Supreme Court of Florida
____________
No. SC02-1257
____________
AMERICAN HOME ASSURANCE COMPANY,
Petitioner,
vs.
PLAZA MATERIALS CORPORATION,
Respondent.
[July 7, 2005]
CORRECTED OPINION
PER CURIAM.
We have for review a decision of a district court of appeal on the following
question, which the court certified to be of great public importance:
IF A STATUTORY PAYMENT BOND DOES NOT CONTAIN
REFERENCE TO THE NOTICE AND TIME LIMITATION
PROVISIONS OF SECTION 255.05(6), ARE THOSE NOTICE
AND TIME LIMITATIONS NEVERTHELESS ENFORCEABLE
BY THE SURETY, OR IS THE CLAIMANT ENTITLED TO RELY
UPON THE NOTICE AND TIME LIMITATIONS APPLICABLE
UNDER THE COMMON LAW?
Am. Home Assurance Co. v. Plaza Materials Corp., 826 So. 2d 358, 361 (Fla. 2d
DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
Facts and Procedural History
As outlined by the Second District in its opinion below, the following facts
are pertinent for our consideration of the present action:
This case arises out of the public construction of the Polk
Parkway by the DOT. The Polk Parkway was built in sections, and
each section apparently had its own contract documents. This case
concerns the bonds issued for sections 3A, 3B, and 6A. For all
relevant sections of the Polk Parkway, the DOT was the owner, who
contracted with Cone Constructors, Inc. (“Cone”), as the general
contractor. Cone subcontracted certain work to Fulton Construction
(“Fulton”), and Fulton obtained materials from Plaza. The DOT paid
Cone for certain work. Allegedly, Cone paid Fulton in full and
received a general release in favor of itself and American Home, as
surety. However, Fulton did not pay Plaza. Thereafter, both Fulton
and Cone filed for bankruptcy protection. As a result, Plaza sought
payment from the bond[s]. Plaza, however, did not comply with all of
the notice and time requirements contained in section 255.05(2) when
perfecting these claims.
American Home, 826 So. 2d at 359.
The trial court permitted Plaza to enforce its claims upon the bonds, despite
the company’s lack of compliance with the notice requirements of section
255.05(2). See id. at 358. The court held “that the bonds in this case were
common law bonds rather than statutory bonds and that therefore American Home
could not enforce the restrictions contained in section 255.05(2).” Id. at 360. On
appeal, the Second District affirmed, stating:
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There can be no dispute that the DOT bond does not “contain
reference to the notice and time limitation provisions of [section
255.05].” This is a mandatory requirement of subsection (6).
Section 255.05(4) requires that the “payment provisions” be
deemed statutory and subject to all the requirements of subsection (2).
Even if this statutory language subjects the additional, broader
coverage of a common law bond to the requirements of subsection (2),
as was suggested by the Fifth District in Martin Paving [v. United
Pacific Insurance Co., 646 So. 2d 268, 270 (Fla. 5th DCA 1994)], this
language does not permit American Home to issue a bond in violation
of subsection (6). If anything, the justification for “deeming” a bond
subject to the subsection (2) requirements rests in the fact that the
bond informs the claimant of these requirements. Accordingly, we
conclude that a surety that issues a bond that does not contain notice
of the restrictions as required by subsection (6) is simply not entitled
to enforce those restrictions. To this extent, the violation of
subsection (6) transforms the statutory bond into a common law bond,
or at least renders the time restrictions in subsection (2)
unenforceable.
We recognize that our opinion does not require Plaza to prove
that it was misled or confused by the failure of American Home to
comply with subsection (6) in order to receive a longer claims period.
We conclude that the legislature added the notice requirement in
subsection (6) to eliminate the cost and necessity of litigating complex
issues of waiver or estoppel. American Home had the opportunity to
demand that DOT utilize a bond form that complied with subsection
(6). It chose not to do so. Under these circumstances, we conclude
that the better rule is to permit the longer claims period without
requiring claimants to prove that they were misled by the statutory
violation.
Id. at 360-61 (footnote omitted).
Based upon its conclusion that “[t]he DOT standard contract bond form is
the subject of ongoing litigation throughout the state [and t]rial courts have reached
various outcomes concerning the issues addressed in this opinion,” id. at 361, the
district court certified the above-quoted question to this Court as a matter of great
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public importance, and this action followed.1 Unfortunately, we must resolve
application of statutory provisions that are conflicting. We attempt to respect the
provisions by affording each provision a field of operation rather than elevating
any provision over another.
Analysis
The section 255.05 legislative scheme is designed to afford protection for
those providing work and materials on public projects, because these persons and
entities cannot perfect a mechanics’ lien on public property. See Coastal Caisson
Drill Co. v. Am. Cas. Co. of Reading, Pa., 523 So. 2d 791, 793 (Fla. 2d DCA
1988), approved, 542 So. 2d 957 (Fla. 1989); William H. Gulsby, Inc. v. Miller
Const. Inc., of Leesburg, 351 So. 2d 396, 397 (Fla. 2d DCA 1977). Additionally,
however, the statute at issue was also designed to afford protection to both the
surety on the project and the public. The bond itself protects the public, as
“owner” of the project, from “two particular defaults by a builder. The payment
portion of the bond contains the insurer’s undertaking to guarantee that all
subcontractors and materialmen will be paid and the performance part of the bond
1. We note at the outset that our decision today is directed only to resolution
of the certified question before us. Thus, we limit the scope of our analysis to
bonds posted pursuant to section 255.05 of the Florida Statutes (1995), and do not
address whether application of section 337.18(1) of the Florida Statutes (1995)
would otherwise impact this case because such statutory provision has not been
called into issue by any party. This additional conflict in connection with public
projects appears to need legislative attention along with the conflict we address
today.
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guarantees that the contract . . . will be fully performed.” Coastal Caisson, 523 So.
2d at 793. Finally, section 255.05(2) affords protection to contractors and the
contractors’ sureties from being compelled to account to unknown suppliers and
subcontractors by placing a burden on claimants to advise the contractor and surety
of their participation on the project and to advise if they are not promptly paid. See
Sch. Bd. of Palm Beach County v. Vincent J. Fasano, Inc., 417 So. 2d 1063, 1065
(Fla. 4th DCA 1982).
In accordance with the intent to protect various interests, including
subcontractors, contractors, sureties, and the public, the straightforward language
of the statute attempts to create a clear and simple method of bonding payment for,
and performance of, public construction projects. Section 255.05(1) mandates the
delivery and filing of a bond which guarantees the payment of subcontractors and
performance of the underlying contract with the governmental unit prior to
commencement of any public works project. Additionally, this subsection details
the minimum required information to be contained on the face of the bond.2 While
2. The pertinent portion of section 255.05 specifically provides:
Any person entering into a formal contract with the state or any
county, city, or political subdivision thereof, or other public authority,
for the construction of a public building, for the prosecution and
completion of a public work, or for repairs upon a public building or
public work shall be required, before commencing the work, to
execute, deliver to the public owner, and record in the public records
of the county where the improvement is located, a payment and
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subsection (1) operates to guarantee payment to subcontractors, subsection (2)
provides certain “condition[s] precedent to maintenance of an action” for payment
under a bond delivered and filed pursuant to section 255.05(1). W.G. Mills, Inc. v.
