In Arch Insurance Company v. John
Moriarty & Associates of Florida, Inc., 2016 U.S. Dist. LEXIS 172173, the U.S. District Court for the Southern District of
Florida granted Summary Judgment to a surety after finding that a general
contractor did not satisfy the procedural requirements of a performance bond before
it submitted a bond claim. The Defendant
was a general contractor who subcontracted the bond’s principal to furnish labor
and materials on a project. The
subcontract required the provision of a performance bond which the
subcontractor acquired through the Plaintiff.
At some point during the course of the project, the Defendant notified
the Plaintiff that it was considering to declare the subcontractor in default. Later
at the completion of the contract, the Defendant demanded a $995,239.83 payment
from the Plaintiff on the bond due to the performance of the subcontractor.
The terms of the performance
bond addressed specific procedures that must have been followed in the event of the
subcontractor’s termination for default.
The bond required that: 1) Notice be provided to the subcontractor and
Plaintiff that Defendant is, “considering declaring a Contractor Default”; 2) "Declares
a Contractor Default, terminates the Construction Contract and notifies [Plaintiff]"; and 3) "Agree[s]
to pay the Balance of the Contract Price…to [Plaintiff] or to a contractor selected to perform the Construction
Contract." Once those three condition precedents had been met, the bond
required that the Plaintiff be given the opportunity to mitigate its damages
through arranging for the completion of the defaulted work. Finally, seven days’ notice must be provided
before Defendant can make a demand on the bond.
The Court
found the first requirement was met by Defendant when it alerted the Plaintiff that
it was considering declaring a default.
The Court then went on to find that none of the other bond’s default or termination
requirements were met. The Defendant
never declared the subcontractor to be in default, never terminated the
subcontractor, nor paid the contract balance to the Plaintiff to complete the
work. In fact, the Defendant admits in
its response that it, "did not declare [subcontractor] in default, did not
terminate the Subcontract, and continued to administer the Subcontract substantially
as it had before the Pre Default meeting, with a few additions." The Court
stated that, “There can thus be no dispute that [Defendant] never allowed [Plaintiff] to mitigate its damages by arranging for the completion of the subcontract
itself. By depriving [Plaintiff] of its completion options, [Defendant] materially
breached the bond.”
In its
ruling, the Court found that the Defendant failed to comply with the terms of
the bond and as a result the Plaintiff was not liable for the nearly $1 million
demand.
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The author, Brendan Carter, is a contributor to The Dispute Resolver and a former Student Division Liaison to the Forum on Construction Law. He is an attorney and a Senior Consultant with Navigant’s Global Construction Practice based in Boston, MA. He may be contacted at 617.748.8311 or brendan.carter@navigant.com
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