Florida/Georgia Personal Injury & Workers Compensation

...(2007) (Agency for Health Care Administration for transportation services); § 944.105(1), Fla. Stat. (2007) (Dep't of Corrections). Other statutes enacted since 11.066 are consistent with an expansion of the State's contracting authority. For example, section 255.05(9), Florida Statutes (2007), relates to public works contracts entered into on or after July 1, 1999, and provides: On any public works project for which the public authority requires a performance and payment bond, suits at law and in...

...We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance: IF A STATUTORY PAYMENT BOND DOES NOT CONTAIN REFERENCE TO THE NOTICE AND TIME LIMITATION PROVISIONS OF SECTION 255.05(6), ARE THOSE NOTICE AND TIME LIMITATIONS NEVERTHELESS ENFORCEABLE BY THE *362 SURETY, OR IS THE CLAIMANT ENTITLED TO RELY UPON THE NOTICE AND TIME LIMITATIONS APPLICABLE UNDER THE COMMON LAW? Am....

...surety. However, Fulton did not pay Plaza. Thereafter, both Fulton and Cone filed for bankruptcy protection. As a result, Plaza sought payment from the bond[s]. Plaza, however, did not comply with all of the notice and time requirements contained in section 255.05(2) when perfecting these claims. American Home, 826 So.2d at 359. The trial court permitted Plaza to enforce its claims upon the bonds, despite the company's lack of compliance with the notice requirements of section 255.05(2). See id. at 358. The court held "that the bonds in this case were common law bonds rather than statutory bonds and that therefore American Home could not enforce the restrictions contained in section 255.05(2)." Id. at 360. On appeal, the Second District affirmed, stating: There can be no dispute that the DOT bond does not "contain reference to the notice and time limitation provisions of [section 255.05]." This is a mandatory requirement of subsection (6). Section 255.05(4) requires that the "payment provisions" be deemed statutory and subject to all the requirements of subsection (2)....

...llowed. [1] Unfortunately, we must resolve application of statutory provisions that are conflicting. We attempt to respect the provisions by affording each provision a field of operation rather than elevating any provision over another. Analysis The section 255.05 legislative scheme is designed to afford protection for those providing work and materials on public projects, because these persons and entities cannot perfect a mechanics' lien on public property....

...The payment portion of the bond contains the insurer's undertaking to guarantee that all subcontractors and materialmen will be paid and the performance part of the bond guarantees that the contract ... will be fully performed." Coastal Caisson, 523 So.2d at 793. Finally, section 255.05(2) affords protection to contractors and the contractors' sureties from being compelled to account to unknown suppliers and subcontractors by placing a burden on claimants to advise the contractor and surety of their participation on the project and to advise if they are not promptly paid....

...In accordance with the intent to protect various interests, including subcontractors, contractors, sureties, and the public, the straightforward language of the statute attempts to create a clear and simple method of bonding payment for, and performance of, public construction projects. Section 255.05(1) mandates the delivery and filing of a bond which guarantees the payment of subcontractors and performance of the underlying contract with the governmental unit prior to commencement of any public works project....

...ned on the face of the bond. [2] While subsection (1) *364 operates to guarantee payment to subcontractors, subsection (2) provides certain "condition[s] precedent to maintenance of an action" for payment under a bond delivered and filed pursuant to section 255.05(1)....

...of completion of the work of any nonpayment and an intent to make a claim upon the bond. [3] Indeed, the statute specifically provides that "[n]o action ... may be instituted against the contractor or the surety unless both notices have been given." § 255.05(2), Fla. Stat. (1995). Finally, subsection (2) provides that "[n]o action shall be instituted against the contractor or the surety on the payment bond ... after 1 year from the performance of labor." § 255.05(2), Fla. Stat. (1995). In 1980, the Legislature added subsections (4) and (6) to section 255.05....

...Subsection (4) specifically mandates that "[t]he 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)." § 255.05(4), Fla. Stat. (1995) (emphasis supplied). Subsection (6), on the other hand, specifically requires that all bonds executed under section 255.05 contain explicit reference to section 255.05 and the notice and time limitations of subsection (2). [4] It is the intersection of these *365 two subsections which provides the subject of the instant action. [5] Under the facts of the instant case, unavoidable internal conflict between subsections (4) and (6) of section 255.05 exists. Plaza, seeking protection under the payment portion of the bonds in question, failed to comply with the notice and time requirements contained in section 255.05(2) when perfecting its claims. See American Home, 826 So.2d at 359. In accordance with subsection (4), the payment provisions of American Home's bonds should be construed as statutory and, therefore, Plaza's failure to comply with 255.05(2) would preclude its claims upon the bonds. See Harvesters Group, Inc. v. Westinghouse Elec. Corp., 527 So.2d 257, 258 (Fla. 3d DCA 1988). Simultaneously with Plaza's failure to comply with the presuit notice requirements of section 255.05(2), however, American Home's bond failed to comply with the clear and unambiguous requirement of subsection (6) that the bond "make reference to this section [255.05] by number and ... contain reference to the notice and time limitation provisions of this section." § 255.05(6), Fla....

...In essence, the text of the statute before us on these facts mandates either that neither or that both parties before us should prevail. American Home should prevail because subsection (4) acts to label its bond a "statutory bond" subject to the time and notice provisions of section 255.05(2). However, American Home's bond also failed to comply with the requirements of subsection (6). Thus, according to Plaza, the bond does not warrant "statutory" treatment under section 255.05....

...Likewise, subsection (6) mandates that those seeking protection under public works bonds such as Plaza receive actual notice on the face of the bond of the conditions precedent to filing a claim upon the bond, but a separate subsection (4) specifically states that claims upon these bonds are subject to the strictures of section 255.05(2) "regardless of [the] form" of the bond....

...r. According to the petitioner, we should read the "regardless of form" language contained within subsection (4) to mean that compliance with the dictates of subsection (6) is completely irrelevant to enforcement of the notice and time provisions of section 255.05(2). American Home would have us conclude that as long as a bond is filed pursuant to section 255.05(1) to guarantee payment for services or materials delivered to a public works project, it should be deemed a statutory bond, and the mandate of subsection (6) is merely advisory or nothing more than a recommendation....

...with subsection (6) was accomplished. We cannot agree with either absolute position because such would, in essence, render a subsection of the statute meaningless. This Court cannot engage in a narrow, limited reading of an individual subsection of section 255.05 as the dissent urges, which would render another coequal provision of the statute entirely nugatory....

...5th DCA 1994) (concluding that "unless subsection (1) is complied with, subsection (4) does not operate to require the claimant's compliance with subsection (2)"). Clearly, the court below concluded that the petitioner's noncompliance with subsection (6) trumped any effect of section 255.05(4) and mandated that the payment provisions of the bonds in question be treated as common *367 law bonds....

...Ironically, the Fifth District Court of Appeal addressed a claim involving "the same surety and the same `Polk County Parkway'" project, and arrived at a different result in Florida Crushed Stone Co. v. American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002). In its decision, the Fifth District concluded: [A]s we read section 255.05(4), perhaps the most unambiguous portion of the statute, Florida no longer recognizes a common law payment bond given on a public works project. The payment provisions of all bonds given on a public works project regardless of form, the legislature tells us, shall be construed as statutory bond provisions subject to the requirements of section 255.05(2)....

...if such non-compliance has resulted from the failure of the bond to contain the information required by the statute. Id. at 716 (footnotes omitted). In essence, the Fifth District determined that the payment provisions of bonds delivered pursuant to section 255.05(1) are to be construed as statutory, but if a claimant's noncompliance with the notice requirements of section 255.05(2) resulted from the bond's failure to relate the information required by section 255.05(6) concerning statutory notice, the claim could proceed....

...This follows the general rule that the legislature does not intend to enact purposeless and therefore useless legislation. Id. at 245 (citations and quotation marks omitted); see also State v. Putnam County Dev. Auth., 249 So.2d 6, 10 (Fla.1971). It is this Court's "duty to read the several provisions of [section 255.05] as consistent with one another," id.; therefore, we must make every attempt to give effect and meaning to all of the provisions of section 255.05, and compliance or non-compliance must have some consequence....

...However, surety companies did not want the Legislature to mandate a particular bond form, expressed a preference for using their own forms, and found it a more "desirable solution" for the Legislature to include a statutory requirement that any bond include a reference to section 255.05 and to the statutory time limits....

...m, the bonds described in subsection (1) shall be deemed statutory bonds and subject to all of the notice and time requirements of subsection (2). The intent is also expressed in subsection (6), which provides that "[a]ll bonds executed pursuant to [section 255.05] shall make reference to this section by number and shall contain reference to the notice and time limitation provisions of this section. " § 255.05(6), Fla....

...ch contrary to the dissent's assertion is a basic and invaluable tool of statutory construction, see Ivey, 410 So.2d at 497, we view the approach adopted by the Fifth District Court of Appeal as the most viable method of effectuating the entirety of section 255.05, while preserving principles of fairness and equity. In accordance with our adoption of the approach formulated in Florida Crushed Stone as described herein, as well as the text of section 255.05(4), the payment provisions of bonds posted pursuant to the provisions of section 255.05(1) shall, "regardless of form, be construed and deemed statutory bond provisions, subject to all requirements of subsection (2)." § 255.05(4), Fla....

...We further conclude that once the claimant has made a prima facie showing that the bond is facially deficient under subsection (6) and establishes by a preponderance of the evidence that the claimant did not have actual notice of the provision, the surety is estopped from attempting to enforce the limitations of section 255.05(2), *370 which were not referenced on the face of the bond as statutorily required....

...the judicial system, and applies a field of operation to all provisions in a situation in which both parties clearly failed to comply with statutory requirements while justifiably relying upon portions of the statute. [8] The dissent would relegate section 255.05(6) into nonexistence....

...nsive to affording a statutory provision some field of operation in its entirety depending on the particular facts as we have addressed today. Conclusion In accordance with the foregoing, we conclude that the notice and time limitation provisions of section 255.05(2) may be enforceable, even where the statutory payment bond at issue does not contain reference to those notice and time limitation provisions in accordance with section 255.05(6)....

...ve staff analysis in statutory construction. I do not join in Justice Cantero's view on that subject. CANTERO, J., concurring in part and dissenting in part. I agree with the majority to quash the district court's decision. I disagree, however, that section 255.05, Florida Statutes (1995), contains conflicting provisions and that, to avoid a windfall to either side in this case, we must judicially impose a compromise view disconnected from any statutory language....

..., but also the one-year statute of limitations for bringing claims on the bond. I. THE STATUTORY LANGUAGE In determining whether the statutory deadlines can be enforced even though a bond does not refer to them, we must examine several provisions of section 255.05. I briefly describe each. Subsection (1) requires that persons contracting with any Florida public entity for construction or repairs must provide a payment and performance bond insuring completion of the work and payment of subcontractors. § 255.05(1), Fla....

...Further, the bond "shall be conditioned that the contractor perform the contract in the time and manner prescribed in the contract and promptly make *372 payments to all persons defined in s. 713.01." Id. Subsection (2) establishes certain deadlines claimants must meet to receive payment under the bond. § 255.05(2), Fla....

...en given." Id. Finally, subsection (2) establishes a one-year statute of limitations. Subsection (3) contains a form for a public construction bond, but specifies that the "bond required in subsection (1) may be in substantially the following form." § 255.05(3), Fla....

...That subsection states that "[t]he 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)." § 255.05(4), Fla. Stat. (1995) (emphasis added). I emphasize the "regardless of form" language because I believe it is ultimately dispositive. Finally, subsection (6) imposes notice requirements on the issuer of the bond. § 255.05(6), Fla....

...Subsection (2), which establishes the forty-five-day, ninety-day, and one-year deadlines, warns expressly that (1) "[n]o action" may be brought "unless both notices have been given" and that (2) "[n]o action" may be brought on the payment bond more than one year after performance of the contract. § 255.05(2), Fla....

...ts claim within the one-year period. See Am. Home Assurance Co. v. Plaza Materials Corp., 826 So.2d 358, 359 (Fla. 2d DCA 2002). Accordingly, under these two provisions alone, its action is barred. An examination of the other relevant subsections of section 255.05 reinforces this conclusion. Subsection (6) requires that all bonds refer to section 255.05 and to the deadlines in the statute....

...In contrast, subsection (4) provides that all bonds "regardless of form" are subject to the deadlines of subsection (2). That subsection, in turn, provides that a claim is barred if notice is not given or if brought after the one-year statute of limitations has run. § 255.05(2), Fla....

...I also find it significant that when the Legislature amended the statute to add subsections (4) and (6), it did not also amend subsection (3). See Ch. 80-32, § 1, Laws of Fla. Subsection (3) provides a form for a public construction bond, but this approved bond does not refer to the statutory deadlines. § 255.05(3), Fla....

...Under the majority's decision, however, even a bond that copies verbatim the statute's model form could lose the statutory protections. In this case, American Home issued the bond using a standard Department of Transportation bond that closely parallels the model bond. Like the model *375 bond, American Home's refers to section 255.05 generally (thus placing claimants on notice of the statute), but does not refer specifically to the deadlines....

...Further support for my reading of the statute is the fact that subsection (6) merely requires a redundant act—that is, notice of what the statute already says and what claimants are legally presumed to know. In the area of bonds in particular, courts have held that "the provisions of [section 255.05] become a part of the bond or the bond should be construed in light of the statute." Fuller Indus., Inc....

...State, 682 So.2d 149, 152 (Fla. 4th DCA 1996); Reason v. Motorola, Inc., 432 So.2d 644, 645 (Fla. 1st DCA 1983). Thus, Plaza Materials is presumed to know the operative law affecting its rights and obligations. I note that the bond in this case expressly cited section 255.05. Thus, Plaza Materials was warned to read it. Further underscoring this conclusion is the fact that a contractor is not required to provide claimants a copy of the bond. § 255.05(1), Fla....

...tion (8) in 1998. See Ch. 98-135, § 1, Laws of Fla. Under that provision, a contractor furnishing a payment bond may serve a written demand on a claimant not in privity with the contractor for a sworn accounting of the claimant's labor or services. § 255.05(8), Fla....

...[11] Plaza Materials has made this argument throughout this litigation. The majority correctly rejects that argument and holds, in accordance with the express language of subsection (4), that the bond is indeed a statutory payment bond. See majority op. at 368. Section 255.05(2), Florida Statutes (1995), however, provides that "[n]o action shall be instituted against the contractor or the surety on the payment bond or the payment provisions of a combined payment and performance bond after 1 year from the performance of the labor or completion of delivery of the materials or supplies." This one-year statute of limitations remains in the current statute. See § 255.05(2)(b)2., Fla....

...I would quash the district court's decision and direct that judgment be entered in favor of American Home. BELL, J., concurs. NOTES [1] We note at the outset that our decision today is directed only to resolution of the certified question before us. Thus, we limit the scope of our analysis to bonds posted pursuant to section 255.05 of the Florida Statutes (1995), and do not address whether application of section 337.18(1) of the Florida Statutes (1995) would otherwise impact this case because such statutory provision has not been called into issue by any party. This additional conflict in connection with public projects appears to need legislative attention along with the conflict we address today. [2] The pertinent portion of section 255.05 specifically provides: Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of a public building, for the prosecution and compl...

...Such bond shall be conditioned that the contractor perform the contract in the time and manner prescribed in the contract and promptly make payments to all persons defined in s. 713.01 whose claims derive directly or indirectly from the prosecution of the work provided for in the contract. § 255.05(1)(a), Fla. Stat. (1995). [3] The relevant text of section 255.05(2) provides: A claimant, except a laborer, who is not in privity with the contractor shall, within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish the contractor with a notice that he intends to look to the bond for protection....

...No action shall be instituted against the contractor or the surety on the payment bond or the payment provisions of a combined payment and performance bond after 1 year from the performance of the labor or completion of delivery of the materials or supplies. § 255.05(2), Fla. Stat. (1995). [4] The full text of subsection (6) provides: "All bonds executed pursuant to this section shall make reference to this section by number and shall contain reference to the notice and time limitation provisions of this section." § 255.05(6), Fla....

...on and time limitation or the provision of coverage in excess of statutory limits. Compare United Bonding Ins. Co. v. City of Holly Hill, 249 So.2d 720, 724 (Fla. 1st DCA 1971) (deeming bond a common law bond because the document failed to reference section 255.05 and applicable time limitation and provided coverage in excess of that required by the statute); S.W....

...xcess of that required by law) with State Dep't of Transp. ex rel. Consol. Pipe & Supply Co. v. Houdaille Indus., Inc., 372 So.2d 1177, 1178 (Fla. 1st DCA 1979) (determining that the failure to reference the notice requirement and time limitation of section 255.05 did not recast a statutory bond as a common law bond where the document specifically referenced the statutory provision and did not expand the scope of coverage beyond the statutory requirement)....