M & MA Corp., 465 So. 2d 1388, 1390 (Fla. 2d DCA 1985); see also Fasano, 417
So. 2d at 1065. Specifically, a subcontractor claimant must notify the contractor
within forty-five days of commencement of work or delivery of materials of its
intent to look to the bond for protection, and must also notify the contractor within
ninety days of completion of the work of any nonpayment and an intent to make a
claim upon the bond.3 Indeed, the statute specifically provides that “[n]o action . . .
performance bond with a surety insurer authorized to do business in
this state as surety. The bond must state the name and principal
business address of both the principal and the surety and must contain
a description of the project sufficient to identify it. Such bond shall be
conditioned that the contractor perform the contract in the time and
manner prescribed in the contract and promptly make payments to all
persons defined in s. 713.01 whose claims derive directly or indirectly
from the prosecution of the work provided for in the contract.
§ 255.05(1)(a), Fla. Stat. (1995).
3. The relevant text of section 255.05(2) provides:
A claimant, except a laborer, who is not in privity with the contractor
shall, within 45 days after beginning to furnish labor, materials, or
supplies for the prosecution of the work, furnish the contractor with a
notice that he intends to look to the bond for protection. A claimant
who is not in privity with the contractor and who has not received
payment for his labor, materials, or supplies shall, within 90 days after
performance of the labor or after complete delivery of the materials or
supplies or, with respect to rental equipment, within 90 days after the
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may be instituted against the contractor or the surety unless both notices have been
given.” § 255.05(2), Fla. Stat. (1995). Finally, subsection (2) provides that “[n]o
action shall be instituted against the contractor or the surety on the payment bond .
. . after 1 year from the performance of labor.” § 255.05(2), Fla. Stat. (1995).
In 1980, the Legislature added subsections (4) and (6) to section 255.05.
Subsection (4) specifically mandates that “[t]he payment provisions of all bonds
furnished for public work contracts described in subsection (1) shall, regardless of
form, be construed and deemed statutory bond provisions, subject to all
requirements of subsection (2).” § 255.05(4), Fla. Stat. (1995) (emphasis
supplied). Subsection (6), on the other hand, specifically requires that all bonds
executed under section 255.05 contain explicit reference to section 255.05 and the
date that the rental equipment was last on the job site available for
use, deliver to the contractor and to the surety written notice of the
performance of the labor or delivery of the materials or supplies and
of the nonpayment. No action for the labor, materials, or supplies
may be instituted against the contractor or the surety unless both
notices have been given. No action shall be instituted against the
contractor or the surety on the payment bond or the payment
provisions of a combined payment and performance bond after 1 year
from the performance of the labor or completion of delivery of the
materials or supplies.
§ 255.05(2), Fla. Stat. (1995).
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notice and time limitations of subsection (2).4 It is the intersection of these two
subsections which provides the subject of the instant action.5
Under the facts of the instant case, unavoidable internal conflict between
subsections (4) and (6) of section 255.05 exists. Plaza, seeking protection under
the payment portion of the bonds in question, failed to comply with the notice and
time requirements contained in section 255.05(2) when perfecting its claims.
See American Home, 826 So. 2d at 359. In accordance with subsection (4), the
payment provisions of American Home’s bonds should be construed as statutory
and, therefore, Plaza’s failure to comply with 255.05(2) would preclude its claims
4. The full text of subsection (6) provides: “All bonds executed pursuant to
this section shall make reference to this section by number and shall contain
reference to the notice and time limitation provisions of this section.” § 255.05(6),
Fla. Stat. (1995).
5. Prior to the adoption of these subsections in 1980, district courts would
determine whether the bond was a statutory bond or common law bond by
examining the document for reference to the statutory provision and applicable
notice obligation and time limitation or the provision of coverage in excess of
statutory limits. Compare United Bonding Ins. Co. v. City of Holly Hill, 249 So.
2d 720, 724 (Fla. 1st DCA 1971) (deeming bond a common law bond because the
document failed to reference section 255.05 and applicable time limitation and
provided coverage in excess of that required by the statute); S.W. Fla. Water
Mgmt. Dist. ex rel. Thermal Acoustic Corp. v. Miller Constr. Co., 355 So. 2d
1258, 1259 (Fla. 2d DCA 1978) (deeming bond a common law bond because it
provided coverage in excess of that required by law) with State Dep’t of Transp. ex
rel. Consol. Pipe & Supply Co. v. Houdaille Indus., Inc., 372 So. 2d 1177, 1178
(Fla. 1st DCA 1979) (determining that the failure to reference the notice
requirement and time limitation of section 255.05 did not recast a statutory bond as
a common law bond where the document specifically referenced the statutory
provision and did not expand the scope of coverage beyond the statutory
requirement).
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upon the bonds. See Harvesters Group, Inc. v. Westinghouse Elec. Corp., 527 So.
2d 257, 258 (Fla. 3d DCA 1988).
Simultaneously with Plaza’s failure to comply with the presuit notice
requirements of section 255.05(2), however, American Home’s bond failed to
comply with the clear and unambiguous requirement of subsection (6) that the
bond “make reference to this section [255.05] by number and . . . contain reference
to the notice and time limitation provisions of this section.” § 255.05(6), Fla. Stat.
(1995). Thus, this Court must address a situation in which the conduct of the
parties forces resolution of a legislative inconsistency in operation, to determine
which noncomplying party should prevail. In essence, the text of the statute before
us on these facts mandates either that neither or that both parties before us should
prevail. American Home should prevail because subsection (4) acts to label its
bond a “statutory bond” subject to the time and notice provisions of section
255.05(2). However, American Home’s bond also failed to comply with the
requirements of subsection (6). Thus, according to Plaza, the bond does not
warrant “statutory” treatment under section 255.05. Likewise, subsection (6)
mandates that those seeking protection under public works bonds such as Plaza
receive actual notice on the face of the bond of the conditions precedent to filing a
claim upon the bond, but a separate subsection (4) specifically states that claims
upon these bonds are subject to the strictures of section 255.05(2) “regardless of
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[the] form” of the bond. Such a scenario was confronted by this Court in Alexdex
Corp. v. Nachon Enters. Inc., 641 So. 2d 858 (Fla. 1994): “We now have two
statutes that when considered separately are clear, precise, and their meanings
understandable; yet when taken together they are inconsistent.” Id. at 861.
The parties to the instant action urge this Court to select one of the two
subsections at issue here as the primary or more important provision which
“trumps” the other. According to the petitioner, we should read the “regardless of
form” language contained within subsection (4) to mean that compliance with the
dictates of subsection (6) is completely irrelevant to enforcement of the notice and
time provisions of section 255.05(2). American Home would have us conclude
that as long as a bond is filed pursuant to section 255.05(1) to guarantee payment
for services or materials delivered to a public works project, it should be deemed a
statutory bond, and the mandate of subsection (6) is merely advisory or nothing
more than a recommendation. Likewise, the respondent urges this Court to
conclude that the specific, mandatory language of subsection (4) has absolutely no
bearing if the information outlined in subsection (6) is not included on the face of
the bond. According to Plaza, the Legislature only intended subsection (4) to have
any consequence when complete compliance with subsection (6) was
accomplished. We cannot agree with either absolute position because such would,
in essence, render a subsection of the statute meaningless.
