In the mechanics lien world, whether you can recover attorney fees as part of your claim is dictated by state statute. The statute either says you can or can’t. Determining if attorney fees are recoverable as part of a US Miller Act Claim is a bit more complex, but the general answer is that the fees are recoverable if your contract for furnishing or performing labor entitles you to the fees.

A commonly cited case on the topic is United States of America, ex rel., Maddux Supply Company v. St. Paul Fire & Marine Insurance Company, et al, out of the United States Fourth Circuit Court of Appeals. The issue for decision was whether attorney fees were recoverable in a Miller Act action. The statute itself (40 USC §3131) makes no mention of attorney fee recovery, and the American Rule is that attorney fees are not recoverable unless the parties agree to it by contract or there is a statutory exception specifically providing for it.

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In the case of the Miller Act, as above stated, the statute does not specifically provide for the recovery of attorney fees. Further, since the Miller Act claim is against parties whom the claimant did not contract with (i.e. the general contractor or surety), how can there be said to be a contractual agreement between those parties to allow for attorney fees?

The court in the above-cited Maddux Supply case explained:

The Miller Act does not, by its own terms, provide for attorney’s fees or interest. Several circuits have held, however, that interest and attorney’s fees are recoverable if they are par tof the contract between the [contracting parties]…The rationale for those decisions – that attorney’s fees and interest may be “sums justly due” under the Miller Act – is consistent with this court’s rulings…

While the Maddux Supply case is a 4th Circuit appeals decision the ruling is followed generally in every district. Make sure you have a great construction or supply contract, therefore, and then reap the benefits in a Miller Act action.

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