...1st DCA 1971) (noting that a concurring opinion in a United States Supreme Court case is not binding on a state court as precedent). [8] We note that the institutional capacity of this Court limits our power to address the inescapable internal conflict within section 255.05 in operation to an attempt to harmonize subsections (4) and (6)....

...Then in 2001 the Legislature amended section 95.11(2)(b), which provides a five-year statute of limitation for legal and equitable claims on a written instrument, to specify that claims against payment bonds "shall be governed by the applicable provisions of ss. 255.05(2)(a)2....

...orts to amend. "In the Auto Owners case suit was brought on a contractor's bond given pursuant to Chapter 255, Florida Statutes. The defendant relied upon a one-year statute of limitations contained in an amendment which added a second subsection to Section 255.05....

...ause of action upon the bond so executed. Judgment therefor was directed and entered in its favor. The validity of the statute was raised for the first time in two affirmative defenses presented by the defendants. These defenses alleged that Chapter 255.05, Florida Statutes, F.S.A., violates Section 12 of the Declaration of Rights of the Florida Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States because said statute deprived the defendants of their prop...

...igation of contracts." The filing of this defense is the first mention of the statute in these proceedings. The only other reference is found in the order of the trial judge on a motion for summary decree where, in paragraph 5, he held "that Statute 255.05 under which Graybar Electric Company seeks to recover upon the performance bond is constitutional." The cause of action in this case does not arise out of the statute but out of the performance bond....

...Lissenden Co., Inc., as principal, and Standard Accident Insurance Company, as surety, had become bound in the sum of $599,000 conditioned on the performance by the former, of a contract for the remodeling of the Palm Beach County Court House. Evidently the execution of the bond was prompted by Sec. 255.05, Florida Statutes 1955, F.S.A., for the principal and surety, defendants in the circuit court and appellants here, in their affirmative defenses, charged that the law was unconstitutional because it contravened Section 12 of the Declaration of...

...rment of the obligation of contracts. The cause proceeded upon depositions and pleadings until a motion was made for the entry of a summary judgment against the defendants. Then the circuit judge made the definite, unequivocal ruling "[t]hat Statute 255.05, under which Graybar Electric Company [the real party in interest] seeks to recover upon the performance bond is constitutional." Eventually the issue of damages was submitted to a jury with the result that a verdict was rendered in favor of the plaintiff....

...From the consequent judgment an appeal was brought to this court by virtue of the constitutional provision quoted in the beginning. In the assignments of error it was asserted that the court erred, in the summary final judgment, by holding that Sec. 255.05, supra, was constitutional hence did not deprive the appellants of property without due process of law or impair the obligation of contract. When the appellants filed their brief they posed the question whether or not Sec. 255.05, supra, impaired the freedom of the general contractor, the principal on the bond, to contract or deprived it of property without due process of law in violation of the parts of the Federal and State Constitutions to which there has already been allusion....

...of the statute under which Plaintiffs have proceeded and procured their judgment." To my view, the history of this litigation as it has been detailed manifests the submission to the trial court, and to this court, of the question whether or not Sec. 255.05, supra, is constitutional....

...Carroll, supra, whether or not it is now proposed to depart from the sound conclusion reached in that case. To repeat, on this phase of the litigation it is my firm view that the court is obligated to entertain, discuss and decide whether or not Sec. 255.05, supra, is valid....

...nd cause our jurisdiction to vest, the while being totally immaterial to the disposition of the litigation. The only way the appellants could have reached here, in this case, was by appeal from a decision "directly passing upon the validity" of Sec. 255.05, supra, and the only way they could stay here was for this court to fasten its jurisdiction on the whole case because of the substantiality of the basic question of the statute's constitutionality....

...right, only * * * from final judgments or decrees directly passing upon the validity of a state statute * * or construing a controlling provision of the Florida or federal constitution. * *" Section 4(2), Article V, Florida Constitution, F.S.A. [2] Section 255.05 F.S....

...labor, material or supplies shall have a right of action, and may bring suit in the name of the state, or the city, county, or political subdivision, prosecuting said work, for his use and benefit, against said contractor, and sureties. * * *" F.S. § 255.05, F.S.A....

...with those of the appellant Auto Owners Insurance Company which instituted the appeal to this Court. Snyder suggests that the use plaintiff was estopped to assert the unconstitutionality of Chapter 59-491, supra, which was enacted as an amendment to Section 255.05, Florida Statutes, F.S.A. He grounds his position on the fact that the use plaintiff relied on the original portion of Section 255.05, supra, in bringing the action....

...The provisions which were later assaulted were contained in the amendment to the statute and were never employed by the use plaintiff as the basis of its complaint. We reach the essential question. Is Chapter 59-491, supra, constitutional? The first unnumbered paragraph of Section 255.05, Florida Statutes, requires a contractor who agrees to construct or repair a public building to file a performance bond which, among other things, shall include an obligation "that such contractor shall promptly make payments to all pe...

...plies, used directly or indirectly by the said contractor, or subcontractors, in the prosecution of the work provided for in said contract; * * *." Chapter 59-491, Laws of Florida, 1959, purports to be an amendment to the above summarized portion of Section 255.05, supra. For clarity of understanding the assault on the constitutionality of Chapter 59-491, supra, we publish it in full. Omitting the title and enacting clause, the statute reads as follows: "Section 1. Section 255.05, Florida Statutes, is amended by adding an unnumbered paragraph to read: "255.05 Bond of contractor constructing public buildings; suit by materialman, etc....

...he act as revised or section, or subsection of a section, or paragraph of a subsection of a section, as amended, shall be reenacted and published at length. " (Emphasis added.) The use plaintiff contends that Chapter 59-491, supra, purports to amend Section 255.05, Florida Statutes, but fails to reenact or publish at length the section of the statute which is being amended....

...parate research and analysis of the statute which is being amended, it does not meet the requirements of Article III, Section 16, supra. In order to ascertain the full impact of Chapter 59-491, supra, which purports to add an unnumbered paragraph to Section 255.05, supra, it would be necessary to refer to the existing statute which was not republished in the amendatory act....

...V, § 3(b)(3), Fla. Const. Petitioner surety and Turner Construction, Inc., entered into an agreement whereby petitioner would provide surety bonds for construction projects which Turner contracted to perform for various government bodies. As required by section 255.05, Florida Statutes (1983), [1] Turner obtained payment and performance bonds for the benefit of each government body and for subcontractors and other persons supplying labor, material, and services in the construction projects....

...reditors have any claim on the funds until the contractor performs. The second safeguard is a requirement that the contractor obtain payment and performance surety bonds. Because of their importance, payment and performance bonds are mandatory under section 255.05 for government projects and are commonly employed by prudent private owners....

...Gibbs and Fidelity sought their attorney's fees, including those amounts they had been ordered to pay Page, pursuant to the general contract. [3] They also argued that the Board's claim against Fidelity was against the bond and, therefore, they were entitled to an award of attorney's fees as the prevailing party pursuant to section 255.05, Florida Statutes (1987)....

...2d DCA 1988), certified the following question of great public importance: MAY A SUBCONTRACTOR FURNISHING LABOR, SERVICES OR EQUIPMENT WORTH OVER $200,000 ON A PUBLIC WORKS PROJECT LAWFULLY WAIVE ITS RIGHTS TO THE CONTRACTOR'S BOND REQUIRED PURSUANT TO SECTIONS 255.05 AND 337.18, FLORIDA STATUTES (1985)? We have jurisdiction....

...We answer the certified question in the negative. C-Way Construction contracted with the Department of Transportation (DOT) to make improvements to a bridge in Sarasota County. The contract provided that C-Way would furnish a payment and performance bond in accordance with sections 255.05 and 337.18, Florida Statutes (1985)....

...760, 767, 153 So. 87, 90 (1934). See also City of Miami v. Benson, 63 So.2d 916 (Fla. 1953). Coastal contends the legislature intended to protect the owner of the project, i.e., the public, by requiring that the subcontractors be paid. Because sections 255.05 and 337.18 are for the protection of the public, Coastal argues that their provisions cannot be waived by an individual subcontractor....

...Besides being in the public's financial interest, keeping subcontractors secure also lessens the risk of delay caused by litigation. American argues that this Court should consider the mechanics' lien statute, section 713.20(2), Florida Statutes (1987), in construing the waiver of rights under section 255.05 because the payment bond is merely a substitute for a mechanics' lien....

...88-397, Laws of Fla. Although not controlling in this case, the amendment illustrates a legislative policy against waiver. Moreover, even though the legislature provided certain exemptions, which do not apply here, from the bond requirement in *959 section 255.05, [2] it chose not to allow unrestricted waiver....

...(1986), and federal case law, which permit waiver. The district court stated: "The federal decisions, none of which involve the Florida statutes at issue, are not binding on this court." Coastal Caisson Drill Co. v. American Casualty Co., 523 So.2d 791, 794 (Fla. 2d DCA 1988). We agree. [2] § 255.05(1)(a), Fla....

...actors. Upon completion of the work by McDonald on October 7, 1980, Roberts refused to pay $23,721.81, the amount claimed by McDonald to be due. On March 3, 1981, McDonald filed a complaint against Roberts seeking recovery under the bond pursuant to section 255.05, Florida Statutes (1979). The portion of the bond which concerns us here states: It is stipulated, understood and agreed that the payment bond provisions hereof are statutory in nature, strictly limited to the provisions of section 255.05, Florida Statutes, and all third parties claiming under the payment bond provisions hereof are limited to all procedures and requirements of section 255.05, Florida Statutes......

...ondition attached to the right to sue, controlling no matter in what form the action is brought. [2] It is appellees' position, with which the trial court agreed, that the surety bond furnished by appellant is not the statutory bond required by F.S. Section 255.05, F.S.A., which carries the one-year limitation period for bringing actions thereon....

...Appellees also invite attention to the fact that the bond contains no limitation with respect to the time within which a materialman's suit on the bond may be commenced. Appellees argue that the bond furnished by appellant in this case is a common law bond which not only affords the minimum coverage required by F.S. Section 255.05, F.S.A., but grants extensive additional coverage beyond that required by the statute....

...[3] The decisions rendered by the courts of this state appear to recognize the distinction between statutory performance bonds issued by sureties in connection with contracts for the construction of public works furnished in accordance with the provisions of F.S. Section 255.05, F.S.A., and common law bonds furnished in connection with such contracts which are not issued in accordance with or for the purpose of complying with the provisions of the statute....

...furnished in connection with a public improvement contract and containing such coverage as agreed upon between the obligor and the obligee, and a surety bond furnished in accordance with and for the purpose of complying with the requirements of F.S. Section 255.05, F.S.A., and containing only the minimum coverage required by the statute....

...public improvement contract was covered by the contractor's performance bond furnished to the obligee. The surety company took the position that the performance bond furnished by it was a statutory bond issued for the purpose of complying with F.S. Section 255.05, F.S.A., and was limited to the minimum coverage specified in the statute which did not include costs incurred for insurance premiums....

...lls for `services' and to complete all `work comprehended by the contract free and clear of all liens for labor or materials, or otherwise,' we are persuaded that it contemplates performances and a guaranty beyond those specifically required by F.S. Section 255.05, F.S.A." Based upon the foregoing authorities we hold that statutory surety bonds furnished for the stated purpose of complying with the requirements of F.S. Section 255.05, F.S.A., are entitled to the benefits and protection of that statute, including the limitation of one year within which suits by materialmen must be brought against the surety company on its bond. Common law performance bonds issued in connection with the construction of public works which are not furnished in accordance with and for the sole purpose of complying with the requirements of F.S. Section 255.05, F.S.A., are not affected by the time limitation for bringing suits as set forth in the statute....

...imitations regarding suits on written contracts. It is our view that had appellant surety company intended that the performance bond which it issued to Rowell be a statutory bond given for the sole purpose of meeting the minimum requirements of F.S. Section 255.05, F.S.A., it would have so provided in the bond itself and specified the time limitation of one year within which suits could be brought against it on the bond as restricted by the statute....

...ted by the protection of the bond. [8] We conclude that the trial court did not err in its construction of the bond involved in this case in holding it to be a common law bond not subject to the limitation of actions against it as restricted by F.S. Section 255.05, F.S.A. The judgment appealed is affirmed. CARROLL, DONALD K., Acting C.J., and SPECTOR, J., concur. NOTES [1] F.S. § 255.05, F.S.A....

...At issue is whether Major has alleged sufficient compliance with certain statutory notice provisions to entitle it to recover against the contractor and surety. A mechanics lien cannot be secured against property held by a political subdivision. § 713.01(14), Fla. Stat. (1979). However, Section 255.05(1), [1] Florida Statutes (1979), provides an alternative remedy to subcontractors and suppliers in the form of a right of action against the contractor and the contractor's performance bond. Section 255.05(2) conditions the grant of the cause of action upon compliance with the following notice provisions: A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or...

...School Board and to USF&G. When payment was refused Major filed suit against Fasano and USF&G to recover on the USF&G bond. The trial court dismissed Major's claim with prejudice on the basis that Major failed to comply with the notice provisions of Section 255.05(2), Florida Statutes (1977)....

...However, as in most cases of statutory construction, our primary task is to determine the intent of the legislature and, if possible, to see that the purpose of the statute is accomplished. Gracie v. Deming, 213 So.2d 294 (Fla. 2d DCA 1968); Worden v. Hunt, 147 So.2d 548 (Fla. 2d DCA 1962). Clearly, the major purpose of Section 255.05(1) is to protect subcontractors and suppliers by providing them with an alternative remedy to a mechanics lien on public projects. [3] City of Ft. Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1969). In addition, however, Section 255.05(2) protects the contractor and the contractor's surety from having to account to unknown suppliers and subcontractors by putting the burden on the claimants to advise the contractor and surety of their participation on the project and to advise if they are not promptly paid....

...The copy of the notice served on the contractor also reflected that a copy was being sent to the contractor's surety, further indicating to the contractor the supplier's awareness that the surety had bonded this particular project. In essence, all of the factual information required by Section 255.05(2) was provided to the contractor and the surety....

...t to rely on the bond. However, where it is conceded that the only possible legal consequence of putting the contractor and surety on written notice of appellant's participation in the project was to secure appellant's rights under the provisions of Section 255.05(2), we think that an obvious implication of the notice is the expression of such an intent....

...We do not think the surety and the contractor were entitled to ignore this implication. We conclude that this notice, subject to any claim by the appellees that they have actually been prejudiced by the omissions alleged, constituted substantial compliance with the requirements of Section 255.05(2)....

...suppliers. Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings consistent herewith. OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concurs. BERANEK, J., concurs in conclusion only. NOTES [1] Section 255.05(1) provides: Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of any public building, for the prosecution and completion of...

...ruction of Highlands County and the chairman of the board. The theory of the action was that the members of the board failed to perform their ministerial duty of requiring the *192 contractor to furnish a bond conditioned in the manner prescribed by section 255.05, Florida Statutes, F.S.A., so as to protect persons supplying material and labor....

...m a school contractor a bond for the faithful performance of his contract as prescribed by law, and section 235.32 of the school code specifies that the amount of the bond by the school contractor shall be one hundred per cent of the contract price. Section 255.05 is the general statute relating to bond requirements of a contractor constructing public buildings. Section 255.05 about which we are here concerned reads: "Any person entering into a formal contract with the State of Florida, any county of said state, or any city in said state, or any political subdivision thereof, or other public authority, for t...

...of the board of public instruction to comply with the statute, and that if the bond did not protect the materialman because of a technicality, that was not ministerial but concerned the exercise of judgment The purpose of the provision contained in section 255.05, that a contractor shall promptly make payments for labor, material, and supplies, is to protect laborers and materialmen whose labor and material are put into public buildings or projects on which they can acquire no lien....

...The primary case urged by the appellant is the case of Warren for Use and Benefit of Hughes Supply Co. v. Glens Falls Indemnity Co. In that case, Suwannee County Board of Public Instruction failed to demand and receive from the contractor the bond required by section 255.05. The Supreme Court held that the school board had a mandatory and ministerial duty to see to it that the bond required by section 255.05 was executed, posted, and approved before the work was commenced, and that the failure to perform such duty results in individual tort liability of members of the board....

...requirement so as to afford protection to persons supplying labor and material in the prosecution of the public work provided for under the contract. In instances where a person has not been paid for labor, material, or supplies for any public work, section 255.05 provides that such person supplying them shall be furnished with a certified copy of the contract and bond upon which said person supplying such labor, material, or supplies shall have a right of action and may bring suit in the name o...

...The motion to dismiss was based, among other things, on the fact that the complaint on its face showed that the contract for which the performance bond was posted was for the construction of a public building and that the action was barred by the one-year limitation set forth in § 255.05, Fla....