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This Court cannot engage in a narrow, limited reading of an individual
subsection of section 255.05 as the dissent urges, which would render another
coequal provision of the statute entirely nugatory. We have stated “[i]t is an
elementary principle of statutory construction that significance and effect must be
given to every word, phrase, sentence, and part of the statute if possible, and words
in a statute should not be construed as mere surplusage.” Hechtman v. Nations
Title Ins., 840 So. 2d 993, 996 (Fla. 2003). Further, “a basic rule of statutory
construction provides that the Legislature does not intend to enact useless
provisions, and courts should avoid readings that would render part of a statute
meaningless.” State v. Goode, 830 So. 2d 817, 824 (Fla. 2002). Therefore, it is
our duty to read the provisions of a statute as consistent with one another, see State
v. Putnam County Development Authority, 249 So. 2d 6, 10 (Fla. 1971), and to
give effect and meaning to the entirety of the legislative enactment at issue. See,
e.g., Unruh v. State, 669 So. 2d 242, 245 (Fla. 1996). In light of these fundamental
principles, we decline to render either subsection (4) or (6) completely without
operation by selecting either one for singular primacy in the instant case. To do so,
as the dissent argues we should, would be to disregard basic tenets of statutory
construction that are elements of mainstream Florida law.
While the instant case presents an issue of first impression for this Court,
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two of the district courts of appeal have previously addressed the factual scenario
presented here. As previously related, the district court below determined that “a
surety that issues a bond that does not contain notice of the restrictions as required
by subsection (6) is simply not entitled to enforce those restrictions.” American
Home, 826 So. 2d at 361. Due to the failure of the bonds to comply with
subsection (6), the bonds in question were deemed common law bonds, and the
court concluded that the language of subsection (4) “does not permit American
Home to issue a bond in violation of subsection (6).” Id.; see also Martin Paving
Co. v. United Pacific Ins. Co., 646 So. 2d 268, 271 (Fla. 5th DCA 1994)
(concluding that “unless subsection (1) is complied with, subsection (4) does not
operate to require the claimant’s compliance with subsection (2)”). Clearly, the
court below concluded that the petitioner’s noncompliance with subsection (6)
trumped any effect of section 255.05(4) and mandated that the payment provisions
of the bonds in question be treated as common law bonds.6 This is one possible
result; however, it is impermissible because it entirely negates subsection (4).
Indeed, the American Home and Martin Paving decisions completely write
subsection (4) out of existence, an action which we cannot approve. Further, we
6. The Second District has repeated its dedication to the conclusions within
the decision below in its subsequent American Home Assurance Co. v. APACFlorida, Inc., 834 So. 2d 369 (Fla. 2d DCA 2003), decision.
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note that no Florida court has ever adopted the position advanced by the dissent,
which would completely eliminate subsection (6).
Ironically, the Fifth District Court of Appeal addressed a claim involving
“the same surety and the same ‘Polk County Parkway’” project, and arrived at a
different result in Florida Crushed Stone Co. v. American Home Assurance Co.,
815 So. 2d 715 (Fla. 5th DCA 2002). In its decision, the Fifth District concluded:
[A]s we read section 255.05(4), perhaps the most unambiguous
portion of the statute, Florida no longer recognizes a common law
payment bond given on a public works project. The payment
provisions of all bonds given on a public works project regardless of
form, the legislature tells us, shall be construed as statutory bond
provisions subject to the requirements of section 255.05(2). We
believe that fashioning a remedy which incorporates a “common law
payment bond” on this public works project which is not subject to the
requirements of subsection (2) is contrary to the express language of
the statute. Instead of holding that the bond’s non-compliance with
the statutory requirements automatically excuses claimants from
complying with the provisions of subsection (2), we should recognize
that the bond does incorporate these requirements but that a bonding
company which has issued a bond which fails to incorporate all
statutorily required information may be estopped from asserting the
claimant’s non-compliance with the provisions of subsection (2) if
such non-compliance has resulted from the failure of the bond to
contain the information required by the statute.
Id. at 716 (footnotes omitted). In essence, the Fifth District determined that the
payment provisions of bonds delivered pursuant to section 255.05(1) are to be
construed as statutory, but if a claimant’s noncompliance with the notice
requirements of section 255.05(2) resulted from the bond’s failure to relate the
information required by section 255.05(6) concerning statutory notice, the claim
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could proceed. Recovery against the bond will be precluded only in those cases in
which the claimant’s failure to comply with the requirements of subsection (2) did
not result from the bond’s deficiencies under subsection (6). See id. at 716-17.
We are persuaded that the only method of giving any simultaneous meaning
to both subsections (4) and (6) in the scenario before us is adoption of the approach
enunciated by the Fifth District in Florida Crushed Stone as explained and
expanded upon in this opinion. We cannot agree with the assertions of the parties
before us or the dissent, each of which advocate completely ignoring the entirety of
either subsection (4) or subsection (6). Indeed, a decision which results in one of
these two subsections “trumping” the other would run entirely counter to this
Court’s well-settled principles of statutory construction. As mentioned earlier, and
as we stated in Unruh v. State, 669 So. 2d 242 (Fla. 1996):
As a fundamental rule of statutory interpretation, courts should
avoid readings that would render part of a statute meaningless.
Furthermore, whenever possible courts must give full effect to all
statutory provisions and construe related statutory provisions in
harmony with one another. This follows the general rule that the
legislature does not intend to enact purposeless and therefore useless
legislation.
Id. at 245 (citations and quotation marks omitted); see also State v. Putnam County
Dev. Auth., 249 So. 2d 6, 10 (Fla. 1971). It is this Court’s “duty to read the several
provisions of [section 255.05] as consistent with one another,” id.; therefore, we
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must make every attempt to give effect and meaning to all of the provisions of
section 255.05, and compliance or non-compliance must have some consequence.
Our refusal to read either subsection (4) or (6) to the exclusion of the other is
supported by the legislative history of the enactment––an important source of the
legislative intent in a case, such as this, where the plain text of the statute is in
inescapable conflict. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).
Importantly, the Legislature added subsections (4) and (6) to the statute, pursuant
to the same bill, in 1980. See Ch. 80-32, § 1, Laws of Fla. It would defy logic to
conclude that the Legislature intended two contemporaneous amendments to
negate one another.
Moreover, the history of the 1980 amendment reveals that the Legislature
may have initially intended to avoid the factual scenario presented here by
mandating the statutory bond form. Fla. S. Comm. on Govtl. Ops., SB 33 (1980)
Staff Analysis 1 (Jan. 16, 1980) (on file at Fla. State Archives). The drafters
believed that a mandatory form would provide uniformity and prevent courts from
deeming bonds common law bonds. Id. However, surety companies did not want
the Legislature to mandate a particular bond form, expressed a preference for using
their own forms, and found it a more “desirable solution” for the Legislature to
include a statutory requirement that any bond include a reference to section 255.05
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and to the statutory time limits. Id. at 2. Before the bill was passed, the legislative
intent shifted. The record of the change reads as follows:
The bond form in the statute would continue to be permissive, not
mandatory.
