Fidelity Insurance Company sent out a letter that there was no bond on this job, so the bond claim was sent out anyway (within the deadline). Then, after the fact, they send out another letter that there is a bond. Do I need to send out a new or amended bond claim, even if I am now outside the deadline? Thank you!
This is a particularly unique fact pattern. First and foremost, I'm unsure why a surety company (Fidelity) would send a letter to participants on a project that they aren't involved in. In any sense, here's some thoughts on the matter.
Generally speaking, under Tex. Gov't Code §2253.041, the TX bond claim must be sent to both the prime contractor and the surety company in order to recover in a suit against the bond. However, given your circumstances, there may be some wiggle room here.
It may be a good idea to go ahead send a new bond claim (outside the deadline) to Fidelity referencing the timely bond claim that was sent; include a copy of the initial bond claim. If Fidelity decides to challenge the claim based on untimeliness, and they indeed sent a letter stating there was no bond coverage on their part; then that letter will be powerful piece of evidence in your favor. It's unlikely that courts will deny an otherwise valid bond claim if there is any evidence that Fidelity had provided false or misleading information that you relied on to your detriment.
In any sense, if you end up going unpaid, you can still rely on claims based on breach of contract, unjust enrichment, or claims under the Texas Construction Trust Fund Act.
Good luck!
Depending on whether you are a first or second tier sub, multiple notices may be required anyway. Second tier subs are required to send second and third month notice letters while first tier subs need only send the 3rd month notice letter. I would need to review the correspondence and bond documents to be sure of that the notices sent met the legal requirements, but if you're a first tier sub that sent proper notice timely, no further notice should be required regardless of that FIC claimed about the bond initially. If you need that input from an attorney's end, you can reach me via any method below. (To be clear my firm is not affiliated with LevelSet).
Very best,
Ben House
281-762-1377
ben@houseperron.com
Typically you would not, but an experienced construction lawyer should be contacted to ensure everything is being done correctly. Please feel free to reach out to me directly if I can be of any further assistance.