...1st DCA 1991), based upon certified direct conflict with Moretrench American Corp. v. Taylor Woodrow Construction Corp., 565 So.2d 861 (Fla. 2d DCA 1990). We have jurisdiction based on article V, section 3(b)(4) of the Florida Constitution. The issue here is whether section 255.05(2), Florida Statutes (1989), requires a supplier of rental equipment, who is not in privity with the contractor, to provide notice of nonpayment within ninety days from last use of the rental equipment, or within ninety days from the last physical delivery of rental equipment to the job site. We hold that section 255.05(2) is clear on its face and requires a claimant to give notice within ninety days of the last physical delivery of rental equipment. *1155 In November 1988, Taylor Woodrow Construction Corporation (Taylor Woodrow) contracted with the City of Jacksonville to build a pretrial detention facility. Pursuant to section 255.05, Taylor Woodrow posted a statutory bond issued by American Home Assurance Company....

...Ross in turn entered into an equipment rental contract with The Burke Company (Burke), in which Burke agreed to rent Ross equipment to be used in the building of the pretrial detention center. Burke furnished Taylor Woodrow with a notice of intent to look to the bond for payment on December 22, 1988, pursuant to section 255.05(2). Section 255.05(2) requires that notice to seek payment from the bond be given within forty-five days of commencing performance....

...Seeking reimbursement from the bond, Burke filed a complaint alleging nonpayment by Ross. The trial court granted Taylor Woodrow's motion for summary judgment based on the Second District Court of Appeal's holding in Moretrench. In Moretrench, the district court found that the "completed delivery" language of section 255.05(2) is clear on its face and obligates the supplier to provide notice within ninety days from the last day the rental equipment is physically delivered to the job site. Applying Moretrench, the trial court concluded that Burke's notice failed because it occurred more than ninety days after the last physical delivery of the rental equipment. On appeal, the First District Court of Appeal found section 255.05(2) to be ambiguous and reversed the summary judgment. The district court read section 255.05(2) in pari materia with Florida's Mechanics' Lien Law, [1] and concluded that the notice period commenced on the last date of actual use of the rental equipment....

...Sanford-Orlando Kennel Club, Inc., 434 So.2d 879, 882 (Fla. 1983). The court should look to legislative history only if the court determines that a statute's language is ambiguous. Department of Legal Affairs, 434 So.2d at 882. Thus, the threshold question presented in this case is whether section 255.05(2) is clear on its face. Section 255.05(2) provides in relevant part: A claimant who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery o...

...Burke contends that the statute is essentially remedial in nature, and thus, it should not be interpreted literally to produce a result that limits a supplier's protection under the payment bond to a period of ninety days only. Thus, Burke concludes that the legislative purpose is best served by construing section 255.05(2) in such a manner as to avoid an unnecessary hardship to the supplier. Because section 255.05(2) is clear on its face, this Court must construe the words chosen by the legislature in their plain and ordinary meaning....

...Although the legislature may not have envisioned all of the situations in which suppliers would not be entitled to recover under the bond, the remedy for any dissatisfaction with the results in cases such as the instant case lies with the legislature and not with this Court. [2] Thus, we hold that section 255.05(2) requires a supplier of rental equipment, who is not in privity with the contractor, to provide notice of nonpayment within ninety days from the last physical delivery of rental equipment to the public project....

...We remand this case for proceedings consistent with this opinion. It is so ordered. BARKETT, C.J., and OVERTON, SHAW, GRIMES and KOGAN, JJ., concur. McDONALD, J., dissents. NOTES [1] § 713.01, Fla. Stat. (1989). [2] We note that the legislature has amended section 255.05(2), Florida Statutes (1989)....

...and in stead of its claim upon defendants' bond to the nominal plaintiff." The Statute under which the general contractor furnished his bond does not contemplate or require the furnishing of such a bond by a subcontractor to the general contractor. § 255.05, Florida Statutes, F.S.A....

...Russ of Ranston E. Davis, Leesburg, for appellees. SCHEB, Judge. The issue presented by this appeal is whether a performance, payment, and guaranty bond delivered to a governmental entity incident to a public works contract was a statutory bond given pursuant to Section 255.05, Florida Statutes (1975), or a more broadly written common law bond....

...From this order, Thermal appeals. We reverse and hold that Thermal's second amended complaint alleged sufficient ultimate facts to establish a claim under a common law bond, i.e., one which grants coverage in excess of the requirements imposed under Section 255.05. Since the appellees' bond was furnished incident to a government project, we first examine the bonding requirements imposed by law for work on public works projects. Section 255.05, Florida Statutes (1975) states: (1) Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of any public building for such state, county, city, political subdivision, or public authority ......

...Rather, the courts recognize a distinction between a statutory bond issued in connection with such a project and a common law bond. A bond, even though furnished pursuant to a public works contract, will be construed as a common law bond if it is written on a more expanded basis than required by Section 255.05, Florida Statutes (1975)....

...The bond furnished SWFWMD by Miller and American referred to the construction agreement; however, the bond did not provide that it was furnished pursuant to the statutory requirements for bonds on public works projects, nor did it refer specifically to Section 255.05....

...tor] labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors in the prosecution of the work... ." This difference is significant because this statutory language has been construed to limit recovery under a Section 255.05 bond to sub-subcontractors....

...The bond was a payment, performance, and guaranty bond. It also provided additional coverage for patent infringement and several other matters. The trial court struck the surety's defense that the suit was barred by the one-year statute of limitations contained in Section 255.05, and the surety appealed. The First District Court of Appeal affirmed, finding that the surety's undertaking was a common law bond and therefore not controlled by the one-year limitation period of Section 255.05....

...Speaking for the court, Judge Wigginton stated: It is our view that had appellant surety company intended that the performance bond which it issued to Rowell be a statutory bond given for the sole purpose of meeting the minimum requirements of F.S. Section 255.05, F.S.A., it would have so provided in the bond itself and specified the time limitation of one year within which suits could be brought against it on the bond as restricted by the statute....

...In short, we think the United case is controlling and requires reversal of this case. [1] One further point merits brief discussion. Appellees Miller and American contend that the trial court properly dismissed Thermal's complaint because the attached notice did not comply with the requisites of Section 255.05(2). The notice requirements of Section 255.05(2) are not binding upon those claiming redress against a common law obligation....

...Plaintiff, a materialman, was by final summary judgment declared to be entitled under his contract to compensation for labor and material furnished to a subcontractor in connection with construction of a public school for the Broward County *614 Board of Public Instruction. Section 255.05, Florida Statutes, F.S.A., had been advanced as authority for the claim. Defendant corporation, surety on the performance and payment bond, pleaded generally that it was not indebted to plaintiff and raised with particularity a contention that plaintiff was barred by the one year statute of limitations added to section 255.05 through legislative amendment which had become effective August 4, 1959....

...Final summary judgment for plaintiff was ordered on January 26, 1961, and recorded on March 8, 1961. Defendant, appealing from the summary judgment, advances but one point; it argues that plaintiff by failing to file suit within the one year period provided by the amendment to section 255.05 is barred from instituting or prosecuting any action upon the claim against defendant....

...onable time is provided within the statute itself for asserting and enforcing causes of action that have already accrued. See H.K.L. Realty Corporation v. Kirtley, Fla. 1954, 74 So.2d 876. This exception is of no concern here, since the amendment to section 255.05 contains no such provision....

...Instead, the presumption is that a legislative act operates prospectively only, unless there is a clear showing of retroactive intent. State v. Green, Fla. 1958, 101 So.2d 805. Rules of statutory construction support the position that the one year limitation imposed through the 1959 legislative amendment upon section 255.05, Florida Statutes, F.S.A., should not yield a retrospective interpretation....

...nstruction projects, BCI obtained a performance and payment bond pursuant to the applicable statute of this state which requires contractors and subcontractors to furnish a payment and performance bond on public works and public projects. Fla. Stat. § 255.05 (1986)....

...This *827 supply contract provided for payment in Hillsborough County. Plaintiff filed his suit in Hillsborough County against the defaulting subcontractor and joined as defendants the prime contractor and its surety. The suit was brought pursuant to § 255.05, F.S.A., which provides for enforcement of mechanics' and materialmen's liens against a prime contractor and its surety when construction work has been performed for the state....

...r venue is Leon County where the work was performed. Their argument is that the prime contractor was not a party to the supply contract which was entered into in Hillsborough County; and that since they are the real parties in interest in this case, § 255.05, F.S.A., shows on its face a legislative intent that suits brought thereunder may only be maintained against the prime contractor at the place where the materials were supplied. Plaintiff states that § 255.05, F.S.A., is not a venue statute and that the general venue provisions in Chapter 46, F.S.A., are controlling....

...Lawrence, II and Patricia Hart Malono of Cummings & Lawrence, P.A., Tallahassee, for appellee. THREADGILL, Judge. Coastal Caisson Drill Company (Coastal) appeals the dismissal with prejudice of its *792 claim against American Casualty Company (American) on a payment and performance bond issued pursuant to sections 255.05 and 337.18, Florida Statutes (1985)....

...In 1986, C-Way Construction Company (C-Way) contracted with the Florida Department of Transportation (DOT) to make improvements to New Pass Bridge in Sarasota County. The contract indicated that the contractor would be required to furnish a bond in accordance with sections 255.05 and 337.18, as did DOT's original request for bids....

...uyer. 456 So.2d at 1293. Therefore, allowing waiver of the provision was held against public policy. In the case at bar, the public interest in providing protection for subcontractors on public projects is even more compelling. The plain language of section 255.05 has, from its inception, stated that the required bond is to be conditioned on payment to the subcontractors and other workmen. The Florida Supreme Court held in Fulghum v. State, 92 Fla. 662, 109 So. 644 (1928), that section 255.05 was enacted to afford workmen on public projects protection similar to that provided on private works by the mechanics' lien in chapter 713....

...We think it is thus apparent that one purpose of the statute was to assure payment of the workers. As in Asbury Arms, however, the statute here at issue was enacted to protect the public as well as the named recipients. The Fifth District has defined a payment and performance bond issued pursuant to section 255.05 as "an agreement to protect the owner of a building from two particular defaults by a builder....

...Towerhouse Condominium, Inc. v. Millman, 475 So.2d 674, 676 (Fla. 1985). This court has previously noted the disparity between the coverage afforded by the mechanics' lien law relating to private work and that of the public construction bond issued pursuant to section 255.05....

..."When the legislature has actively entered a field and clearly indicated its ability to deal with such a policy question, the more prudent course is for the court to defer to the legislative branch." Bankston v. Brennan, 507 So.2d 1385 (Fla. 1987). American argues that because section 255.05 was patterned after the Miller Act, 40 U.S.C....

...Co., 802 F.2d 1164 (9th Cir.1986): Warrior Constructors, Inc. v. Harders, Inc., 387 F.2d 727, 729 (5th Cir.1967). The federal decisions, none of which involve the Florida statutes at issue, are not binding on this court. Moreover, the provisions of section 255.05 here at issue originated in 1915, and thus predated the Miller Act, which did not become effective until 1935, by some twenty years. In light of our concern for the public policy of the State of Florida, we decline to construe section 255.05 under the federal interpretation of the Miller Act in this instance....

...Blount International Ltd., 519 So.2d 1009 (Fla.2d DCA 1987). The appellee cites certain dicta from our decision in Settecasi v. Board of Public Instruction of Pinellas County, 156 So.2d 652 (Fla. 2d DCA 1963) for the proposition that a materialman may waive rights to a section 255.05 bond by agreement....

...s demonstrating waiver were set forth. The decision did not address whether waiver would have been a valid defense had it been properly pled. We conclude that allowing private waiver of the statutory right to sue on the construction bond required by section 255.05 could frustrate the intent of the legislature by undermining the bidding process, and by risking state involvement in contractor/subcontractor disputes and the consequent delays of public works projects....

...Finding this issue to be of great public importance, we certify the following question to the Florida Supreme Court: MAY A SUBCONTRACTOR FURNISHING LABOR, SERVICES OR EQUIPMENT WORTH OVER $200,000 ON A PUBLIC WORKS PROJECT LAWFULLY WAIVE ITS RIGHTS TO THE CONTRACTOR'S BOND REQUIRED PURSUANT TO SECTIONS 255.05 AND 337.18, FLORIDA STATUTES (1985)? Reversed and remanded....

...Background On May 26, 1994, Plaintiff School Board of Escambia County ("School Board") contracted with United Southco, Inc. ("Southco") to provide demolition and waste removal work on the A.V. Chubbs Middle School Project in Escambia County, Florida (the "demolition project"). Pursuant to Section 255.05 of the Florida Statutes, and as a condition of the contract, Southco posted a performance bond conditionally covering work performed under the Contract....

...Florida Fancy delivered material to Tuttle's, a landscaping subcontractor, for use in a public construction project located in Palm Beach County. In its complaint filed in Manatee County, Florida Fancy asserted a claim against a payment bond issued by Preferred for Tuttle's pursuant to section 255.05, Florida Statute (1991)....

...works project. The City of Fort Lauderdale entered into a contract for certain municipal improvements with Hardrives Company, a Florida corporation. Hardrives supplied a bond executed by Continental Casualty Company as surety under the provisions of § 255.05, F.S.A....

...accordance with the provisions of the applicable statute. In further compliance with the provisions of the statute, suit was brought within one year. The defendants Hardrives and Continental Casualty Company filed affirmative defenses claiming that § 255.05, F.S.A....

...pplying materials to sub-subcontractors. The court below, relying on Federal decisions construing the Miller Act, 40 U.S.C. § 270a et seq. (1935), held that sub-subcontractors and materialmen supplying said sub-subcontractors were not covered under § 255.05, F.S.A. The question for determination is: Is the contractor liable and does a bond for the protection of the public body cover the liability under such circumstances? § 255.05, F.S.A., was patterned after the federal Miller Act and has for its purpose the protection of materialmen, laborers and the like, whose labor and materials are put into public works projects, upon which they can acquire no lien, by substitu...

...Columbia Casualty Co., 1931, 101 Fla. 186, 133 So. 850, 77 A.L.R. 1; 43 Am.Jur. Public Works and Contracts, § 139 (1956), but such a salutory policy does not justify ignoring plain words and imposing unlimited liability on payment bonds. *341 A careful analysis of § 255.05 discloses that the bond shall cover the obligations of the contractor to promptly "make payments to all persons supplying him labor, material and supplies, used directly or indirectly by the said contractor or subcontractors " in the prosecution of the work....

...mpelled to look to the definition of that term as used in the Florida Mechanics' Lien Law, § 84.01, Troup Brothers, Inc. v. State, Fla.App. 1961, 135 So.2d 755, and that by using that definition a materialman to a sub-subcontractor is covered under § 255.05, F.S.A. It is true that in cases of ambiguity or in construction of similar provisions of related statutes that the interpretation of the Mechanics' Lien Law, Chapter 84, would be used in construing the provisions of § 255.05....

...to said sub-subcontractors and provides for their rights. On the contrary, the public works bonding statute does not define or cover, directly or indirectly, or by implication such classes of claimants. Although the provisions of the Miller Act and § 255.05, F.S.A., are different in a number of respects, the principles underlying both are the same....

...This appeal is taken from a final judgment in favor of the appellee for materials furnished a subcontractor in an action brought by it against the subcontractor, contractor and surety upon the performance bond executed under the provisions of F.S. Section 255.05, F.S.A....

...From time to time Dunn made certain payments on the account which were credited to the overall general indebtedness and not specifically to the Winchester contract. Because of financial difficulties, Dunn failed to pay the outstanding balance due the appellee, whereupon after due notice, suit was instituted pursuant to F.S. Section 255.05, F.S.A., against Dunn, Winchester and the surety for the balance due on the Florida State University job. From an adverse judgment the appellants, contractor and surety appeal. The appellants first argue that the trial court was in error in not construing F.S. Section 255.05, F.S.A., in pari materia with F.S....

...The appellants insist in effect that the appellee is limited in recovery to that sum in the affidavit of subcontractor Dunn furnished contractor Winchester, showing a much smaller balance due than proved at the trial. The controlling statute, F.S. Section 255.05, F.S.A., allows no such interpretation to defeat the creditor....

...If any part of the work is sublet or the contractor assigns his contract, it is an easy matter for him to take security from the subcontractor that all obligations for labor and material shall be paid. * * *" The argument is further made that the appellee is bound by the amount fixed in the notice it furnished under Section 255.05, and no recovery can be had for an amount in excess thereof as proved at the trial....

...ought recovery against the surety. The appellant's notice to the general contractor of delivery of the equipment and of nonpayment therefor was not delivered to the general contractor within 90 days after the delivery of the equipment as required by section 255.05(2), Florida Statutes (1987)....

...§ 713.01(6), Fla. Stat. (1987). Appellant contends that the 90 day period did not begin until the last day of the availibility for use of the equipment on the job. Appellant argues persuasively that to interpret the "complete delivery" language of section 255.05(2) otherwise regarding rental equipment would result in an anomalous situation in which in some instances materialmen furnishing rental equipment would not only have to send notices of nonpayment before they knew if their equipment had...