Bonds executed pursuant to the section shall be construed as statutory
bonds, regardless of form.
The bill requires bonds for public works to refer to the statute and to
the time and notice limitations of the statute.
Fla. S. Comm. on Govtl. Ops., SB 33 (1980) Statement of Substantial Changes
Contained in Committee Substitute for Senate Bill 33 (on file at Fla. State
Archives) (emphasis added).
This legislative intent is evidenced by the language in subsection (4), which
provides that regardless of form, the bonds described in subsection (1) shall be
deemed statutory bonds and subject to all of the notice and time requirements of
subsection (2). The intent is also expressed in subsection (6), which provides that
“[a]ll bonds executed pursuant to [section 255.05] shall make reference to this
section by number and shall contain reference to the notice and time limitation
provisions of this section.” § 255.05(6), Fla. Stat. (1995) (emphasis added). On
this basis, it is clear that the Legislature did not intend for either subsection (4) or
(6) to have a completely preclusive effect as the parties and the dissent assert in
this dispute.
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While the dissent criticizes consideration of the legislative staff analysis
contending that such analyses “add nothing to an investigation of legislative
intent,” dissenting op. at 33, the dissent fails to direct our attention to a single
majority opinion from a Florida court that directly supports this position. The only
Florida opinion cited by the dissent that disapproves of the use of legislative
history is a dissenting opinion, which of course is not binding precedent.7 In fact,
since 1982 this Court has on numerous occasions looked to legislative history and
staff analysis to discern legislative intent. See, e.g., Knight v. State, 808 So. 2d
210, 213 n.4 (Fla. 2002) (noting that while the relevant portion of the Prisoner
Releasee Reoffender Act does not expressly articulate that the term “felony
punishable by life” includes both life felonies and first-degree felonies punishable
by life, “the legislative history contained in the bill’s Staff Analysis indicates that
the Legislature intended to include both life felonies and first-degree felonies
punishable by life in that term”); Olive v. Maas, 811 So. 2d 644, 654 (Fla. 2002)
(finding that “although section 27.711 indicates that the fee schedule set forth in
subsection (3) is the ‘exclusive means of compensation,’ the legislative history and
staff analysis clearly contemplate, and indeed accommodate, fees in excess of the
7. Further, the dissent’s reliance on various concurring opinions by United
States Supreme Court Justice Scalia is most questionable and to no substantive
avail since such opinions are not binding precedent either. See generally Mitchum
v. State, 251 So. 2d 298, 300 (Fla. 1st DCA 1971) (noting that a concurring
opinion in a United States Supreme Court case is not binding on a state court as
precedent).
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statutory schedule in cases where unusual or extraordinary circumstances exist”);
Ivey v. Chicago Ins. Co., 410 So. 2d 494, 497 (Fla. 1982) (relying on legislative
staff analysis and economic statement in reaching the conclusion that a vehicle
owner’s uninsured motorist coverage was applicable to the petitioner; further
noting that “[a]n act’s legislative history is an invaluable tool in construing the
provisions thereof” (emphasis added)). Thus, the opinions cited by the dissent
clearly do not reflect Florida law. Further, the dissent’s position with regard to the
use of legislative history and staff analysis is beyond the mainstream of Florida
jurisprudence and totally contrary to well-established Florida precedent.
In light of the legislative intent manifest in the statutory text as well as the
accompanying legislative history, which contrary to the dissent’s assertion is a
basic and invaluable tool of statutory construction, see Ivey, 410 So. 2d at 497, we
view the approach adopted by the Fifth District Court of Appeal as the most viable
method of effectuating the entirety of section 255.05, while preserving principles
of fairness and equity. In accordance with our adoption of the approach
formulated in Florida Crushed Stone as described herein, as well as the text of
section 255.05(4), the payment provisions of bonds posted pursuant to the
provisions of section 255.05(1) shall, “regardless of form, be construed and
deemed statutory bond provisions, subject to all requirements of subsection (2).” §
255.05(4), Fla. Stat. (1995). However, a company issuing a bond which fails to
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incorporate all statutorily required information from subsection (6) may be
estopped from asserting the claimant’s noncompliance with the notice provisions
of subsection (2) if the claimant’s noncompliance has resulted from the failure of
the bond to contain the information required by the statute. See Florida Crushed
Stone, 815 So. 2d at 716.
We further conclude that once the claimant has made a prima facie showing
that the bond is facially deficient under subsection (6) and establishes by a
preponderance of the evidence that the claimant did not have actual notice of the
provision, the surety is estopped from attempting to enforce the limitations of
section 255.05(2), which were not referenced on the face of the bond as statutorily
required. The approach adopted today gives all possible effect and consequences
to both subsection (4) and subsection (6) as may be available within the judicial
system, and applies a field of operation to all provisions in a situation in which
both parties clearly failed to comply with statutory requirements while justifiably
relying upon portions of the statute.8
The dissent would relegate section 255.05(6) into nonexistence. Under this
approach, the statutory requirement to provide specific notification of substantive
8. We note that the institutional capacity of this Court limits our power to
address the inescapable internal conflict within section 255.05 in operation to an
attempt to harmonize subsections (4) and (6). The parties are urged to take the
issues presented in this action to the Legislature for possible amendment of the
statutory provisions at issue to effectuate legislative priorities and policy and
eliminate the conflicts which may arise among the provisions in actual operation.
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material information is rendered meaningless. The dissent attempts to ascribe a
label of relative “importance,” without any recognized authority, to the statutory
requirements and through this “importance” analysis simply eliminate a clear
statutory provision. This new and unique approach follows neither the analysis of
the Fifth District Court of Appeal nor that of the Second District Court of Appeal
and is contrary to the well-established body of law that we are required to read and
apply all provisions of a statute to be consistent with one another and that we give
meaning and effect to the entirety of a statute, not simply erase a statutory
provision through an analysis of a judicial doctrine of relative “importance” as the
dissent urges in this conflict. We attach no higher “importance” to any singular
provision but simply attempt to afford each provision impact, consequences and a
field of operation, nor do we comprehend that affording each statutory provision
some effectiveness is a “reward” to any party. To the contrary, the dissent would
have the surety reap the benefit of or, in its terms, be “rewarded” for its
noncompliance with a specific statutory requirement.
Further, we do not find the decisions upon which the dissent relies to assert
that an absence of particular penalties within the statutory scheme justifies its
position to render a significant statutory provision totally without meaning.
Whether a statutory violation creates a separate cause of action, the principle
addressed by most of those decisions is not at all responsive to affording a
- 20 -
statutory provision some field of operation in its entirety depending on the
particular facts as we have addressed today.
