THE AMERICAN INSURANCE COMPANY, APPELLANT,
v.
COLEY ELECTRIC SUPPLY COMPANY, INC., A CORPORATION, APPELLEE
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American Insurance Company, as corporate surety on a payment and performance bond for a construction project, appeals a judgment requiring it to pay Coley Electric Supply for materials allegedly supplied to a subcontractor. The court reversed because Coley failed to present evidence that the materials were delivered to the job site, a prerequisite for establishing a mechanics lien claim.
American Insurance is not liable because Coley failed to present evidence establishing delivery of the materials to the improvement project or their incorporation therein, which is a prerequisite to establishing a mechanics lien claim under Florida law.
[1] A surety on a payment and performance bond is obligated to pay for materials sold to a subcontractor only if those materials were delivered to the job site or specially f…
[2] The presumption of delivery and incorporation of materials into an improvement project under Florida Mechanics Lien Law does not arise without prior evidence of delivery…
Previewing 2 of 4 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“To be entitled to a lien for furnishing materials pursuant to Chapter 718, there must be presented to the court evidence establishing that the materials were delivered to the improvement project or that the materials were specially fabricated for incorporation therein.”
Establishes the legal requirement for a mechanics lien claim—evidence of delivery to the project is mandatory.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceColey Electric Supply sold materials to Moody Brothers, a subcontractor working on the Suwannee County Mall project under general contractor E. E. Dea…
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MELVIN, Judge.
The appellant-defendant brings its appeal from a final judgment entered against it and in favor of Coley Electric Supply, Inc., a corporation. The appellant-defendant will herein be referred to as American and the appellee, Coley Electric Supply Company, Inc., will be referred to as Coley.
Coley brought its action against American alleging that American, as the corporate surety on a payment and performance bond, was obligated to pay to Coley sums alleged to be due, in accordance with Florida Mechanics Lien Law, for materials sold to Moody Brothers, a subcontractor under E. E. Dean Snavely, Inc., general contractor for the construction of the Suwannee County Mall owned by Leslie W. Rogers, Inc. American issued the corporate surety payment performance bond for performance by the general contractor in accordance with Section 713.23, Florida Statutes.
Coley could have joined Moody, Snavely or Rogers as party defendants but was content to seek relief directly against American as a corporate surety, thrice removed from privity with Coley.
The final judgment entered in favor of Coley was in the sum of $44,942.74. We reverse.
An issue in the trial was whether any of the materials sold by Coley to Moody, the subcontractor, were ever delivered to the job site. The testimony reveals that no materials were ever delivered by Coley to or in the State of Florida. No witness testified as to personal knowledge of delivery to or the incorporation of any of the materials for which payment was sought in the Suwannee County Mall project in accordance with Section 713.01, Florida Statutes. The trial court stated its view of the matter to be: “. . . It is a reasonable assumption or a reasonable presumption that it was delivered to the job and incorporated and used on the project. . . . ”
To be entitled to a lien for furnishing materials pursuant to Chapter 718, there must be presented to the court evidence establishing that the materials were delivered to the improvement project or that the materials were specially fabricated for incorporation therein. See Beautyware Plumbing Sup. Co. v. Columbiad Apts., Inc., 215 So. 2d 42 (Fla. 4th DCA 1968). The provisions of Section 713.01(6), Florida Statutes, relating to the incorporation of materials in the improvement project does not come into operation until first there has been evidence to establish that such materials have been delivered to the site. Proof of delivery is the burden of he who seeks the benefit of the presumption afforded by the statute.
There being no evidence reflected in this record that would support liability on the part of American, it follows that the final judgment against it must be and the same is hereby reversed with directions that the trial court enter final judgment in favor of the American Insurance Company.
REVERSED with directions to enter judgment in accord with this opinion.
BOYER, Acting C. J., and SMITH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tuttle/White Constructors, Inc. v. Hughes Supply, Inc., 371 So. 2d 559 (Fla. 4th DCA 1979)…tion of materials in the improvement project does not come into operation until after evidence sufficient to establish that such materials have been delivered to the site has been presented. American Insurance Co. v. Coley Electric Supply Co., Inc., 354 So. 2d 390 (Fla. 1st DCA 1978). The burden is on the claimant to establish that such materials were actually delivered to the construction site before the benefit of the statutory presumption may be afforded the lienor. American Insurance Co. v. Coley Electric…
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Oolite Indus., Inc. v. Millman Constr. Co., Inc., 501 So. 2d 655 (Fla. 3d DCA 1987)…335 at 338 (Fla.1949).) Therefore, “to be entitled to a lien for furnishing materials, there must be evidence establishing ... that the materials were specially fabricated for incorporation.” American Insurance Co. v. Coley Electric Supply Co. Inc., 354 So. 2d 390, 391 (Fla. 1st DCA 1978) and Beautyware Plumbing Supply Co. v. Columbiad Apartments, Inc., 215 So. 2d 42, 44 (Fla. 4th DCA 1968). Specially fabricated materials are designed for a particular project, no actual delivery of the materials to the job si…
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Fla. E. Coast Props., Inc. v. Coastal Constr. Prods., Inc., 553 So. 2d 705 (Fla. 3d DCA 1989)…actually delivered to the construction site in order to obtain the benefit of the statutory presumption. Tuttle/White Constructors, Inc. v. Hughes Supply, Inc., 371 So. 2d 559, 564-65 (Fla. 4th DCA 1979); American Ins. Co. v. Coley Elec. Supply Co., 354 So. 2d 390, 391 (Fla. 1st DCA 1978); Beautyware Plumbing Supply Co. v. Columbiad Apartments, Inc., 215 So. 2d 42, 44 (Fla. 4th DCA 1968); see Clutter Construction Corp. v. State ex rel. Westinghouse Elec. Corp., 139 So. 2d 426, 428 (Fla.1962). We have sympathy…
Authorities Cited
- Beautyware Plumbing Supply Co., Inc. v. Columbiad Apts., Inc., 215 So. 2d 42 (Fla. 4th DCA 1968)