...e day it was last available for use on that job, we can conceive of no way validly to rationalize that its delivery was later than the time it was delivered, i.e., was placed at the job site. We must agree with appellee that the foregoing portion of section 255.05(2) is clear and unambiguous and requires the result reached by the trial court....

...We affirm. In July 1985, Fitzgerald entered into a contract with the Panama City Housing Authority, in which Fitzgerald agreed to perform renovation work on a city housing project. Fitzgerald furnished a labor and material payment bond, pursuant to section 255.05, Florida Statutes (1985), with USF & *790 G as surety....

...a subcontractor for Michael Tagarelli, d/b/a Michaels Building Corporation of Tarpon Springs, Inc., on a government contract with the Department of Transportation. ABC is the surety on a contract bond issued in compliance with the little Miller Act. § 255.05, Fla....

...(Everett Painting), entered into a written Subcontract Agreement with Padula & Wadsworth Construction, Inc. (Contractor), to perform painting services on a project identified as "Driftwood Middle School." The project constituted a public project pursuant to section 255.05, Florida Statutes (1997), and under the terms of the statute, Contractor was required to secure both a payment and performance bond on the project....

...Therefore, we do not know if Surety included the necessary language under 713.245 in order to create a conditional payment bond. However, even if it did contain the language in section 713.245, Surety did not have the ability to create a conditional payment bond because the bond in the instant case was issued pursuant to section 255.05 and there are no provisions in section 255.05 similar to those in section 713.245. The purpose of section 255.05 is to protect subcontractors and suppliers by providing them with an alternative remedy to mechanic's liens on public projects....

...l judgment in favor of a sub-subcontractor, Randy Joyce, d/b/a Backhoe of Florida, on the sub-subcontractor's action to recover on a payment and performance bond. The sole issue is whether Backhoe complied with the forty-five-day notice provision of section 255.05(2), Florida Statutes (1981), [1] a prerequisite to recovery against *547 the general contractor and the surety. We hold that Backhoe complied with the notice provision and therefore affirm. Blosam entered into an agreement with the Winter Haven Housing Authority to construct certain public housing projects. In accordance with section 255.05(1), Blosam obtained a payment and performance bond with a surety insurer....

...ccount. At trial, Blosam admitted that it received actual notice of Backhoe's intention to look to the bond for protection. Based on these facts, the trial court determined that Backhoe complied with the first or forty-five-day notice requirement of section 255.05(2)....

...Specifically, Blosam asserts that the notice failed to strictly comply with the notice provisions of the Mechanics' Lien Law, section 713.01, et seq., Florida Statutes (1981), because the mailing was not addressed to an officer, director, managing agent, or business agent of Blosam. [3] The chief purpose of section 255.05(1) is to protect subcontractors and suppliers on public construction projects by providing them with an alternate remedy to the mechanics' lien available on private construction projects. City of Fort Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1964). Section 255.05(2) protects the contractor and the contractor's surety from having to account to unknown subcontractors and suppliers....

...Fasano, Inc., 417 So.2d 1063 (Fla. 4th DCA 1982). One of the keys to protecting the contractor and the surety is the requirement of prompt notice of a claimant's intention to rely on the bond for protection. Without specifying the manner in which service must be accomplished, section 255.05(2) requires the claimant to "furnish the contractor" with such notice within forty-five days after beginning to furnish labor, *548 materials, or supplies for the prosecution of the work. In order to resolve ambiguities in section 255.05, the courts have looked to the Mechanics' Lien Law and the Miller Act, 40 U.S.C. § 270a et seq., for guidance. See Miller v. Knob Construction Co., 368 So.2d 891 (Fla. 2d DCA), cert. denied, 378 So.2d 346 (Fla. 1979). However, reliance on the Mechanics' Lien Law and/or the Miller Act as interpretive aids of section 255.05 is not always necessary nor is it mandated by the statute. See generally Winchester v. Florida Electric Supply, Inc., 161 So.2d 668 (Fla. 2d DCA 1964). Whether the notice provisions of section 255.05(2) have been satisfied must be decided on a case-by-case basis with the purpose of the notice requirement borne in mind. On the facts before us, it is unnecessary to rely on other legislative enactments to determine whether Backhoe furnished the contractor with the forty-five-day notice mandated by section 255.05(2) in a timely fashion....

...The purpose of the forty-five-day notice requirement, i.e., providing the contractor with notice of potential claimants on the bond, was satisfied. Accordingly, we hold that the notice furnished to Blosam by Backhoe complied with the notice requirements of section 255.05(2). Even if we agreed with appellants, which we do not, that section 713.18(1) provides the exclusive means for service of the notices required in section 255.05(2), we would nevertheless affirm on the ground that the mailing, which was addressed to the corporation rather than to an officer, director, managing agent, or business agent, substantially complied with the requirements of section 713.18(1)(c) under the facts of this case....

...1974), relied upon by appellants, is distinguishable because in that case there was no allegation that any responsible official of the corporation ever received the notice. Bowen v. Merlo, supra . AFFIRMED. DANAHY and LEHAN, JJ., concur. NOTES [1] Section 255.05(2), Florida Statutes (1981), provides: A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish labo...

...No action shall be instituted against the contractor or the surety on the bond after 1 year from the performance of the labor or completion of delivery of the materials or supplies. [2] It is undisputed that Backhoe complied with the second or ninety-day notice requirement of section 255.05(2)....

..."(b) After the expiration of one (1) year following the date on which Principal ceased work on said Contract." * * * * * * The plaintiffs did not allege or claim compliance with these provisions of the bond, but took the position that the ninety day provision was repugnant to Section 255.05, Florida Statutes, F.S.A., as written before its amendment in 1959....

...Judgment was entered, as to liability, for the plaintiffs. The Court held, inter alia: "3. That the limitation provision contained in Paragraph (3)(a) and (b) of said bond are not applicable to the plaintiff herein and are mere surplusage in view of the applicable provisions of Florida Statute 255.05, as said Statute read on the 10 day of April, 1962....

...The cause proceeded to trial on damages and final judgment was thereupon entered. This appeal was thereafter timely perfected. The plaintiffs urge there was ample evidence before the court establishing that the bond was, in fact, posted pursuant to Section 255.05 Florida Statutes, F.S.A., in that the contract for construction was with Southeastern Palm Beach County Hospital District, a political subdivision of the State of Florida, and that Section 255.05 requires such a penal bond to be posted by: "(1) Any person entering into a formal contract with the state, any county of said state, or any city in said state, or any political subdivision thereof, or other public authority, for the c...

...e purpose of fulfilling the statutory bond conditions designed to protect laborers and materialmen in cases of public improvement, the surety company will be liable as provided by statute." Prior to 1959, there were no notice provisions contained in Section 255.05. In 1959, the Florida Legislature amended Section 255.05 by adding a paragraph with a similar notice provision, and a one year limitation for bringing suit similar to the one contained in the bond....

...The Supreme Court held that the 1959 amendatory act failed to re-enact or publish at length the section of the Statute which was being amended and therefore the provision of the amendment was unconstitutional. As indicated, plaintiff's cause of action arose in 1962 at a time when the second paragraph of Section 255.05 was unconstitutional, due to a procedural defect in the passage of the act, rather than a substantive defect....

...t in any way, provided notice was given that performance was completed. Provisions requiring that notice be given are not against public policy as we have similar provisions in the Mechanics' Lien Law, Section 84.061(2), Florida Statute, F.S.A., and Section 255.05 today requires that notice be given within an identical period....

...w. We find error and reverse The Board of Public Instruction of Sarasota County contracted with defendant Indcon Engineers and Contractors, Inc. for the construction of an elementary school. Defendant Indcon executed the usual penal bond required by § 255.05, Fla.Stats., F.S.A....

...Use plaintiff subsequently brought suit against defendants on the performance bond. The trial court entered a summary final judgment in defendants' favor apparently on the ground that use plaintiff had failed to notify defendant Indcon of the non-payment within ninety days as provided by § 255.05, Fla.Stats., F.S.A....

...lete delivery of materials or received within that period; and (2) is the last date of performance the date the materials are shipped to the subcontractor f.o.b. point of origin or the date the materials are delivered to the job site? The portion of § 255.05, Fla.Stats., F.S.A., in controversy reads in pertinent part: "Any person supplying labor, material or supplies used directly or indirectly in the prosecution of the work to any subcontractor and who has not received payment therefor, shall,...

...may be instituted or prosecuted against the contractor unless such notice has been given. * * *" There do not appear to be any reported Florida decisions dealing with the questions presented, and we consider the matter one of first impression under § 255.05....

...As to the first question, that of the mailing of the notice of non-payment, basic contract principles provide a helpful analogy. There was no direct contractual relationship between plaintiff and defendants, but the Legislature has provided the "contract" between the parties and, in effect, § 255.05 amounts to the general contractor's "offer" to plaintiff materialman....

...App.2d 365, 186 P.2d 463 (1947) and Pheffer v. Kleb, 241 S.W.2d 91 (Mo. App. 1951). It is our view that when the written notice of non-payment is properly placed in the mail, addressed to the contractor with postage prepaid, such notice is "delivered" within the meaning of § 255.05, Fla.Stats., F.S.A. Of interest is the recent decision in United States for the Use and Benefit of Crowe v. Continental Casualty Co., 245 F. Supp. 871 (D.C.La. 1965), holding that the 90-day notice requirement of the Miller Act, 40 U.S.C.A. § 270b(a), after which § 255.05 is patterned, is satisfied when a notice letter is registered and mailed on or before the ninetieth day....

...Plaintiff contends that the statute contemplates these goods actually being delivered to the job site before the ninety-day period begins to run. We are inclined to agree with plaintiff's view. In order for a materialman to recover for supplies furnished under § 255.05, he must prove that those supplies were actually delivered to the job site....

...period would begin to run on the last date of delivery of the materials to the construction site. Our reversal of the trial court's judgment cannot, however, rest upon either of our answers to the questions presented by the parties. The paragraph of § 255.05, Fla.Stats., F.S.A. quoted above was added by the Legislature in 1959. Ch. 59-491, Laws of Florida, 1959. It was declared unconstitutional by the Supreme Court of Florida in 1963 because of the Legislature's failure to re-enact § 255.05 and publish it at length as required by Article III, Sec....

...G. Warren Sanchez, Tallahassee, for appellees. DREW, Justice. The Suwannee County Board of Public Instruction entered into a contract to construct an elementary school building but did not demand or receive from the contractor the bond required by section 255.05, Florida Statutes, 1951, F.S.A....

..., Maryland (sureties on the official bonds of all the Board members), and George A. Hicks, Board Chairman, to recover the loss on the theory that it was the ministerial duty of the school board members under the law to require the bond prescribed by section 255.05, Florida Statutes, 1951, F.S.A., referred to above, and that their failure to do so was a violation of their duty to "faithfully perform the duties of his said office" and thereby made the individual members of the school board and their bondsmen liable to it for the loss sustained....

...ulations of the county board or of the state board relating to the type of contract involved; provided, that it shall be the duty of the county board to require from every contractor a bond adequate to protect the school and school funds involved." "255.05 Bond of contractor constructing public buildings; suit by materialmen, etc....

...sitively imposed by law, and its performance required at a time and in a manner, or upon conditions which are specifically designated; the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion." Section 255.05, Florida Statutes, 1951, F.S.A., has been on the statute books for many years....

...This section is extremely broad in its scope. It concerns itself with all public buildings and we find nothing in the School Code to even infer that it was not intended to apply to school buildings. On the contrary, section 237.31(4) can, and should, be construed to make this section, 255.05, a part thereof because, in section 237.31(4) it is expressly provided that the contractor shall provide bond "in such amount and for such purposes as [ shall be ] prescribed by law * * *." (Emphasis supplied.) Nor is the language in section 235.32, supra, in conflict with section 255.05 in any respect. It is supplementary only and adds a requirement that the bond shall be for 100% of the contract price. It is urged upon us by defendants below that the statute, 255.05, supra, does not place a ministerial duty on the board to require the bond; they say: "* * *; it does not say that the board of public instruction shall require a person entering into a contract to execute a particular type bond....

...conditions for their operation have been specifically outlined. The board of public instruction has fully complied with all requirements of the School Code in the State of Florida and no liability can now be imposed upon them for not conforming with Section 255.05 of the Florida Statutes....

...entences of the section making it the duty of the public body to furnish a copy of such bond to interested persons. It is therefore our conclusion that it was the mandatory duty of the school board members to see to it that the bond required by said section 255.05 was posted before work was commenced; that the duty to do so was ministerial; that the failure to do so was a breach of the duty to faithfully perform the duties of the office and that persons suffering loss because thereof had a remedy against such board members individually in tort....

...Petersburg, for appellee Knob Construction Co. GRIMES, Chief Judge. This is an appeal from a final summary judgment which held that appellant's claim for $3,875 under an alleged contract with appellee was barred by the one-year statute of limitations in Section 255.05, Florida Statutes (1975)....

...red. A summary judgment exonerated American from liability to Miller, and this judgment was not appealed. Later, the court entered summary judgment in favor of Knob because Miller's suit was filed more than one year after the completion of the work. Section 255.05(1) provides that any person entering into a contract with a public body for the construction of public projects is required to execute a performance and payment bond with an authorized surety conditioned on the contractor's proper performance of the contract and prompt payment to all persons supplying him labor, materials or supplies used directly or indirectly by him for the prosecution of the work provided for in the contract. Section 255.05(2) includes a limitation provision which reads: No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after 1 year from the performance of the labor or completion of delivery of the materials and supplies....

...or" and "against the surety" necessarily makes the term "on the bond required in this section" modify only "surety." We doubt if the language quoted above is so clear as to make it unnecessary to consider the legislative intent behind the passage of Section 255.05....

...any other remedy which a subcontractor might have against the prime contractor. Section 713.30, Florida Statutes (1975). No reason comes to mind why the character of the project — government ownership — should make any difference in this respect. Section 255.05 was designed to assist subcontractors and materialmen who lack privity with the prime contractor or the owner and who cannot obtain a lien because of the public nature of the project. We do not believe that by including a one-year limitation provision within the body of Section 255.05, the legislature intended to lessen the protection already available to subcontractors and materialmen who enjoy privity of contract with the prime contractor. Section 255.05 was patterned after the federal statute known as the Miller Act....

...pecial benefit to contractors at the expense of their subcontractors and materialmen. In Southwest Florida Water Management District v. Miller Construction Co., 355 So.2d 1258 (Fla.2d DCA 1978), this court held that the one-year limitation period in Section 255.05 did not apply to a suit on a performance bond given by the prime contractor on a public work project....

...Thus, we hold that the one-year limitation in subsection (2) applies only to a plaintiff asserting a claim on the bond required by subsection (1). Because Miller's complaint is grounded entirely upon the allegation of a contract between himself and Knob and does not allege any claim under Section 255.05, the general statute of limitations pertaining to suits on contracts applies. The summary judgment in favor of Knob is reversed, and the case is remanded for further proceedings. SCHEB and RYDER, JJ., concur. NOTES [1] This section has been modified effective January 1, 1978. See Ch. 77-81, Laws of Florida. Section 255.05, Florida Statutes (1977), reflects the change. [2] We shall assume for the sake of argument that Miller's corrective work would have been public construction work within the scope of Section 255.05 for which Miller could have sued Knob's surety company had he properly complied with all of the requirements of statute.

...On August 3, 1999, the School Board entered into a written contract with Rockland Construction Company to construct an athletic field and sports complex at a high school for the price of $1,455,800.00. Pursuant to the contract, and in accordance with section 255.05(1)(a), Florida Statutes (1999), Great American Insurance *751 Company issued a performance bond for the project....

...Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). The Civil Rights Attorney's Fees Awards Act of 1976 (42 U.S.C. § 1988) authorized the federal district courts to award a reasonable attorney's fee to the prevailing party in civil rights litigation. [4] We also have considered section 255.05, Florida Statutes (Supp....

...*479 Howell, Kirby, Montgomery & Sands, Jacksonville, for appellant. Hazard & Thames, Jacksonville, for appellees. STURGIS, Judge. The appellant, Phoenix Indemnity Company, hereinafter sometimes referred to as the "surety," was surety on a performance and guaranty bond given under Section 255.05, Florida Statutes, F.S.A....

...or who, under the terms of the contract, was obligated to provide such insurance and furnish the bond before commencing work under the contract. By appropriate reference the contract was made a part of the bond. It is provided by Sections 235.32 and 255.05, Florida Statutes, F.S.A., that a bond be given for performance of formal public works contracts....

...al contract price, (3) to furnish a bond for 100% performance of the contract at the price stated therein, and (4) for payment of all persons supplying labor, material and supplies used directly or indirectly by the contractor or subcontractor (F.S. § 255.05, F.S.A.)....