Conclusion
In accordance with the foregoing, we conclude that the notice and time
limitation provisions of section 255.05(2) may be enforceable, even where the
statutory payment bond at issue does not contain reference to those notice and time
limitation provisions in accordance with section 255.05(6). Once the claimant
upon the bond makes a prima facie showing that the bond is facially deficient
within the context of the statute and establishes by a preponderance of the evidence
that the claimant did not have actual notice of the provision, the surety is estopped
from attempting to enforce those provisions. We therefore quash the decision
below to the extent it is inconsistent with this opinion, and approve the approach of
the Fifth District in Florida Crushed Stone Co. v. American Home Assurance Co.,
815 So. 2d 715 (Fla. 5th DCA 2002), as more fully developed herein.
This cause is remanded for a determination of whether Plaza Materials can
satisfy the requirements outlined herein to cause the estoppel to arise, adjudication
of the respective motions seeking reimbursement for prevailing party costs and
attorney’s fees in connection with representation before this Court and all others,
and final resolution of this case in accordance with this decision.
It is so ordered.
- 21 -
PARIENTE, C.J., and ANSTEAD, LEWIS, and QUINCE, JJ., concur.
WELLS, J., concurs in part and dissents in part with an opinion.
CANTERO, J., concurs in part and dissents in part with an opinion, in which
BELL, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
WELLS, J., concurring in part and dissenting in part.
I join in Justice Cantero’s concurring and dissenting opinion except for that
part of his opinion discussing the use of legislative staff analysis in statutory
construction. I do not join in Justice Cantero’s view on that subject.
CANTERO, J., concurring in part and dissenting in part.
I agree with the majority to quash the district court’s decision. I disagree,
however, that section 255.05, Florida Statutes (1995), contains conflicting
provisions and that, to avoid a windfall to either side in this case, we must
judicially impose a compromise view disconnected from any statutory language.
The problem with the statute is not that two provisions conflict; it is that neither
party complied with it. In that event, the statute itself determines who prevails: the
deadlines imposed on claimants in subsection (2) apply regardless of the form of
the bond―that is, regardless of whether the bond warns of those deadlines. The
majority holds, however, that if the bond fails to warn of the deadlines, and if the
- 22 -
claimant did not have actual notice of them, the deadlines no longer apply. Such
an interpretation emasculates the unambiguous language in subsection (4)
(providing that the deadlines apply anyway), thwarts the Legislature’s intent, and
rewards ignorance.
I begin by analyzing the relevant sections of the statute. Next, I explain why
the statutory intent is to apply the deadlines even if the bond fails to refer to them.
I then argue that the majority’s approach conflicts with the statute and creates more
problems than it solves. Finally, I demonstrate that, contrary to the majority’s
assumption, its decision eviscerates not only the deadlines, but also the one-year
statute of limitations for bringing claims on the bond.
I. THE STATUTORY LANGUAGE
In determining whether the statutory deadlines can be enforced even though
a bond does not refer to them, we must examine several provisions of section
255.05. I briefly describe each.
Subsection (1) requires that persons contracting with any Florida public
entity for construction or repairs must provide a payment and performance bond
insuring completion of the work and payment of subcontractors. § 255.05(1), Fla.
Stat. (1995). It also prescribes information that “must be stated” in the bond. For
example, the “bond must state the name and principal business address of both the
principal and the surety and must contain a description of the project sufficient to
- 23 -
identify it.” Id. Further, the bond “shall be conditioned that the contractor perform
the contract in the time and manner prescribed in the contract and promptly make
payments to all persons defined in s. 713.01.” Id.
Subsection (2) establishes certain deadlines claimants must meet to receive
payment under the bond. § 255.05(2), Fla. Stat. (1995). For example, within
forty-five days of beginning work, a claimant must notify the contractor that the
claimant will look to the bond for protection. Then, within ninety days of
completing the work, a claimant who has not been paid must notify the contractor
and the surety of both the completion of the work and the nonpayment. Subsection
(2) warns that “[n]o action . . . may be instituted against the contractor or the surety
unless both notices have been given.” Id. Finally, subsection (2) establishes a oneyear statute of limitations.
Subsection (3) contains a form for a public construction bond, but specifies
that the “bond required in subsection (1) may be in substantially the following
form.” § 255.05(3), Fla. Stat. (1995). Notably, the model bond does not refer to
the deadlines in subsection (2).
The next relevant provision is subsection (4). That subsection states that
“[t]he payment provisions of all bonds furnished for public work contracts
described in subsection (1) shall, regardless of form, be construed and deemed
statutory bond provisions, subject to all requirements of subsection (2).”
- 24 -
§ 255.05(4), Fla. Stat. (1995) (emphasis added). I emphasize the “regardless of
form” language because I believe it is ultimately dispositive.
Finally, subsection (6) imposes notice requirements on the issuer of the
bond. § 255.05(6), Fla. Stat. (1995). It provides that “[a]ll bonds executed
pursuant to this section shall make reference to the notice and time limitation
provisions of this section.” Id.
Thus, the statute requires public works contractors to furnish a bond, it
provides a model bond contractors can use, it requires claimants to meet certain
deadlines, it requires the bond to notify claimants of these deadlines, and it
provides that the deadlines apply regardless of the form of the bond.
II. RECONCILING THE PROVISIONS
According to the majority, see majority op. at 8, a conflict exists between
subsection (6) (requiring the bond to warn of the statutory deadlines) and
subsection (4) (providing that the deadlines apply regardless of the form of the
bond). I disagree. Rather, subsection (4) actually resolves a potential conflict.
That conflict is between subsection (2), which establishes the statutory deadlines,
and subsection (6), which requires the bond to warn about those deadlines. What
happens when, as occurred here, the bond fails to warn of the deadlines and the
claimant fails to meet them? Subsection (4) answers that question: the statutory
deadlines apply regardless of the form of the bond.
- 25 -
When confronted with an issue of statutory construction, as in this case, we
are guided by legislative intent. See State v. Rife, 789 So. 2d 288, 292 (Fla. 2001).
This intent “must be determined primarily from the language of the statute.”
Overstreet v. State, 629 So. 2d 125, 126 (Fla. 1993).
The legislative intent being plainly expressed, so that the act read by
itself or in connection with other statutes pertaining to the same
subject is clear, certain and unambiguous, the courts have only the
simple and obvious duty to enforce the law according to its terms. . . .
Even where a court is convinced that the Legislature really meant and
intended something not expressed in the phraseology of the act, it will
not deem itself authorized to depart from the plain meaning of the
language which is free from ambiguity.
Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 454 (Fla.
1992) (quoting Van Pelt v. Hilliard, 78 So. 693, 694-95 (Fla. 1918) (quoting 2 J.G.
Sutherland, Statutes and Statutory Construction § 366 (1904)). Thus, “[i]f the
language of the statute is clear and unequivocal, then the legislative intent must be
derived from the words used without involving incidental rules of construction or
engaging in speculation as to what the judges might think that the legislators
intended or should have intended.” Tropical Coach Line, Inc. v. Carter, 121 So. 2d
779, 782 (Fla. 1960). In this case, the statutory language itself answers the
question.
