Legal Memorandum: Notice Requirements for a Common Law Bond

Issue: In Florida, if a bond is considered a common law bond, should the notice provisions within the bond itself apply instead of statutory notice requirements?

If the bond is a common law bond the notice provisions continued in the bond document itself should not apply; rather, the notice requirements contained in § 255.05(2) should apply instead.  This argument is based on subsection (4) of § 255.05 which provides: “The 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).”  Note, however, that this subsection (4), by its express terms, imposes the notice requirements of subsection (2) only on bonds which are “described in subsection (1).”  See Southwest Florida Water, 355 So. 2d at 1260, for a discussion of whether a Bond is or is not as “described in subsection (1).”  See Fla. Stat. § 255.05(4).

The only case found to construe subsection (4) was  See Martin Paving Co., 646 So. 2d at 271.  In Martin the court based this conclusion first, on the express language of subsection (4):

The statutory scheme that has developed these various amendments to section 255.05 requires the bond to be properly recorded and to contain the information identified in subsection (1).  Subparagraph (4), in turn, expressly is limited to “bonds furnished for public works projects described in subsection (1).”  Although the syntax of the key sentence in subsection (4) is poor, the statutory scheme is clear.  We hold that unless subsection (1) is complied with, subsection (4) does not operate to require claimant’s compliance with subsection (2).  […]

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