...that since insurance premiums are not "materials" or "labor" or "supplies" within the purview of the Mechanics' Lien Law, they are not covered by the bond. Appellee contends: (1) That assuming, per argumenti, the primary purpose of the statute (F.S. § 255.05, F.S.A.) is to fill the void resulting from the inapplicability of the Mechanics' Lien Law to public works, it does not limit the coverage contractable under a bond, that even the statutory bond extends coverage beyond the protection afford...

...he theory that the insured contracted to perform a part of the contractor's obligation — furnishing of the insurance — and thereby became a subcontractor within the meaning of the contract, as well as within the meaning of the Mechanics' Lien Law. Section 255.05, Florida Statutes, F.S.A., does require coverage under the bond beyond the protection afforded by the lien arising under the Mechanics' Lien Law....

...materialmen, and laborers as deal directly with the prime contractors, thus failing to provide protection for those furnishing materials and labor to the subcontractors. Richard Store Company v. Florida Bridge & Iron, Inc., Fla., 77 So.2d 632. Under Section 255.05, however, the coverage of the bond for public works contracts includes "labor, material and supplies, used directly or indirectly by said contractor, or subcontractors * * *," and it is immaterial whether the materials furnished are supplied directly or indirectly to the contractor or subcontractor....

...And as the bond in suit is conditioned to pay bills for "services" and to complete all "work comprehended by the contract free and clear of all liens for labor or materials, or otherwise," we are persuaded that it contemplates performances and a guaranty beyond those specifically required by F.S. Section 255.05, F.S.A....

...therein, the trial court correctly held that the premiums payable for insurance furnished to the contractor are included in the coverage of the bond. Affirmed. WIGGINTON, C.J., and CARROLL, DONALD K., J., concur. NOTES [1] The pertinent part of F.S. § 255.05, F.S.A., provides: "Any person entering into a formal contract with * * * [any] public authority, for the construction of any public building * * * shall be required, before commencing such work, to execute the usual penal bond, with good a...

...Paul) for failure to join an indispensable party, Interstate Mechanical Corp. (Interstate). The City of Boca Raton entered into a contract with Maio, as general contractor, to perform all work on a public construction project. Maio and St. Paul, the surety, furnished a payment and performance bond pursuant to section 255.05, Florida Statutes (1981)....

...actor was making a duplicate claim based on the same project. The trial court held that the subcontractor was an indispensable party to the materialman's claim against the construction payment bond and dismissed Gorman's action. The major purpose of section 255.05(1), Florida Statutes (1981), governing payment bonds on public construction projects, is to protect subcontractors and suppliers by providing them with an alternative remedy to the mechanics lien....

...It has also been held that a general contractor is not an indispensable party to an action by a subcontractor against an owner under the same statutory scheme. Bybee v. Stearn, 95 So.2d 529 (Fla. 1957). Petitioner contends that the same rule should apply to its action under section 255.05....

...roject. Respondents also contend that a different result is mandated because of the difference in statutory language. Section 713.23(1)(g) states: Any lienor shall have a direct right of action on the bond against the surety. (Emphasis added), while section 255.05(1) states: The claimant shall have a right of action against the contractor and surety for the amount due him. We do not believe the difference in language affects the issue before us. Section 255.05 appears to have been patterned after the Miller Act, 40 U.S.C....

...v. Harders, Inc., 387 F.2d 727 (5th Cir.1967). Under 40 U.S.C. § 270b(a), such parties "shall have the right to sue on such payment bond... ." It is clear that this right is a direct one, although the language of the statute, like the language of section 255.05(1), does not say so precisely. Similarly, we believe the right under section 255.05(1) is a one of direct action against the contractor and surety without joinder of the subcontractor....

...Davis, P.A., Leesburg, for appellees. *397 RYDER, Judge. Appellant, William H. Gulsby, seeks a money judgment of $10,317.14 against appellees/defendants Miller Construction Company, Inc., of Leesburg and the American Insurance Company pursuant to bond provisions in Section 255.05, Florida Statutes (1975)....

...appellant Gulsby by its subcontractors. Appellees filed a motion to dismiss, raising the issue of appellant's remoteness as a sub-sub-sub-subcontractor in connection with the construction project and asserting that the Florida courts have construed Section 255.05 to provide protection only to claimants furnishing materials or labor to the contractor or his subcontractor and have refused to extend the protection to others more remote....

...d anyone not in privity with the owner performing a portion of a contract to enhance realty and extended coverage to sub-sub-sub-subcontractors. The Florida Supreme Court wrote in Fulghum v. State, 92 Fla. 622, 109 So. 644 (1926) that the passage of Section 255.05 by the Florida legislature was for the broad general purpose of affording to those supplying labor and materials on public works projects a means of protection in lieu of the lien afforded to them on private work as provided by the statutes. Thus, there may very well now exist a lack of parity in coverage and protection in the law between the mechanics' lien law encompassed in Chapter 713, relating to private work projects, and Section 255.05, Florida Statutes, relating to the bonds of contractors constructing public buildings. This might become a concern of future legislation but the same legislature which amended Chapter 713 has not amended Section 255.05. Thus we reaffirm our decisions in City of Fort Lauderdale, supra, and North Broward Hospital District, supra, and say it is for the legislature rather than the courts to extend the bond coverage required beyond the limits stated in Section 255.05, Florida Statutes....

...It was alleged in the complaint that said materials were "used in the prosecution of the work provided for in said general contract *427 and were incorporated in the North Liberty City Elementary School." The action was brought in the Circuit Court of Dade County pursuant to § 255.05, Florida Statutes, F.S.A., prior to the 1959 amendment....

...City of Jacksonville, 97 Fla. 297, 120 So. 556, as contemplated by Section 4, Article V, Florida Constitution, F.S.A., and Rule 4.5, subd. c of the Florida Appellate Rules, 31 F.S.A.? 2. When a materialman sues a general contractor and the surety on his bond as provided by § 255.05, Florida Statutes, F.S.A., for the unpaid purchase price of materials furnished and delivered to the job site of a public works project, as a prerequisite to recovery, is he required to prove that such materials were actually used in the construction of the project? Petitioners contend that the applicable statute, § 255.05, Florida Statutes, F.S.A., and our decision in the Kidd case, supra, require proof that the materials so furnished were not only delivered to the job site, but that if any controversy arises as to their use, he [materialman] must prove that they were actually used in construction of the project. The respondent materialman contends on the other hand that proof of delivery of the materials to the job site for a public works project is sufficient compliance with § 255.05, Florida Statutes, F.S.A., to warrant recovery for any unpaid purchase price due on such materials....

...t was entered into between a contractor and a public authority (the Board of Public Instruction of Dade County, Florida, and the City of Jacksonville); in each case the contractor executed a penal bond with the additional obligations as specified in § 255.05, Florida Statutes, F.S.A., and its predecessor; in each case a suit was brought by a materialman against the contractor and his surety for the unpaid purchase price of supplies furnished by such materialman; in each case the complaint alleg...

...materialman, whereas in the Kidd case privity of contract did exist between the general contractor and the materialman. This factual dissimilarity is immaterial, however, because privity of contract is not a necessary element in a suit predicated on § 255.05, Florida Statutes, F.S.A....

...olved is without merit. The "point of law" involved in the instant case and in the Kidd case is whether or not a materialman, as a prerequisite to recovery for the unpaid purchase price of supplies furnished a public works project in a suit based on § 255.05, Florida Statutes, F.S.A., is required to prove that such supplies were actually used in the prosecution of the work contracted for....

...The Kidd case answered this question in the affirmative. The circuit court followed the Kidd case but the district court of appeal reversed, hence the conflict. Now let us consider the merits of the case. In the Kidd case this court discussed at length the federal act from which § 255.05, Florida Statutes, F.S.A., was drawn, the various amendments appertaining thereto, and the federal decisions interpreting the federal act as amended....

...roject were used in the prosecution of the work, i.e., formed an integral part of the work, and were necessarily involved in the work as a prerequisite to recovery for the unpaid purchase price of such material or supplies in an action brought under § 255.05, Florida Statutes, F.S.A. The decision of the district court of appeal relied on in the case at bar appears to hold that the effect of § 255.05, Florida Statutes, F.S.A., is, "* * * `to afford to those supplying labor and materials on public works projects a means of protection in lieu of the lien afforded them on the *429 private work as provided by other statutes.' The legislature having by statute (§ 255.05) eliminated the laborer's and materialman's security for payment of their work and/or materials and transferred such security to a bond, it would not, in our opinion, follow that the legislature, absent express sanction, intended that such...

...The general contractor will then be required to prove that such material or supplies were not used in the prosecution of the work contracted for to defeat recovery for the unpaid purchase price of such material or supplies in an action brought under § 255.05, Florida Statutes, F.S.A....

...ating them to compensate M & MA Corporation d/b/a McCain Building Supply (McCain) for materials supplied to a public works construction project. The question presented is whether McCain is entitled to recovery against the contractor and surety under section 255.05, Florida Statutes (1983), the Little Miller Act. Section 255.05(1) provides subcontractors and suppliers not in privity with the general contractor with a cause of action against the contractor and its bond for materials and labor provided on construction projects involving publicly held property. [1] Recovery under the statute is conditioned upon compliance with the following notice provisions of section 255.05(2): *1390 (2) A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish labor, materials, or supplies...

...the materials or supplies. On August 26, 1980, Pinellas County entered into a contract with Mills for the construction of the Pinellas County Criminal Court's building. Mills delivered to the county a performance and payment bond in compliance with section 255.05(1), Florida Statutes (1983)....

...the statutory notice requirement within the prescribed time limit. *1391 School Board of Palm Beach County v. Fasano, Inc., 417 So.2d 1063 (Fla. 4th DCA 1982); Fuller Industries, Inc. v. R. Terry Balzier & Son, Inc., 188 So.2d 2 (Fla. 2d DCA 1966); § 255.05(2), Fla....

...As stated by the Fourth District in School Board of Palm Beach County v. Fasano, Inc ., our objective is to "determine the intent of the legislature and, if possible, to see that the purpose of the statute is accomplished." 417 So.2d at 1065. With respect to the legislative purpose behind section 255.05, the court stated: Clearly, the major purpose of Section 255.05(1) is to protect subcontractors and suppliers by providing them with an alternative remedy to a mechanics lien on public projects. City of Ft. Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1969). In addition, however, Section 255.05(2) protects the contractor and the contractor's surety from having to account to unknown suppliers and subcontractors by putting the burden on the claimants to advise the contractor and surety of their participation on the project and to advise if they are not promptly paid....

...On March 14, 1980, the supplier submitted a request for payment which was refused. The supplier then filed suit against the contractor and surety. The trial court dismissed the supplier's claim on the basis that it had failed to comply with the notice provisions of section 255.05(2)....

...The notice of intent to claim a lien is a notification that pursuant to the statute the subcontractor is looking to the owner for payment. We think the reasoning of Bishop is applicable in the instant case. Although section 713.06 required a written and more detailed notice than section 255.05, the intent of the statutes appears the same — that an owner or contractor know of a claim for payment. Thus, we read the notice of section 255.05(2) as requiring something more than an awareness that a particular subcontractor or supplier is on the job....

...To hold otherwise would render the statute a nullity for general contractors often know that a company is furnishing materials to a project without knowing that they have not been paid. In sum, because McCain did not notice Mills in accordance with the legislative intent it cannot recover under section 255.05. Accordingly, we reverse the final judgment and remand for proceedings consistent herewith. GRIMES, A.C.J., and CAMPBELL, J., concur. NOTES [1] The right of action allowed by section 255.05(1) is the legislative alternative to a mechanics lien, which cannot be secured against government owned land. § 713.01(14), Fla. Stat. (1983). Section 255.05(1) provides: (1) Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of a public building, for the prosecution and completion...

...Myers, for appellants. Allen, Knudsen, Swartz, Richardson & DeBoest, Ft. Myers, for appellee United Bonding Ins. Co. MAXWELL, OLIVER C., Associate Judge. This is an appeal from an order dismissing with prejudice a complaint against a surety on a bond issued under F.S. Section 255.05, F.S.A., brought by a materialman of a sub-contractor....

...claimant is entitled to recover on common law liability on the bond. We will consider these points in reverse order. With respect to the claim of common law contract obligation, the complaint shows it is being brought by virtue of the terms of F.S. Section 255.05, F.S.A....

...Under the circumstances there could be no common law contract liability. The next question is whether or not the notice to the contractor, required by the statute, may be waived. Certain decisions construing the Miller Act (Title 40 U.S.C.A. § 270a et seq.) on which F.S. Section 255.05, F.S.A....

...See City of Miami Beach v. Fidelity & Deposit Co. of Maryland, 425 So.2d 648 (Fla. 3d DCA 1983); Florida Board of Regents v. Fidelity & Deposit Co. of Maryland, 416 So.2d 30 (Fla. 5th DCA 1982). Under the natural meaning of "performance of the labor" in section 255.05(2), Florida Statutes (1973), a certificate of substantial completion and the acceptance of a constructed building by the owner begins the one-year statute of limitations period provided by section 255.05(2) for actions against the surety on the bond....

...The Board of Public Instruction of Broward County was the plaintiff and now prosecutes this appeal for the use and benefit of Monmouth Plumbing Supply Company, Inc., which was a materialman under a public works contract. The defendants were the prime contractor, his subcontractors and their sureties pursuant to § 255.05, Fla. Stat., F.S.A. [1] and the litigation below resulted in the entry of a summary final judgment adverse to appellant. The principal question involved is whether the protection of a payment bond pursuant to § 255.05, supra, extends to a person who furnishes or contracts to furnish labor and materials to a sub -subcontractor....

...Shortly thereafter, Patterson was adjudicated bankrupt and the appellee Cameron was duly appointed trustee thereof. On February 11, 1963, appellants instituted suit against Cameron, as trustee, Rood as prime contractor, and the subcontractors and their sureties pursuant to § 255.05, supra, seeking to recover the sum of $15,799.75, representing purchases and deliveries by Monmouth during the above-mentioned period....

...mouth was a supplier or materialman to Patterson. As indicated above, we must here decide whether Monmouth, the unpaid materialman or supplier to Patterson, the sub -subcontractor, is entitled to recover from the prime contractor or its surety under § 255.05, supra....

...Such would have to have been the case for him to occupy the status of a subcontractor as that word is ordinarily defined. Thus, plaintiff is relegated to the position of materialman of a materialman which is excluded from the protection afforded by § 255.05, F.S.A., by the plain meaning of the language used therein....

...If the result were otherwise contractors purchasing supplies and materials incorporated in state construction projects would be subject to an endless chain of liability." The Troup case can be cited for the proposition that a materialman of a materialman is excluded from the protection afforded by *704 § 255.05, supra....

...The Board of County Commissioners of Polk County (Polk) appeals the trial court's granting of The Aetna Casualty and Surety Company's (Aetna) motion to dismiss count IV of Polk's counterclaim. [1] Aetna's motion alleged a statute of limitations defense based on a bond provision that limited liability to one year according to section 255.05(2), Florida Statutes (1983)....

...f the contract. The contract provides a substantial completion date of seven hundred and fifty days from the date of the contract, June 26, 1984. Thus, under the contract, in the late summer of 1986, the one-year statute of limitations began to run. § 255.05(2), Fla....

...on with the project. The bond, which guaranteed obligations totalling $237,320.80, provided in pertinent part: NOW, THEREFORE, The condition of this obligation is such that if the above-bounden Principal [American] in all respects shall, comply with Section 255.05 and 337.13, Florida Statutes, and the terms and conditions of said Contract, and his obligations thereunder, including the proposal, project specifications, and plans for State Project, Job....

...se, to be and remain in full force and virtue in law. Martin brought an action based on the bond against United in August 1993 to recover $18,719.22 it was allegedly owed under its agreement with D & M. Martin's one-count complaint did not reference section 255.05; rather, it alleged that the bond was a common law surety bond which had been breached by United. United's answer alleged that the bond was a statutory public construction bond and that Martin was precluded from recovering under the bond because it had failed to comply with the notice provisions of section 255.05(2). United also moved for summary judgment on this same basis. In the course of the litigation, Martin established by affidavit that it had hired an agent, Construction Advocates, to handle compliance with the requirements of 255.05....

...that existed on the paving project. [1] DOT never responded. DOT was then contacted by telephone but represented that there was no bond on the project. Martin also searched the public records of Volusia County but no copy of the bond had been filed. Section 255.05(1), Florida Statutes, requires such filing of the bond if one exists on a project of this size. Martin did not learn that there was a bond until March 1993. Martin then immediately sent a notice of nonpayment to United, requesting payment on the bond. Both below and on appeal, United principally contends that the 1980 amendment to section 255.05, which added subsection (4) [2] to the current statute, eliminated common law bonds, thus, as a matter of law, Martin's *270 claim, which asserts a right to recover on a "common law" bond, cannot succeed. Secondarily, United contends that Martin is bound to comply with the notice requirements of subsection (2), even if DOT fails in its statutory obligation under section 255.05(1) to supply a certified copy of the bond on request, even if the principal fails in its statutory obligation under section 255.05(1) to record the bond, and even if the surety fails in its statutory obligation under section 255.05(1) to include essential information on the face of the bond, including the name and address of both the principal and the surety, and a description of the project. [3] We begin by rejecting United's principal contention that enactment of subsection (4) of 255.05 made a "dinosaur" of the concept of a common law bond and that, in light of the enactment of subsection (4), all "bonds obtained for public works projects" are statutory bonds regardless of form....