As the Fifth District Court of Appeal has recognized, subsection (4), which
requires compliance with the deadlines regardless of the form of the bond,
constitutes a clear and unambiguous abrogation of common law payment bonds on
- 26 -
public works projects. See Fla. Crushed Stone Co. v. Am. Home Assurance Co.,
815 So. 2d 715, 716 (Fla. 5th DCA 2002). Subsection (4) makes the “payment
provisions of all [public works] bonds” into statutory bond provisions and
therefore subject to subsection (2). There are no exceptions. “Regardless of”
means “without taking into account.” Merriam Webster’s Collegiate Dictionary
981(10th ed. 1993). Thus, the phrase emphasizes the absolute and all-inclusive
reach of the subsection.
Viewing subsections (4) and (6) in pari materia with the rest of the statute
leads to the same conclusion. See Forsythe, 604 So. 2d at 455 (“It is axiomatic that
all parts of a statute must be read together in order to achieve a consistent whole.”).
Subsection (2), which establishes the forty-five-day, ninety-day, and one-year
deadlines, warns expressly that (1) “[n]o action” may be brought “unless both
notices have been given” and that (2) “[n]o action” may be brought on the payment
bond more than one year after performance of the contract. § 255.05(2), Fla. Stat.
(1995). That subsection contains no exceptions, either. If the notices are not
timely provided, relief is barred. A claim is also barred if not brought within the
one-year statute of limitations.
Under subsections (4) and (2), then, the statute clearly provides that all bond
payment provisions are statutory and all are subject to these deadlines. In this
case, Plaza Materials failed to comply with the statute’s notice requirements and
- 27 -
did not file its claim within the one-year period. See Am. Home Assurance Co. v.
Plaza Materials Corp., 826 So. 2d 358, 359 (Fla. 2d DCA 2002). Accordingly,
under these two provisions alone, its action is barred.
An examination of the other relevant subsections of section 255.05
reinforces this conclusion. Subsection (6) requires that all bonds refer to section
255.05 and to the deadlines in the statute. Subsections (1) and (6) have two things
in common. First, they both specify required information for the contents of the
bond. Second, neither subsection―nor any other part of the statute―prescribes a
consequence for failing to comply with these requirements. In contrast, subsection
(4) provides that all bonds “regardless of form” are subject to the deadlines of
subsection (2). That subsection, in turn, provides that a claim is barred if notice is
not given or if brought after the one-year statute of limitations has run.
§ 255.05(2), Fla. Stat. (1995). The lack of any sanction for noncompliance in
subsections (1) and (6), combined with the unequivocal “regardless of form”
language of subsection (4) referring to subsection (2) and the equally unequivocal
language of subsection (2), demonstrates that the Legislature intended to enforce
the statutory deadlines regardless of whether the bond referred to them.
We have held that the absence of a sanction for noncompliance with a
statutory provision evidences a legislative choice about the primacy of that
provision vis-a-vis other, conflicting provisions. See Dep=t of Bus. Regulation v.
- 28 -
Hyman, 417 So. 2d 671, 673 (Fla. 1982) (“Although section 120.59(1) says that
final orders shall be rendered within 90 days, it does not specify any sanction for
violation of the time requirement. Other parts of chapter 120, however, do provide
sanctions or other consequences where there is a failure by either an agency or an
affected party to act within the prescribed time limits.”). Further, not every
statutory violation carries a civil remedy. See, e.g., Villazon v. Prudential Health
Care Plan, Inc., 843 So. 2d 842, 852 (Fla. 2003) (noting that “[t]he [Health
Maintenance Organization] Act does not specifically provide a private right of
action for damages based upon an alleged violation of its requirements”);
Mantooth v. Richards, 557 So. 2d 646, 646 (Fla. 4th DCA 1990) (holding that a
violation of a criminal statute did not afford a civil remedy); see also Gunn v.
Robles, 130 So. 463, 463 (Fla. 1930) (“Where a particular remedy is conferred by
statute, it can be invoked only to the extent and in the manner prescribed.”);
Sylvester v. City of Delray Beach, 584 So. 2d 214, 215 (Fla. 4th DCA 1991)
(holding that the exclusive remedy for violation of a statute was injunctive relief);
City of Miami v. Cosgrove, 516 So. 2d 1125, 1127 (Fla. 3d DCA 1987) (holding
that a statute granting a right to injunctive relief did not thereby grant a right to
collect damages); cf. 48A Fla. Jur. 2d Statutes § 227 (2000) (“In general, a statute
that does not purport to establish a civil liability, but merely makes provision to
- 29 -
secure the safety or welfare of the public as an entity, will not be construed as
establishing a civil liability.”).
Had the Legislature intended to punish the omission of the information
subsection (6) requires, it could have so provided. I find it significant that the
Legislature added subsections (4) and (6) at the same time, in 1980. See Ch. 8032, §1 Laws of Fla. Had the Legislature wanted to enforce subsection (6), it could
have excepted from the deadlines in subsection (2) any bond not complying with
subsection (6). It did not do so, and in fact added subsection (4) as well. Thus, the
Legislature emphasized that the failure to comply with subsection (6) would not
affect a claimant’s obligation to comply with the deadlines in subsection (2).
I also find it significant that when the Legislature amended the statute to add
subsections (4) and (6), it did not also amend subsection (3). See Ch. 80-32, § 1,
Laws of Fla. Subsection (3) provides a form for a public construction bond, but
this approved bond does not refer to the statutory deadlines. § 255.05(3), Fla. Stat.
(1995). The subsection specifies that the “bond required in subsection (1) may be
in substantially the following form.” Id. Thus, the Legislature obviously approves
the use of its model bond. If it had deemed essential the references to the statutory
deadlines, it would have amended its model form when it added subsection (6). It
also would have tempered the “regardless of form” language in subsection (4).
- 30 -
The fact that it did not supports the conclusion that subsection (4) was designed to
enforce the statutory deadlines even if the bond failed to refer to them.
Under the majority=s decision, however, even a bond that copies verbatim
the statute’s model form could lose the statutory protections. In this case,
American Home issued the bond using a standard Department of Transportation
bond that closely parallels the model bond. Like the model bond, American
Home’s refers to section 255.05 generally (thus placing claimants on notice of the
statute), but does not refer specifically to the deadlines.
Further support for my reading of the statute is the fact that subsection (6)
merely requires a redundant act―that is, notice of what the statute already says
and what claimants are legally presumed to know. In the area of bonds in
particular, courts have held that “the provisions of [section 255.05] become a part
of the bond or the bond should be construed in light of the statute.” Fuller Indus.,
Inc. v. R. Terry Blazier & Son, Inc., 188 So. 2d 2, 3 (Fla. 2d DCA 1966). More
generally, the public is on constructive notice of statutory requirements. See, e.g.,
Ellis v. State, 762 So. 2d 912, 912 (Fla. 2000) (recognizing that publication in the
Laws of Florida or the Florida Statutes gives all citizens constructive notice of the
consequences of their actions); In re Will of Martell, 457 So. 2d 1064, 1068 (Fla.
