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Can we file suit against a bond if we missed the 90 day deadline for filing a claim against the bond?

FloridaBond Claims

We are an Ohio company that provided materials to a subcontractor for a public job in the State of Florida that is covered by the Miller Act. We inadvertently marked this job as paid within Levelset, so we missed the 90 day filing requirement from the last day materials were shipped. Do we have any recourse?

3 replies

Sep 19, 2019
In order to later file suit on a payment bond for a project covered by the Miller Act, those who were hired by someone other than the prime contractor must make a claim on the bond within 90 days of last furnishing. Otherwise, they won't be able to later file suit against the bond to recover payment, if necessary. While that's an important deadline, filing a Miller Act claim (and later a suit against the bond) isn't the only way to recover payment. For one, note that threatening to make a bond claim could potentially be effective - particularly when there isn't great clarity to when one would be due. So, informing the project's prime contractor and the customer that a bond claim will be made if payment doesn't come could potentially get the wheels turning on payment talks. Granted, if they're familiar with the deadlines for doing so and the timeframes of the supply dates, they may see through that as an empty threat. Further, threatening to file suit against the bond may be effective, too. Even outside of the bond context, though, sending a payment demand letter can help recover payment. Demand letters that set out specific legal threats and timeframes often go a long way to speeding up payment. And, Levelset users can send demand letters right through the platform. More on the use of demand letters here: Demand Letters for Contractors – How To Write One That Gets You Paid. Finally, if demands and threats aren't effective to force payment, keep in mind that traditional legal claims - like breach of contract, unjust enrichment, or some other applicable legal theory - are likely available, to some degree. While bond claims can expedite the payment claims process, falling back on more traditional recovery methods is always an option. Maybe not a preferable option, but an option nonetheless. And, just like with lien claims or bond claims, threatening to take legal action can often be enough to compel payment before filing suit actually becomes necessary.
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Mar 14, 2020
I just wanted to follow up and confirm you've been paid on your public job in Florida. If I can further assist your company with any unpaid invoices, please feel free to call or email. My firm can collect for you even when lien rights have expired or were never pursued. Mike Ross Miller, Ross & Goldman mross@mrgpartners.com (512)275-6412 Direct https://www.mrgpartners.com/levelset
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Mar 14, 2020
You may not have recourse against the Miller Act payment bond, but that doesn't mean you don't have other recourse, such as against the subcontractor you delivered on behalf of. Obtain counsel to make sure you pursue the best avenue to maximize collection.
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