...a common law bond on a public project [4] since the enactment of subparagraph (4). As to the latter assertion, we can draw no such inference. To the contrary, it may well be that the 1980 amendments (specially when augmented by the 1988 amendment to 255.05) [5] have largely eliminated the need for the common law bond argument. See United Bonding Ins. Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971). Subparagraph (4) of section 255.05 is more narrow than United's reading of it. It does clearly communicate that, regardless of the form of the bond, the underlying payment provisions of all bonds furnished for public works projects described in subsection (1) of 255.05 will be construed and deemed statutory bond provisions....

...The bond in this case is a "common law bond." Such a bond still may be subject to the notice and statute of limitations applicable to a statutory bond, however, because the statute provides that the payment provisions of any bond "furnished for public works contracts described in subsection (1)" of 255.05 (whether a "statutory" bond, due to the limited scope of its coverage, or a common law bond, due to broader coverage) is subject to the notice requirements and the time limitations in subparagraph (2). Evidently, at one point the 1980 Florida legislature had considered the idea of making the form contained in subsection (3) of 255.05 a mandatory form to be used in all public works projects....

...on Government Operations, SB 33, Staff Analysis (January 1980). The response of the legislature was to add subsection (4), imposing subsection (2) limitations on all bonds. Concomitantly, the surety was required by subsection (6), to assure that the bond expressly referred to section 255.05 and contain a notice that claims were subject to the 255.05(2) deadlines....

...ted and that it contain certain information making it easier to identify the principal, the surety and the project. Inexplicably, however, when the legislature added these requirements, it failed to amend its own sample of the bond form contained in 255.05(3). Thus, the bond form authorized in subparagraph (3) of 255.05 violates the express requirements of subsection (1) and (6). Appellee urges that it cannot be faulted for issuing a bond that does not comply with 255.05(1) and (6) because it used the form DOT requires. A clue to the reason for the failure of the DOT bond to conform to the 1980 and 1988 amendments to 255.05 may be found in the fact that DOT's bond expressly covers the principal's compliance with section 337.13, Florida Statutes — a statute repealed in 1976....

...Nevertheless, the form DOT chooses to use and the procedures DOT chooses to follow are not controlling on the question of United's and Martin's rights and obligations under Florida statutes. Even if DOT were to refuse to accept a bond written in compliance with section 255.05, the surety has the option of refusing to write a nonconforming bond. The statutory scheme that has developed through these various amendments to section 255.05 requires the bond to be properly recorded and to contain the information identified in subsection (1)....

...m by avoiding detection. Cf. Suchman v. National Hauling, Inc., 549 So.2d 200 (Fla. 3d DCA 1989). The amended statutory procedure is simple enough for the surety and principal to follow in order to insure the coveted protections of subsection (2) of 255.05....

...suant to this section shall make reference to this section number and shall contain reference to the notice and time limitation provisions of this section. [3] The bond also lacked the required express reference to the notice and time limitations of 255.05(2). Section 255.05(6), Fla....

...c project but because the contestants were a subcontractor and a sub-subcontractor, it is impossible to tell from the way the opinion is drafted. Footnote 1 is suggestive, however. [5] Chapter 88-397, Laws of Fla., amended subsection (1) as follows: 255.05 Bond of contractor constructing public buildings; form; action by materialmen....

...Failure to pay for the materials prompted the use-plaintiff to bring suit 2 July 1962 which was, in short, one by a materialman to collect for the materials furnished to a contractor doing work for the State Road Department. In defense it was asserted that the statute of limitations provided in Section 255.05, Florida Statutes, 1961, F.S.A., defeated recovery while the counterattack was that this statute was inapplicable since Section 337.18 requiring a bond of contractors of the State Road Department specified no time within which suit must be brought in event of default by the contractor-principal in the bond. It was stipulated that if Section 255.05 was applicable, the action was barred; if Section 337.18 applied, plaintiff was not precluded from recovery. The circuit judge accepted the latter view and entered summary judgment for the plaintiff. The appellate court held that Section 255.05 was applicable, if valid, and then proceeded to decide that the section was invalid despite the general revision of the statutes in 1961, and notwithstanding the stipulation, which the court did not consider binding since it dealt purely with a matter of law....

...*616 Owners Insurance Company v. Hillsborough County Aviation Authority, 153 So.2d 722 (Fla. 1963). The District Court of Appeal concluded that the trial court's reasoning was erroneous as it advanced to the conclusion that Section 337.18 instead of Section 255.05 governed the case, but that the result was correct inasmuch as Section 255.05 had been declared unconstitutional in the Hillsborough County Aviation Authority case, supra. The problem here is resolved by the decision in the cited case. Section 255.05, or that part of it involved here, with reference to limitation of actions having at relevant times been declared unconstitutional the statute applicable to this litigation was Section 337.18 and, therefore, the claim was not barred. Bearing in mind that the cause of action accrued in 1961 and that suit was brought in July 1962, it is obvious, as we understand the District Court of Appeal held, that Chapter 63-437 amending Section 255.05 by providing a limitation of one year to bring suit on bonds such as the one with which we are dealing having been enacted after the cause of action arose and after suit was begun plainly could not control the instant litigation....

...291, 22 So.2d 804 (1945). We are not disregarding the point, rather gently made by the respondent, that the jurisdiction of this court is somewhat in doubt since the District Court of Appeal did not, in fact, "initially" pass on the constitutionality of Section 255.05, a prerequisite to the vesting of our jurisdiction in a situation of this kind, but merely discovered the decision in the Hillsborough case, in which the constitutionality of the section had already been determined by the Supreme Court....

...(FHM) in relation to employee benefit plans" described in the Third Amended Complaint. Recovery is sought against the five prime contractors on (1) a joint and several liability with the other defendants or (2) a third party beneficiary theory under Section 255.05 of the Florida Statutes....

...ations as to these 16 defendants whose motions to dismiss are hereinafter granted. Plaintiffs in substance allege jurisdiction under Title 28 U.S.C. § 1332, Title 29, U.S.C. §§ 185 and 1132(a)(3) and pendant jurisdiction over related claims under Section 255.05....

...fornia Administrative Corporation v. Majestic Housing, 743 F.2d 1341 (9th Cir.1984). In Gergora v. R.L. Mapp Forming, Inc., 619 F.2d 387 (5th Cir.1980), the Fifth Circuit affirmed a judgment under 29 U.S.C. *646 § 185 and pendent jurisdiction under Section 255.05, against a signatory contractor and a surety for delinquent contributions to an employee fund....

...The letters of credit by the bank defendants were drawn solely in favor of the surety, Balboa. The action against the five contractor-defendants (paragraph 35) are solely pendent in nature, based upon plaintiffs' third-party beneficiary status under Section 255.05 and joint and several liability with the other defendants....

...and delivered by the use plaintiff to the contractor and used in the performance of its road construction contract with the Florida State Road Department. Defendant's answer denied the material allegations of the complaint and affirmatively pleaded Section 255.05(2), Florida Statutes 1961, F.S.A., in bar of the action....

...(2) The use plaintiff completed delivery to Hall Construction Company on June 20, 1961, of all materials referred to in the complaint. (3) There is owing to plaintiff $22,794.60 from Hall Construction Company for said materials. (4) That if the use plaintiff's action is controlled by F.S. § 255.05, F.S.A., then said action is barred and the use plaintiff is not entitled to recover....

...Both parties moved for summary judgment and the court entered summary final judgment for the use plaintiff. The judgment recites, inter alia, "that the use-plaintiff's cause of action is controlled by Section 337.18, Florida Statutes [F.S.A.], and not Section 255.05, Florida Statutes [F.S.A.], and, hence, is not barred." The sole point for determination is whether the use plaintiff was required to bring suit on the bond within one year, else *90 stand barred by the provisions of paragraph (2) of Section 255.05, Florida Statutes 1961, F.S.A. [1] Paragraph (2) of F.S. § 255.05, F.S.A., is adapted from ch. 59-491, Laws of Florida, Acts of 1959, which purported to amend F.S. § 255.05 F.S.A....

...that afforded such persons in the performance of private contracts. The latter, under our Mechanic's Lien Law, have a lien enforceable against the property involved, but no such lien is afforded against public property and the bond required by F.S. § 255.05, F.S.A., with respect to public contracts stands parenthetically in the stead of the statutory lien afforded with respect to private contracts. It is seen that controverted paragraph (2) of F.S. § 255.05, F.S.A., if operative, would place the limitation of time in which to commence an action upon the bond — "one year from the performance of the labor or completion of delivery of the materials and supplies" — on a parity with the limitatio...

...1961), the Second District Court of Appeal, when passing on the question of whether the plaintiff was a materialman of a subcontractor, or a materialman of a materialman, held that the public works construction *91 bond there involved was given under both Sections 255.05 and 337.18, Florida Statutes, F.S.A., and in discussing the problem, said: "In the instant case we are controlled by Chap....

...In a broad sense the chapters are in pari materia and should, to the extent that an understanding of one may aid in the interpretation of the other, be read and considered together.' "In the instant case, the pari materia relationship is much closer for § 255.05, F.S.A., provides for the enforcement of liens in work performed for the sovereign of the same type that Chap. 84, F.S.A., provides for enforcement of against private persons. Since § 255.05, F.S.A., contains no definition of `materialman' we deem controlling the one contained in § 84.01, F.S.A." We find nothing in the first paragraph of F.S. § 255.05, F.S.A., to suggest that the State Road Department is excepted from its operation, and Section 337.18, Florida Statutes, F.S.A., does not conflict therewith or raise any question of repeal or partial repeal thereof by implication. The trial court, in holding "that the use-plaintiff's cause of action is controlled by Section 337.18, Florida Statutes [F.S.A.], and not Section 255.05, Florida Statutes [F.S.A.], and hence, is not barred," adopted an erroneous basis for entering the judgment appealed. However, the trial court's conclusion is proper because ch. 59-491, Laws of Florida, Acts of 1959 (purporting to amend Section 255.05, Florida Statutes, F.S.A., by adding the second paragraph as it appears in Florida Statutes, 1961 and 1963) has been struck down as unconstitutional (Auto Owners Ins....

...Northeast Production Credit Ass'n, 160 So.2d 46 (Fla.App. 1963). We are not unmindful that by paragraphs 4 and 5 of the stipulation filed in the trial court the parties undertook to reduce the issues to the proposition (a) that if the use plaintiff's action was controlled by F.S. § 255.05, F.S.A., it is barred and plaintiff would not be entitled to recover, while (b) if controlled by F.S....

...Co. v. Hillsborough County Aviation Authority, supra, the Florida *92 Supreme Court in an opinion by Thornal J., affirmed a summary judgment that was entered by the trial court consequent upon its holding that ch. 59-491, supra, purporting to amend Section 255.05, Florida Statutes, F.S.A., was unconstitutional because in violation of Article III, Sec....

...ed or section, or subsection of a section, or paragraph of a subsection of a section, as amended, shall be reenacted and published at length." The infirmity of ch. 59-491 was in the failure of the legislature to reenact and publish at length therein Section 255.05....

...Incorporation in a general revision of the statutes would not cure a particular act of any unconstitutionality of content." We have noted the fact that ch. 63-437, Laws of Florida, Acts of 1963, filed in the office of the Secretary of State on June 13, 1963, purports to amend Section 255.05, Florida Statutes, F.S.A., by adding paragraph (2) in the identical language of ch....

...mpany and at the time it commenced this suit there was not in effect a statute of limitations as insisted upon by appellant. Accordingly, the judgment appealed must be and it is Affirmed. WIGGINTON and CARROLL, DONALD K., JJ., concur. NOTES [1] F.S. § 255.05, F.S.A. provides: "255.05....

...tion of suretyship between USF & G as surety and Ward as principal "in connection with all bond(s) heretofore or hereafter executed . . . in any penal sum and in favor of any obligee(s). . . ." As a contractor, Ward was required by Florida law (F.S. § 255.05) to execute a payment and performance bond with a surety insurer authorized to do business in Florida as surety prior to commencing work under any "formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the ....

...§ 270a-d (1958) amended 73 Stat. 279 (1959), 40 U.S.C. § 270a-d (Supp. IV 1959-1962) (current version at 40 U.S.C. § 270a-d (1982) and the predecessor Heard Act, 28 Stat. 278 (1894), as amended 33 Stat. 811 (1905). The state counterpart in Florida is section 255.05, Florida Statutes....

...[21] As noted supra, category (2) funds are those earned by the contractor by performance and payment of labor and materials before default, and actually due and payable to the contractor by the owner, but not paid over to the contractor or bank and still held by the owner. [1] § 255.05 Fla....

...eater than $100,000 with any county of the state execute a performance bond with a surety insurer. The bond must be conditioned on the contractor's performance of the contract requirements, including provisions for the payment of subcontractors. See § 255.05, Fla.Stat....

...estate, and that AHAC is entitled to distribution from the estate only as a general unsecured creditor. Background In 1995 and 1996, the Debtor entered into contracts for the construction of certain roads or highways for the FDOT. In accordance with § 255.05 of the Florida Statutes, before commencing work on an FDOT project, the Debtor was required to provide "a payment and performance bond with a surety insurer authorized to do business in this state as surety." Fla. Stat. § 255.05(1)(a)....

...on project and obtains a bond to assure its performance under the contract. Contractors that undertake public projects generally are required by statute to obtain both payment and performance bonds. See, for example, 40 U.S.C. § 270a and Fla. Stat. § 255.05....

...Rehearing Denied August 2, 1979. *1178 Clyde N. Wells, Jr., Jacksonville, for appellant. Edward L. Nowak, Jacksonville, for appellee. ERVIN, Judge. Does the failure of a performance bond to include specific reference to the notice provisions and time limitations of Section 255.05(2), Florida Statutes (1975), even though the bond required the contractor to comply with the provisions of Section 255.05, make the bond a common law, rather than a statutory bond? We conclude it does not....

...ond as well as the limitations periods stated in the statute, but we think such language must be restricted to the facts in those cases which are distinguishable from those here. In both Holly Hill and Miller the performance bonds failed to refer to Section 255.05, failed to contain any limitation with respect to the time within which a suit on the bond could be commenced and, most importantly, granted broader coverage than the minimum required by the statute....

...minimum obligation placed upon the principal and his surety by statute has been expanded by the bond. See Fulghum v. State, 92 Fla. 662, 109 So. 644 (1926). Here the bond, while containing no reference to the statutory limitation, specifically cited Section 255.05....

...." [1] If any ambiguity arguably existed in the bond, [2] it could hardly be construed against the surety which did not prepare the bond. Appellant Consolidated Pipe and Supply Co., Inc., a supplier to a subcontractor, brought suit in the name of the state for its use and benefit as required by Section 255.05(1)....

...The bond's drafter, the State of Florida and the nominal plaintiff, is the only party that is subject to the rule of strict construction — not the surety. We conclude that the lower court correctly held the bond was statutory. Since the complaint failed to allege compliance with the one-year time limitation of Section 255.05(2), the lower court's order granting the motion to dismiss is affirmed. McCORD, Acting C.J., and LARRY G. SMITH, J., concur. NOTES [1] Compare the above language with Section 255.05(1), stating that "such contractor shall promptly make payments to all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors in the prosecution of the work provided for in said contract; ... ." [2] Section 255.05, Florida Statutes (1975), subsequent to the execution of the bond, was amended by Ch. 77-81, § 1, Laws of Florida, by providing a suggested bond form, which, like the present bond, makes specific reference to Section 255.05, but does not incorporate the statute's notice and time provisions, which remain unchanged.

...ellee was therefore liable to appellants under its surety bond for the sum owed by Quality. Appellee filed a motion to dismiss appellants' second amended complaint on the *1165 grounds that the performance bonds in question were executed pursuant to Section 255.05, Florida Statutes (1975), and that (1) appellants were not claimants as defined by Section 255.05 because they did not claim to be in direct privity with Titan and were not a subcontractor to Quality, and (2) there was no Florida authority permitting recovery of union benefits against a Section 255.05 bond....

...of Leesburg, 351 So.2d 396 (Fla. 2d DCA 1977), and J.W. Bateson Co., Inc. v. United States ex rel. Board of Trustees of the National Automatic Sprinkler Industry Pension Fund, 434 U.S. 586, 98 S.Ct. 873, 55 L.Ed.2d 50 (1978). This appeal followed timely. Section 255.05 requires that a contractor on a public works construction job provide a bond for the protection of certain persons supplying labor or materials to that job. Although no Florida court has expressly recognized that trustees of fringe benefit funds may assert a claim for delinquent contributions against a Section 255.05 bond, we conclude that such a claim is proper....