2d DCA 1984) (recognizing that each person is presumed to know the law);
Guemes v. Biscayne Auto Rentals, Inc., 414 So. 2d 216, 218 n.4 (Fla. 3d DCA
- 31 -
1982) (same); Hart v. Hart, 377 So. 2d 51, 52 (Fla. 2d DCA 1979) (“All citizens
are presumed to know the law.”); cf. Health Care & Ret. Corp. of Am. v. Dep=t of
Health & Rehab. Servs., 463 So. 2d 1175, 1177 (Fla. 1st DCA 1984) (noting that
an applicant for a certificate of need is presumed to know the applicable law).
Many cases have recognized the maxim, as old as the law itself, that ignorance of
the law is no excuse. See, e.g., Fla. Bar v. Dubow, 636 So. 2d 1287, 1288 (Fla.
1994); D.F. v. State, 682 So. 2d 149, 152 (Fla. 4th DCA 1996); Reason v.
Motorola, Inc., 432 So. 2d 644, 645 (Fla. 1st DCA 1983). Thus, Plaza Materials is
presumed to know the operative law affecting its rights and obligations. I note that
the bond in this case expressly cited section 255.05. Thus, Plaza Materials was
warned to read it.
Further underscoring this conclusion is the fact that a contractor is not
required to provide claimants a copy of the bond. § 255.05(1), Fla. Stat. (1995).
Rather, the claimant must request a copy from the governmental entity in charge of
the public works project. See id. Unless the claimant specifically requests a copy
of the bond when it begins work, it will not even see the references to the statutory
deadlines until it files a claim.
For these reasons, I conclude that although the Legislature apparently found
it important to require that bonds refer to the deadlines of subsection (2), the
language of subsection (4)―providing that, regardless of form, all bonds remain
- 32 -
subject to the requirements of subsection (2)―demonstrates that it did not grant
the requirement of notice of the deadlines coequal status with the deadlines
themselves.
So far, my discussion has focused on the statute’s plain language. But the
majority also examines the legislative staff analyses in an attempt to divine the
“intent” behind the Legislature’s silence on the enforcement of subsection (6).
See majority op. at 15-16 (citing, for example, staff analyses and concluding that
“[b]efore the bill was passed, the legislative intent shifted”). In my view, this kind
of analysis is “neither compatible with our judicial responsibility of assuring
reasoned, consistent, and effective application of the statutes . . . , nor conducive to
a genuine effectuation of [legislative] intent.” Blanchard v. Bergeron, 489 U.S. 87,
99 (1989) (Scalia, J., concurring in part and concurring in the judgment).
This Court has stated that legislative staff analyses are not determinative of
legislative intent, but are only “one touchstone of the collective legislative will.”
White v. State, 714 So. 2d 440, 443 n.5 (Fla. 1998) (quoting Sun Bank/South
Florida, N.A. v. Baker, 632 So. 2d 669, 671 (Fla. 4th DCA 1994)). However,
where the language is clear, courts need no other aids for determining legislative
intent. See Tropical Coach Line, Inc., 121 So. 2d at 782. Even if the language
were not clear, legislative staff analyses add nothing to an investigation of
legislative intent. Staff analyses are not written by legislators but, as the name
- 33 -
implies, by staff—that is unelected employees. The analyses thus “provide scant
evidence of even a probable or constructive legislative intent, because they are
crafted by staff . . . and are subject to packing via influence of interest groups and
other legislative insiders.” Foreman v. United States, 26 Cl. Ct. 553, 562 (Cl. Ct.
1992), aff’d, 60 F.3d 1559 (Fed. Cir. 1995). Another problem with relying on a
staff analysis is that no evidence exists that any of the legislators who voted for the
proposed bill even read the analysis, much less agreed with it. See Foreman, 26
Cl. Ct. at 562. Moreover, the staff analyses the majority cites came from only one
house of the legislature, and again no evidence exists that the other house adopted
it, agreed with it, or even read it. The fact is that even if all the legislators read the
staff analysis of a bill, they could disagree with it and still vote in favor of the bill
itself. See BankOne Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S. 264,
280 (1996) (Scalia, J., concurring in part and concurring in the judgment)
(“Moreover, even if subjective intent rather than textually expressed intent were
the touchstone, it is a fiction of Jack-and-the-Beanstalk proportions to assume that
more than a handful of those Senators and Members of the House who voted for
the final version of the [legislation] . . . were, when they took those actions, aware
of the drafting evolution [of the bill] . . . ; and if they were, that their actions in
voting for or signing the final bill show that they had the same ‘intent’ which that
evolution suggests was in the minds of the drafters.”). The only text with which a
- 34 -
legislator must agree is the text of the bill itself. See Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 390-91 (2000) (Scalia, J., concurring in the
judgment) (“The only reliable indication of that [legislative] intent—the only thing
we know for sure can be attributed to all of them—is the words of the bill that they
voted to make law.”); Deason v. State, 688 So. 2d 988, 990 (Fla. 1st DCA 1997)
(Allen, J., dissenting) (disagreeing with “majority’s reliance upon tidbits of
legislative history to discern ‘legislative intent’” and stating that the “law means
what its text most appropriately conveys”), approved sub nom. Deason v. Dep’t of
Corrections, 705 So. 2d 1374 (Fla. 1998).9
Even if staff analyses were potentially helpful in the abstract, in this case
they provide no useful information. The staff analyses indicate that (1) the bond
form in the statute would remain permissive; (2) regardless of form, the bonds
shall be construed as statutory; and (3) the bond must refer to the statute’s notice
and time limitations. See majority op. at 15-16. All of this is contained in the
statute itself, and none of it substantiates the majority’s conclusion that it shows
“clear[ly] that the Legislature did not intend for either subsection (4) or (6) to have
9. The majority insists that this Court has relied on staff analyses in
determining legislative intent. I concede as much. But none of these cases explain
how a document written by a legislative staff member can help to determine the
intent of a legislative body whose members need not even read the document,
much less agree with its contents, before voting in favor of the bill at issue. That
we have engaged in a questionable practice in the past is not, to me, adequate
justification, standing alone, for continuing to do so.
- 35 -
a completely preclusive effect.” Majority op. at 16. The purported lamp of
legislative history sheds no light on this issue.
III. THE MAJORITY’S ACTUAL NOTICE ANALYSIS
I also disagree with the majority’s adoption of an actual notice requirement
to resolve this case. The majority essentially adopts the resolution of the Fifth
District Court of Appeal in Florida Crushed Stone, 815 So. 2d at 716. That court
held that “a bonding company which has issued a bond which fails to incorporate
all statutorily required information may be estopped from asserting the claimant’s
non-compliance with the provisions of subsection (2) if such non-compliance has
resulted from the failure of the bond to contain the information required by the
statute.” Id. The majority limits the test to instances in which the bond fails to
refer to the deadlines in subsection (2). See majority op. at 16. Under the
majority’s holding, if the bond does not refer to the statutory deadlines and the
claimant can demonstrate it did not have actual notice of those deadlines, the
surety is estopped from enforcing them. In other words, a claimant who is ignorant
of the law can estop a surety from enforcing it, while a claimant who is informed
about the law cannot.
