
MAGER, C. J., ALDERMAN, J., and WILLIAMS, W. C., Ill, Associate Judge, concur.
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OBS Co., Inc. v. Pace Constr. Corp., 558 So. 2d 404 (Fla. 1990)…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 courts have properly applied the general principle that a surety’s obligation under its bond agreement is commensurate with that of the general contractor under the subcontract. That principle, however, although ap…
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AETNA Cas. & Sur. Co. v. Warren Bros. Co., 355 So. 2d 785 (Fla. 1978)…ompany, stood in the shoes of Peacock for the purpose of guaranteeing payment to respondent according to the subcontract’s terms. Cf. Scott v. National City Bank of Tampa, 107 Fla. 810, 139 So. 367 (Fla.1931); Cincinnati Insurance Company v. Putnam, 335 So. 2d 855 (Fla. 4th DCA 1976); National Union Fire Insurance Co. of Pittsburgh, Pennsylvania v. Robuck, 203 So .2d 204 (Fla. 1st DCA 1967). Because petitioner’s obligation under its bond agreement was commensurate with that of Peacock under the subcontract, t…
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Pace Constr. Corp. v. OBS Co., Inc., 531 So. 2d 737 (Fla. 2d DCA 1988)…ntractor under a payment bond is no greater than the contractor’s obligation to the subcontractor under the subcontract agreement. See Aetna Casualty & Surety Co. v. Warren Brothers Co., 355 So. 2d 785 (Fla.1978); Cincinnati Insurance Co. v. Putnam, 335 So. 2d 855 (Fla. 4th DCA 1976). We, accordingly, reverse and remand for proceedings consistent herewith. REVERSED AND REMANDED. DANAHY, A.C.J., and THREADGILL, J., concur.…
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