...(EUCC) which provided that EUCC must pay to the trustees of various fringe benefit funds an amount based on the number of hours worked by covered employees. EUCC entered into a public works contract with the city of Vero Beach. Pursuant to the requirements of Section 255.05, EUCC purchased a payment and performance bond from United States Fidelity and Guarantee Co....

...it funds imposed by the collective bargaining agreement. The district court denied the motion, relying on United States ex rel. Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). The court noted that Florida courts have stated that Section 255.05 was patterned after the Miller Act, 40 U.S.C. § 270 (a) et seq., and that where there are no Florida decisions interpreting Section 255.05, a court should look for guidance to decisions interpreting the Miller Act....

..., building or improvement, and they and each of them are hereby made obligees hereunder, in the same manner as if their own proper names were written herein, as such, and they and each of them may sue hereon, all in accordance with the provisions of Section 255.05 Florida Statutes and any amendments thereto, approved, the provisions of that act being hereby made a part of this bond as though fully set forth herein. The purpose of Section 255.05 is to protect laborers and materialmen on public works projects. City of Fort Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1964). To hold that trustees of collectively bargained fringe benefit funds cannot recover unpaid contributions from a surety on a Section 255.05 bond would be to render unprotected a large portion of the laborers' compensation package. One who supplies labor or materials to a subcontractor is within the class of those required to be protected by a Section 255.05 bond. Hardrives, supra . Section 255.05 requires that one who enters into a contract with a city of the state of Florida for construction, repair, or completion of any public building must execute a penal bond and that, in addition to the usual protection, the bond must be c...

...contract... ." (Emphasis added.) Appellants alleged in their second amended complaint that Quality contracted with Titan, the prime contractor. Thus, Quality was a subcontractor, and, therefore, a supplier of labor to Quality must be protected by a Section 255.05 bond. As noted in Sherman, when trustees bring an action against a bond such as Section 255.05, the unpaid contributions are considered the equivalent of wages due the employees....

...The Debtor also negotiated and obtained three contracts with the City of Altamonte Springs for 1) the construction of a boulevard extension and 2) the construction of a reclaimed water transmission main, and 3) the construction of reclaimed water irrigation connections. In compliance with Fla.Stat. § 255.05, the Debtor posted performance and payment bonds issued by MCA on its behalf in connection with these construction projects....

...MCA promptly filed a Motion to Strike the Trustee's Supplemental Affidavit and it also seeks attorney fees, contending that the Trustee made false and misleading statements of facts in the Supplemental Affidavit, specifically by stating that there was no compliance with Fla.Stat. § 255.05(2) because all but three of the claimants failed to file "notices to owner"....

...Thus, the majority opinion disregards a validly enacted statutorily required condition, which a court is not entitled to do. *491 As this court said concerning another plain statutory requirement which this court recognized had been persuasively argued to not apply, [S]ection 255.05(2) is clear and unambiguous and requires the result ......

...v. Taylor Woodrow Construction Corp., 565 So.2d 861, 862 (Fla. 2d DCA 1990) (emphasis added), approved sub nom., Taylor Woodrow Construction Corp. v. The Burke Co., 606 So.2d 1154 (Fla. 1992). And as the supreme court said in The Burke Co., Because section 255.05(2) is clear on its face, this court must construe the words chosen by the legislature in their plain and ordinary meaning.......

...had issued joint checks to United and Alpha for the materials furnished by Alpha to the Baker County project and thus had fully performed; and (3) Alpha had not filed its suit within one year following completion of delivery of materials, thus under section 255.05(2), Florida Statutes (1977), the action was barred....

...This in itself is sufficient to create an issue on the question of consideration. Additionally, at the time the contract was signed, the right did exist because Alpha was still supplying materials and Alpha's subsequent failure to perfect its rights under section 255.05(2) could well be interpreted as performance by appellant of its promise....

...m its language. Arguably, Drake's interpretation might also be drawn, but this presents an issue of fact, not to be decided by summary judgment. Mathews. *366 Lastly, the trial court's holding that the action was barred by the one-year limitation of section 255.05(2), Florida Statutes (1977), is also incorrect because this action was not based on the statute, but on the written agreement between the parties as to which agreement the one-year limitation does not apply....

...agrees to continue making any and all checks to United Electric Company on a joint basis with Alpha Electric Supply, Inc. This agreement is hereby acknowledged by Drake Contracting, Inc. by execution of a copy of this letter as attached and its return to Alpha Electric Supply, Inc. * * * * * * [2] Thus, under section 255.05, Florida Statutes (1977), which required that a claimant not in privity with the contractor, give written notice to the contractor and the surety of performance and non-payment within 90 days after complete delivery of the materials or...

...ALLEN, Acting Chief Judge. This appeal is brought by defendants as appellants from a verdict and judgment in favor of plaintiff in a suit against defendant general contractor and defendant surety on a statutory construction completion bond under §§ 255.05 and 337.18, F.S.A., for road work performed for the state....

...The rental claimed to be due and recovered by the verdict was $8,520.00. *757 Outside of plaintiff's vice president, Dunlap was plaintiff's chief witness. The lower court admitted testimony by two witnesses for defendants which assassinated Dunlap's reputation for truth and veracity. The language of § 255.05, F.S.A., pertinent to the instant case reads as follows: "Any person entering into a formal contract with the state * * * shall be required * * * to execute the usual penal bond, with good and sufficient sureties, with the additional obliga...

...Such would have to have been the case for him to occupy the status of a subcontractor as that word is ordinarily defined. Thus, plaintiff is relegated to the position of materialman of a materialman which is excluded from the protection afforded by § 255.05, F.S.A., by the plain meaning of the language used therein....

...In a broad sense the chapters are in pari materia and should, to the extent that an understanding of one may aid in the interpretation of the other, be read and considered together." In the instant case, the pari materia relationship is much closer for § 255.05, F.S.A., provides for the enforcement of liens in work performed for the sovereign of the same type that Chap. 84, F.S.A., provides for enforcement of against private persons. Since § 255.05, F.S.A., contains no definition of "materialman" we deem controlling the one contained in § 84.01, F.S.A....

...ials furnished to a mere materialman is likewise without the provisions of the statute, inasmuch as the statute permits recovery only by `any person or persons performing such services or furnishing material to any subcontractor.'" Under our statute § 255.05 and in view of persuasive authority from other jurisdictions we therefore hold that one who supplies rental equipment to a materialman who uses said equipment for extracting materials in turn furnished to a general contractor for incorporat...

...[2] The bond issued in this case is the same bond involved in Plaza Materials and therefore suffers the same deficiency in that although it substantially conforms to the statutorily approved bond form, it fails to include provisions required by subsections (1) and (6) of section 255.05, Florida Statutes....

...Plaza Materials determined that the consequence of the bond's non-compliance should be that the bond automatically becomes a common law bond, or at least renders the time restrictions in subsection (2) unenforceable, even though no prejudice has resulted from such non-compliance. But as we read section 255.05(4), perhaps the most unambiguous portion of the statute, Florida no longer recognizes a common law payment bond given on a public works project. [3] The payment provisions of all bonds given on a public works project regardless of form, the legislature tells us, shall be construed as statutory bond provisions subject to the requirements of section 255.05(2)....

...[6] In Martin Paving, we held that "unless subsection (1) is complied with, subsection (4) does not operate to require the claimant's compliance with subsection (2)." We construe this statement to mean that when neither party has complied with the requirements of section 255.05, we are free to fashion a remedy which does not require compliance with subsection (2) by the claimant if such non-compliance has resulted from the failure of the bond to include the information required by subsections (1) or (6)....

...NOTES [1] The original opinion was withdrawn and modified. See, American Home Assurance Co. v. Plaza Materials Corp., 27 Fla. L. Weekly D571 (Fla. 2d DCA March 8, 2002). This opinion is modified to reflect that change. [2] Appellant candidly admits that its failure to comply with the requirements of section 255.05(2), Florida Statutes, was not caused by appellee's failure to include the information required by sections 255.05(1) and (6) of said statute in the bond....

...The sureties, Insurance Company of North America and Fidelity Fire Insurance Company, were obligors on the construction contract bonds. The trial court dismissed the claims against the sureties on the ground that they had not been filed within the one year period set forth in section 255.05(2), Florida Statutes (1977)....

...Stat. (1977). Accordingly, we reverse and remand for further proceedings. Appellant argues that Florida courts have recognized a distinction between statutory bonds and common law bonds. Statutory bonds are those which meet the minimum requirement of section 255.05; common law bonds are those which provide coverage in excess of the minimum statutory requirements....

...s surety. The test requires a comparison of the minimum requirements enunciated in the statute and the language contained within the bond. State ex rel Consolidated Pipe & Supply Co. v. Houdaille Industries, Inc., 372 So.2d 1177 (Fla. 1st DCA 1979). Section 255.05, Florida Statutes (1977) requires: (1) Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of any public building, for the pro...

...isconduct by employees of the contractor. Thus, under the Houdaille Industries test, the bonds qualify as common law bonds. We reject the argument proposed by the sureties that it was incumbent upon the college to obtain a bond which qualified under section 255.05 and that no other bond was allowable....

...Their argument ignores the many cases which recognize distinctions in bonds issued in connection with public projects. Even though a bond is furnished pursuant to a public works project, it will be construed as a common law bond if its provisions are more expansive than those required by section 255.05....

...Southwest Florida Water Management *1253 District ex rel Thermal Acoustic Corp. v. Miller Construction Co., 355 So.2d 1258 (Fla. 2d DCA 1978). Cf. Motor City Electric Co. v. Ohio Casualty Insurance Co., 374 So.2d 1068 (Fla. 3d DCA 1979) [bond not governed by sections 255.05 and 713.23, Florida Statutes (1977) even though it incorporates those statutes]. In Houdaille the court was concerned with the absence of a reference to section 255.05 in the bond. The court concluded, in effect, that failure to mention section 255.05 did not automatically render the bond a common law bond....

...However, collection of that judgment proved unsuccessful because Palm Beach Guardrail lacked assets. Trinity then filed an action against the County alleging that the County had failed to require Palm Beach Guardrail to post a bond in accordance with section 255.05, Florida Statutes (1991). In the parties' undisputed statement of facts, it is conceded that the County did not require the contractor, Palm Beach Guardrail, to submit a payment and performance bond under section 255.05(1)(a). The parties also stipulated that the estimated annual amount of the guardrail contract between the County and Palm Beach Guardrail was for $250,000.00. Section 255.05(1)(a), Florida Statutes (1991), requires, in pertinent part: Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, ......

...Contractor, Inc., 438 So.2d 1018, 1019 (Fla. 4th DCA 1983); Winchester v. Florida Elec. Supply, Inc., 161 So.2d 668, 669 (Fla. 2d DCA 1964). In following the Florida Supreme Court in Warren v. Glens Falls Indem. Co., 66 So.2d 54 (Fla. 1953), this court has explained that section 255.05 places a corresponding duty on the public agency, as well as the contractor, to see that a bond is in fact posted for the protection of the subcontractors before construction commences....

...arties was for one year. There exists no genuine issue of material fact that Palm Beach Guardrail became *945 insolvent, making it impossible for Trinity to collect against its default judgment. Furthermore, we find that the legislature, by enacting section 255.05, intended to protect the subcontractor, or materialman, from precisely this type of occurrence....

...Clearly, the contract between the County and Palm Beach Guardrail exceeded the $200,000.00 exemption, thus requiring the County to ensure that Palm Beach Guardrail "execute, deliver to the public owner, and record in the public records ... a payment and performance bond... ." § 255.05(1)(a), Fla....

...Accordingly, I do not find persuasive Trustees, Florida West Coast Travel Trades Pension Fund v. Quality Concrete Co., 385 So.2d 1163 (Fla. 2d DCA 1980), upon which the plaintiffs rely. There, the court's holding that the insurer under a performance bond on a public works contract issued pursuant to Section 255.05, Florida Statutes, could be held liable for contributions on behalf of laborers to union pension funds where the bond called for the insurer to pay the debts incurred by any subcontractor in the prosecution of the work, "including thos...

...paid Omni, Omni became bankrupt. [2] The defendants, appellees herein, are F.I.T.R. and Fidelity and Deposit Company of Maryland, which on behalf of the owner posted surety bonds to which the claims of lien were transferred. [3] The court noted that Section 255.05, Florida Statutes, was patterned after the Miller Act, 40 U.S.C....

...the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence." [2] We assume for purposes of this appeal that the bond involved in this case is a common law bond rather than a statutory bond, § 255.05, Fla....

...The payment and performance bonds were issued on the Department of Transportation's ("DOT") standard contract bond form XXX-XXX-XX. The *359 trial court determined that the relevant bonds were common law bonds rather than statutory bonds subject to the restrictions of section 255.05(2), Florida Statutes (1995). Because we conclude that the standard DOT contract bond form does not comply with the mandatory notice provisions in section 255.05(6) and that this failure permits claims to be enforced under the rules applicable to common law bonds, we affirm....

...as surety. However, Fulton did not pay Plaza. Thereafter, both Fulton and Cone filed for bankruptcy protection. As a result, Plaza sought payment from the bond. Plaza, however, did not comply with all of the notice and time requirements contained in section 255.05(2) when perfecting these claims. Section 255.05 is often referred to as the Little Miller Act ("the Act"). See Delduca v. United States Fid. & Guar. Co., 357 F.2d 204, 208 (5th Cir.1966). The Act generally requires a statutory payment and performance bond on all significant public construction projects. See § 255.05(1)(a). Section 255.05(1)(a) specifically describes the content of such a bond, requiring that this recorded bond "state the name and principal business address of both the principal and the surety and must contain a description of the project sufficient to identify it." Statutory bonds are subject to many notice and time requirements that are contained in section 255.05(2)....

...Co., 355 So.2d 1258 (Fla. 2d DCA 1978); Am. Cast Iron Pipe Co. v. Peabody-Petersen Co., 328 So.2d 229 (Fla. 4th DCA 1976). In 1980, the legislature amended the Act to add two significant provisions. See ch. 80-32, § 1, Laws of Fla., as codified in § 255.05(4), (6). Section 255.05(4) currently states: (4) 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). Section 255.05(6) currently states: (6) All bonds executed pursuant to this section shall make reference to this section by number and shall contain reference to the notice and time limitation provisions of this section....

...when it attached its power of attorney to the standard document. The trial court concluded that the bonds in this case were common law bonds rather than statutory bonds and that therefore American Home could not enforce the restrictions contained in section 255.05(2)....

...ast of Harden." Again, no one suggested that Plaza was confused about the locations to which it delivered materials. Third, the trial court concluded that the bonds contained more expansive payment and performance requirements than those required by section 255.05(1)....

...For example, the bonds secured the contractor's obligation to promptly pay all State Workers' Compensation and Unemployment Compensation taxes incurred in the performance of the contracts and the contractor's liability for double the damage caused by the contractor's fraud or overcharge. However, in light of the language in section 255.05(4), which the legislature added in 1980, we are not convinced that the additional payment or performance obligations in this bond necessarily caused the payment provisions required by the Act to fall outside the notice and time requirements contained in section 255.05(2)....

...sufficient to transform the bonds from statutory to common law, we are not required to reach these issues because the fourth reason announced by the trial court is dispositive. In its fourth reason, the trial court concluded that the bonds violated section 255.05(6) because they made no reference to the notice and time limitations of section 255.05(2). There can be no dispute that the DOT bond does not "contain reference to the notice and time limitation provisions of [section 255.05]." This is a mandatory requirement of subsection (6). [2] Section 255.05(4) requires that the "payment provisions" be deemed statutory and subject to all the requirements of subsection (2)....

...Because it is important that all courts apply the law to this standard form in a timely and uniform manner, we certify the following question as a matter of great public importance: IF A STATUTORY PAYMENT BOND DOES NOT CONTAIN REFERENCE TO THE NOTICE AND TIME LIMITATION PROVISIONS OF SECTION 255.05, AS REQUIRED BY SECTION 255.05(6), ARE THOSE NOTICE AND TIME LIMITATIONS NEVERTHELESS ENFORCEABLE BY THE SURETY, OR IS THE CLAIMANT ENTITLED TO RELY UPON THE NOTICE AND TIME LIMITATIONS APPLICABLE UNDER THE COMMON LAW? Affirmed; question certified....

...Thus, these forms were created about one year after the opinion in Martin Paving Co., 646 So.2d 268, was issued. The forms in this case are essentially identical to the forms used in Martin Paving. The only difference between the forms is that in addition to referring to section 255.05, Florida Statutes (1993), the bond form in Martin Paving referenced a repealed statute, section 337.13, Florida Statutes (1975)....