The first problem with this resolution is that it is blatantly extra-statutory.
Although neither party in this case complied with the statute, nothing in the statute
even hints at the resolution reached by the majority. To the contrary, the
- 36 -
“regardless of form” language in subsection (4) dictates the opposite. Had the
Legislature intended use of such a prejudice analysis, it certainly could have
included one—as it did when it added subsection (8) in 1998. See Ch. 98-135, § 1,
Laws of Fla. Under that provision, a contractor furnishing a payment bond may
serve a written demand on a claimant not in privity with the contractor for a sworn
accounting of the claimant’s labor or services. § 255.05(8), Fla. Stat. (Supp.
1998). A claimant’s failure to respond to a contractor’s demand for an accounting
within thirty days, as well as a fraudulent response, forfeits the claimant’s right
under the bond. However, the negligent inclusion or omission of information will
forfeit the bond only to the extent that the contractor can demonstrate prejudice.
This provision remains in the statute. It illustrates even more clearly that when the
Legislature stated in subsection (4) that all public work bonds regardless of form
are subject to the time and notice limitations of subsection (2), it meant what it
said.
The next problem with the majority’s approach is an obvious one: it rewards
ignorance. Potential claimants that keep informed of statutory requirements must
comply with the deadlines, while those that blind themselves to the law can avoid
them. In this case, for example, the bond referred to the statute itself. The
majority’s approach, however, rewards claimants who, despite notice of the statute,
refuse to read it. Such a result is contrary to the principles outlined above that
- 37 -
every person is presumed to know the law and that ignorance of the law is no
excuse. Such an approach also will substantially increase the costs of litigating
these claims as courts hold mini-trials on the issues of what claimants knew and
when they knew it. Because ignorance is nearly always an issue of fact, much
time, money, and resources will have to be spent resolving this issue. That is
exactly what subsection (4) intended to avoid.
I also find it problematic that the exception allows a claimant establishing
lack of notice to assert a claim against the surety when the surety did not even draft
the bond. As the First District Court of Appeal has stated, “[i]f any ambiguity
arguably existed in the bond, it could hardly be construed against the surety which
did not prepare the bond. . . . The bond’s drafter, the State of Florida and the
nominal plaintiff, is the only party that is subject to the rule of strict construction
not the surety.” State Dep=t of Transp. v. Houdaille Indus., Inc., 372 So. 2d 1177,
1178 (Fla. 1st DCA 1979) (footnote omitted). In other words, the surety should
not be held responsible for the agency=s omission.
IV. THE STATUTE OF LIMITATIONS
Finally, I address the majority’s abrogation of the one-year statute of
limitations in cases where the bond fails to warn of the statutory deadlines.10 The
10. In this case, Plaza Materials admittedly did not file its claim within the
one-year period, and the question of whether the bond’s failure to refer to the
- 38 -
majority’s decision creates a basis for completely evading the statute of limitations
on claims against payment bonds.
In the past, claimants frequently argued they were not subject to the time
limitations of subsection (2) because theirs was a common law, not a statutory
payment bond. See 7 Fla. Jur. 2d Bonds §§ 8-9 (2004). The bond, so the argument
went, provided coverage exceeding the minimum statutory requirements and thus
was subject to the longer statute of limitations for an action on a contract founded
on a written instrument. See Florida Keys Cmty. Coll. v. Ins. Co. of N. Am., 456
So. 2d 1250, 1251 (Fla. 3d DCA 1984); 7 Fla. Jur. 2d Bonds § 9 (2004); see also, §
95.11(2)(b), Fla. Stat. (2004) (providing a five-year statute of limitation of actions
on written contracts).11 Plaza Materials has made this argument throughout this
litigation. The majority correctly rejects that argument and holds, in accordance
with the express language of subsection (4), that the bond is indeed a statutory
payment bond. See majority op. at 16. Section 255.05(2), Florida Statutes (1995),
however, provides that “[n]o action shall be instituted against the contractor or the
subsection (2) deadlines eliminated the limitations period was argued both below
and in this appeal.
11. In 1988 the Legislature added paragraph (e) to subsection 95.11(5) to
make all claims against payment bonds for both private and public works subject to
a one-year statute of limitation. Ch. 88-397, § 1, Laws of Fla. Then in 2001 the
Legislature amended section 95.11(2)(b), which provides a five-year statute of
limitation for legal and equitable claims on a written instrument, to specify that
claims against payment bonds “shall be governed by the applicable provisions of
ss. 255.05(2)(a)2. and 713.23(1)(e).” Ch. 2001-211, § 2, Laws of Fla.
- 39 -
surety on the payment bond or the payment provisions of a combined payment and
performance bond after 1 year from the performance of the labor or completion of
delivery of the materials or supplies.” This one-year statute of limitations remains
in the current statute. See § 255.05(2)(b)2., Fla. Stat. (2004); see also ch. 63-437, §
1, Laws of Fla. (amending statute to add one-year statute of limitations). Thus,
because Plaza Materials filed its action beyond the one-year statute of limitations,
its claim should be barred. See § 95.011, Fla. Stat. (2004) (“A civil action or
proceeding . . . shall be barred unless begun within the time prescribed in this
chapter or, if a different time is prescribed elsewhere in these statutes, within the
time prescribed elsewhere.”). The majority’s decision to remand, however, entitles
Plaza Materials to a hearing on its barred claim. If Plaza Materials proves that it
failed to meet the statutory deadlines because the bond did not refer to them and it
did not have actual notice―that is, that it was ignorant of the law―it will be
permitted to escape the one-year statute of limitations. The majority thus holds
that if a claimant can establish that it was otherwise ignorant of the deadlines, the
surety will be estopped from enforcing all statutory deadlines, including the statute
of limitations. The decision effectively abrogates the one-year statute of
limitations for payment bonds.
- 40 -
CONCLUSION
For these reasons, I agree that the bond at issue is a statutory bond. I dissent,
however, from absolving a claimant from the deadlines of subsection (2) simply
because the bond failed to refer to them. I would quash the district court’s decision
and direct that judgment be entered in favor of American Home.
BELL, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
Second District - Case No. 2D00-4404
(Polk County)
Robert E. Morris of The Morris Law Firm, Tampa, Florida and Hala A. Sandridge
of Fowler, White, Boggs and Banker, P.A., Tampa, Florida,
for Petitioner
Jamie Billotte Moses of Fisher, Rushmer, Werrenrath, Dickson, Talley and
Dunlap, P.A., Orlando, Florida,
for Respondent
Brett D. Divers and E.A. “Seth Mills, Jr. of Mills, Paskert, and Divers, P.A.,
Tampa, Florida,
on behalf of The Surety Association of America as Amicus Curiae
Dana G. Toole of Dunlap and Toole, P.A., Tallahassee, Florida,
on behalf of The Florida Transportation Builders Association and APACFlorida, Inc. as Amici Curiae
- 41 -
Pamela S. Leslie, General Counsel and Marianne A. Trussell, Deputy General
Counsel, Tallahassee, Florida,
on behalf of Department of Transportation as Amicus Curiae
- 42 -