...The form in this case referenced a current statute, section 337.18, Florida Statutes (1995). [2] We note, as did the court in Martin Paving, that the suggested form for a statutory bond contained in the statute itself fails to contain this mandatory provision. See § 255.05(3), Fla....

...ts. On May 9, 1984, Westinghouse sent a notice of nonpayment to Harvesters. When it failed to receive payment, Westinghouse filed an action seeking to recover on Harvesters' bond. Finding that Westinghouse had complied with both notice provisions of section 255.05(2), Florida Statutes (1983), [1] and was entitled to recover on the bond, the trial court entered final judgment in its favor. After due deliberation, we hold that the ninety-day notice furnished to Harvesters and its surety did not comply with notice requirements of section 255.05(2). We reverse the final judgment. Because section 713.01(14), Florida statutes (1987), precludes claimants from obtaining liens on public property, section 255.05(1) provides a claimant who is not in privity with the general contractor on a public construction project a right of action against the contractor and its surety for unpaid materials or labor....

...v. Progress Supply, Inc., 389 So.2d 253 (Fla. 3d DCA 1980); State v. Clutter Constr. Corp., 132 So.2d 21 (Fla. 3d DCA 1961), aff'd, 139 So.2d 426 (Fla. 1962). Before instituting a lawsuit, however, a claimant must comply with notice requirements of section 255.05(2)....

...Centennial Constr., Inc., 489 So.2d 216 (Fla. 3d DCA 1986). In United States ex rel. Light & Power Utilities Corp. v. Liles Constr. Co., 440 F.2d 474 (5th Cir.1971), the court considered the purpose of the notice provision in 40 U.S.C.A. § 270b(a), a provision similar to section 255.05(2): [3] The [Miller Act] provides a method by which those who supply subcontractors may protect themselves....

...nsettled for an indefinite length of time, at the convenience of those who may wish to give notice of a claim. Liles Constr., 440 F.2d at 478. See 3 S. Rakusin, Florida Mechanics' Lien Manual ch. 32 (1987); see also Fasano, Inc., 417 So.2d at 1065 ("Section 255.05(2) protects the contractor and the contractor's surety from having to account to unknown suppliers and subcontractors by putting the burden on the claimants to advise the contractor and surety of their participation on the project and...

...A second controlling principle of statutory construction is the rule that words of common usage should be construed in their plain and ordinary sense. Seaboard System R.R. v. Clemente, 467 So.2d 348, 355 (Fla. 3d DCA 1985) (citations omitted). We direct our consideration, therefore, to section 255.05(2), which provides, in pertinent part: A claimant who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 90 days after performance of the labor or after complete d...

...installed and operational occurred after the final delivery from which the time for computing notice commenced. [5] Finally, we conclude that neither the October 1983 nor the May 1984 notice complied with the statute's directive. Reversed. NOTES [1] Section 255.05(2), Florida Statutes (1983) provides: (2) A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish l...

...The parties agree that Westinghouse complied with the forty-five-day notice requirement; at issue is whether Westinghouse complied with the ninety-day notice. [3] Florida courts have been guided by federal decisions construing provisions of The Miller Act, 40 U.S.C.A. § 270a et seq. (1986), which are similar to section 255.05....

...Instruction v. Rood Constr. Co., 166 So.2d 701 (Fla. 3d DCA 1964). Cf. Coastal Caisson Drill Co. v. American Casualty of Reading, Pa., 523 So.2d 791 (Fla. 2d DCA 1988). [4] Florida Mechanics' Lien Law, ch. 713, Fla. Stat., aids in construing provisions of section 255.05....

...Baker Bros., 168 So.2d 576 (Fla. 1st DCA 1964), cert. denied, 173 So.2d 146 (Fla. 1965), to support their contention that delivery of the replacement ballasts commenced the ninety-day notice period. In Clutter, the court held that the materialman complied with § 255.05(2), Fla....

...4th DCA 1989) and U.S., f/u/b/o Pertun Constr. Co. v. Harvesters Group, Inc., 918 F.2d 915 (11th Cir.1990). Moreover, we point out that D.I.C. dealt purely with a surety's obligation under a payment bond which specified that its terms did not extend beyond the statutory requirements of section 255.05, Florida Statutes (1989). On the other hand, the case at bar deals strictly with a common law bond; section 255.05 is not mentioned.

...within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made. . . . However, the top of this bond was stamped with the following language: "This bond hereby is amended so that the provisions and limitations of section 255.05 or section 713.23 ....

...[1] Florida Crushed Stone Co. v. American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002), upon which the majority relies to support its "no prejudice" analysis is inapposite. That case dealt with a public project payment bond under the provisions of section 255.05, Florida Statutes....

...The distinction is significant because the public project payment bond statutory scheme contains an unambiguous expression of legislative intent that public project payment bonds must be construed as statutory bonds and "shall not under any circumstances be converted into common law bonds." § 255.05(4), Fla....

...held that to construe a nonconforming public project payment bond as a common law bond would be "contrary to the express language of the statute." Id. at 716. See also Am. Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360 (Fla.2005) (noting 1980 legislative change to § 255.05, precluding courts from construing deficient statutory bond as common law bond)....

...Home Assurance Co., 815 So.2d 715, 717 (Fla. 5th DCA 2002) (emphasis added); see also Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 367 (Fla.2005) (approving Florida Crushed Stone and overruling opinions holding that companies' technical noncompliance with section 255.05(6) prevented them asserting statutory notice and time requirements even if claimants were not prejudiced)....

...For example, persons wishing to enter into a formal contract with the state or its subdivisions for the construction of a public work are required to execute, deliver, and publicly record a payment and a performance bond with a surety insurer. See § 255.05(2), Fla....

...Although Florida law does not require private developers and contractors to acquire these bonds, almost all of them do. See Trans-america Ins. Co. v. Barnett Bank of Marion County, N.A., 540 So.2d 113, 115 (Fla. 1989) (“Because of their importance, payment and performance bonds are mandatory under section 255.05 for government projects and are commonly employed by prudent private owners.”)....

...A counterclaim was also filed against Wall claiming damages in the amount of $126,941.69. Travelers answered and generally denied the material allegations of the complaint. It also presented affirmative defenses to Count II, denying that relief demanded was within the scope of § 255.05, Fla....

...Travelers Indemnity has presented three points for reversal and has argued them together: (1) the court erred in denying Travelers' motion to strike, as against Travelers, all Count II claims for damages and in rendering judgment against Travelers in this regard; (2) a sub-contractor-obligee on a § 255.05 Fla....

...trial, under the rules concerning invited error, estoppel, and stipulation; (2) the bond sued upon does provide for liability of the surety to the subcontractor for damages for delay, because the provisions of the bond go beyond the requirements of § 255.05 and beyond the usual performance and payment bond under § 627.0905, Fla. Stat., F.S.A. by providing, inter alia, to pay for "all just claims and damages," and (3) a bond under § 255.05 does provide for liability of the surety. To begin with, under the facts of this case, we express the view that the bond in question is a payment and performance bond containing provisions more extensive than the requirements under § 255.05, Fla. Stat. 1965, F.S.A. In 1966, § 255.05, Fla. Stat. 1965, F.S.A., read as follows: " 255.05 Bond of contractor constructing public buildings; suit by materialmen, etc....

...t in the name of the state ... or political subdivision, prosecuting said work, for his use and benefit, against said contractor, and sureties, and to prosecute the same to final judgment and execution; * * *" The statute has since been revised, but § 255.05, Fla....

...and shall promptly pay all just claims for damages or injury to property and for all work done, or ... labor and materials furnished and debts incurred by the contractor in and about the performance of the work contracted for ..." We view the allegation in the complaint concerning § 255.05, Fla....

...Section 515 imposes a statutory obligation on an employer to make contributions to a benefit plan as required by a collective bargaining agreement. Section 502(a)(3) specifies who is empowered to bring civil actions to enforce benefit plans. Plaintiffs' pendent state claim arises under Florida Statutes 255.05 and 713.23. Section 255.05 requires contractors to execute a payment and performance bond with a surety insurer prior to commencing repair or construction of a public building....

...Plaintiffs do argue, however, that Defendants acted "indirectly" in the interest of Hicks in relation to the benefit plans and therefore come within the second clause of Section 1002(5). For this contention Plaintiffs rely upon Florida Statutes 713.23 and 255.05 which, they argue, make the Defendant contractors and sureties statutorily liable for Hicks' delinquent contributions. According to Plaintiffs, this liability, although grounded in state law, in essence places the Defendants in the shoes of Hicks, and thereby converts them into employers as defined in ERISA. Even assuming, arguendo, Florida Statutes 713.23 and 255.05 impose liability on the Defendants for Hicks' failure to make contributions to the Plaintiff funds, a question which this Court need not reach, such state statutory liability would not effect the scope of the term "employer" as defined and applied under ERISA....

...It, in turn, contracted with a subcontractor who was signatory to a collective bargaining agreement requiring it to contribute a stated amount to fringe benefit trust funds. The third defendant was a surety who issued a payment bond on the construction of the school to the contractor, pursuant to Florida Statute Section 255.05....

...In fact, jurisdiction was predicated solely upon the Labor Management Relations Act, 29 U.S.C. Section 185, (which grants federal jurisdiction over "suits for violation of contracts between an employer and a labor organization ...") and Florida Statute 255.05. Moreover, the Fifth Circuit made explicit that the trustees' cause of action against the surety was "based on the payment and performance bond and Section 255.05, rather than on the collective bargaining agreement." Gergora, at 390....

...visioned by Section 1002(5), but rather acts for the benefit of those who have been damaged by the contractor's failure to pay. See Gergora v. R.L. Lapp Forming, Inc., 619 F.2d 387, 389 (5th Cir.1980). ("Florida Courts have recognized the purpose of Section 255.05 to be `the protection of materialmen, laborers and the like, whose labor and materials are put into public works projects, upon which they can acquire no lien.'") On the meager Complaint before this Court, it simply cannot be said that...

...On appeal, appellant asserts error and claims there was no legal obligation by it to the plaintiff materialman under this bond, and because there were genuine issues of material facts which remained to be determined on the merits. The bond in question was not written for work on a public building pursuant to Section 255.05, Florida Statutes, F.S.A., and the case of Collins for Use and Benefit of Dixie Plywood Co....

...has not been addressed by the Florida courts. In fact, Travelers Indemnity Co. v. Housing Authority of City of Miami, 256 So.2d 230 (Fla. 3rd DCA 1972), the one Florida case which allowed delay damages against the surety, dealt with Florida Statute section 255.05 regarding payment bonds on public construction projects....

...Accordingly, it is hereby ORDERED AND ADJUDGED that Fidelity & Deposit's Motion to Dismiss is GRANTED insofar as it seeks to dismiss Plaintiff's claim for the recovery of delay damages against this surety. [3] NOTES [1] Florida courts have looked to the Miller Act in interpreting Florida Statute section 255.05 governing payment bonds on public construction projects....

...After a trial the court awarded Knight all of its claimed damages. NOTICE D.I.C. and Hartford claim that Knight's notice of October 18 was untimely because it was more than forty-five days from the first day of performance on its contract with Woven Wire as required by § 255.05(2), Florida Statutes which provides: *979 A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials or supplies shall, within 45 days after beginning to furnish labor,...

...the performance of the labor or completion of delivery of the materials or supplies. (Emphasis supplied). The requirement that notice be given within the specified forty-five day period is a condition precedent to the maintenance of an action under § 255.05....

...Knight commenced work on the cafeteria portion of the project. Knight asserts, however, that the forty-five day period began to run no earlier than September 23, 1986 when Woven Wire gave it a purchase order on Building 10. We must determine whether § 255.05 contemplates the 45 day period to commence running when any work is done by a claimant on the project, or whether it permits the notice time clock to start over if a legitimate second contract is made....

...September, and cites numerous cases decided under the federal Miller Act that have recognized that more than one contract may be used to measure notice requirements. [1] See also Arabi Homes, Inc. v. Bachrach, 446 So.2d 725 (Fla. 2d DCA 1984). Since § 255.05 was patterned after the Miller Act, we agree those decisions are persuasive authority to support the trial court's decision here. See City of Fort Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1964). Section 255.05 speaks of "the prosecution of the work"....

...Waters, 384 So.2d 61 (Fla. 1st DCA 1980), relied upon by the appellants. The court in Waters held that an oral modification of a written contract after 70% of the work on the contract had been performed did not start a new forty-five day period for purposes of Section 255.05....

...The trial court awarded Knight a total of $49,839.77 with interest. It based the award on Knight's accounting which represented the amounts it charged on the work orders, and included charges for the delays. The appellants argue that the court erred in awarding the additional charges because recovery pursuant to Section 255.05 is limited to the amount contracted for in the prosecution of work. In W.S.A. Inc. v. Stratton, 680 F. Supp. 375 (S.D.Fla. 1988), the court examined the language of Section 255.05 and of the payment bond to determine whether damages stemming from a delay in a construction project were recoverable. It stated that Section 255.05 only held a surety liable for "labor, materials, and supplies"....

...It found that the scope of the surety's liability, therefore, did not include damages stemming from the delay. The court in Stratton distinguished its facts from the facts of Travelers Indem. Co. v. Housing Auth. of Miami, 256 So.2d 230 (Fla. 3d DCA 1972) where the payment bond itself contained broader language than Section 255.05....

...In Travelers, the court stated that a *981 surety is bound by any terms of its bond that extend beyond the statutory requirements. The payment bond in the instant case contains the following "Condition of Bond": "1. Promptly makes payments to all claimants, as defined in 255.05(1), Florida Statutes, supplying Principal with labor, materials, or supplies, used directly by Principal in the prosecution of the work provided for in the contract ......

...implements, machinery, equipment, tools, apparatus, materials, means of transportation, and performance of all work shown on the drawings, and described in the specifications ..." The language of the contract payment bond is no broader than that of § 255.05....

...ted this suit against the subcontractor and its *264 surety to collect the amount due and owing. United Bonding Insurance Company takes the position that since this bond named the prime contractor as obligee, it was neither a public works bond under Section 255.05, Florida Statutes, F.S.A., nor a private bond under Section 84.231, Florida Statutes, F.S.A....

...nics' Lien Law, provides that the bond be conditional for making payments to all persons supplying "labor, material and supplies used directly or indirectly by said contractor, subcontractor or sub-subcontractor in the prosecution of the work * * *" Section 255.05, Florida Statutes, F.S.A., governing public works bonds, is identical to the above except it does not contain the words "or sub-subcontractor." Thus, both statutes recognize the liberal purpose of such bonds to include assurance of pay...

...This bond provided that the subcontractor would perform the work free and clear of all liens for labor and materials and that the surety would save the obligee harmless from all loss, cost or damage he may suffer by reason of failure to do so. The Fourth District Court of Appeal held that Section 255.05 was wholly irrelevant, and Section 627.0905 does not have the effect of making the bond for the use and benefit of persons who are not entitled to a lien under Chapter 84 as in effect prior to October 1, 1963....

...cally conditioned to pay only liens. Therefore, we hold that the above two cases are not controlling. The Appellee argues that the construction job to be performed was a public road, that presumably the contractor furnished a public works bond under Section 255.05, that rentals of equipment are covered under such bonds, that the bond furnished by the subcontractor was designed to relieve the contractor and his surety of any and all claims arising against the subcontractor, so this bond was required to follow the terms of a public works bond....

...e of limitations had run but also because the payment and performance bond did not insure against the risks described in this suit. " 416 So.2d at 31 (emphasis supplied). Moreover, the statute of limitation applicable in Florida Board of Regents was section 255.05, Florida Statutes (1965), which contained the following explicit provision: "No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after one year from the...

...t an issue in this appeal. [2] § 95.11(2)(b), Fla. Stat. [3] § 95.11(3)(c), Fla. Stat. [4] Incorporating by reference of the construction contract into a payment and performance bond is believed to be universally employed by the bond industry. See § 255.05(3), Fla....

...We cannot therefore accept that case as authority for so drastic a change in the established law of garnishment in this state as Acme (appellee) would urge upon us. Acme’s remedy was to sue the contractor (Smith) and the surety (Seaboard) on the bond as authorized by F.S. 255.05, F.S.A....

...Burke Co., 606 So.2d 1154 (Fla.1992), and Moretrench American Corp. v. Taylor Woodrow Construction Corp., 565 So.2d 861 (Fla. 2d DCA 1990). Unfortunately, neither Taylor Woodrow nor Moretrench are of much help in resolving the instant case because both cases dealt with section 255.05(2) and the meaning of " complete delivery " of rental equipment, rather than section 713.08(5) and the " final furnishing " of purchased materials....

...The contract provided that any delays to planting beyond six months would result in maintenance fees to the contractor. *602 In October 2005, Aquatic brought suit against Paramount and American Safety Casualty Insurance Company, the issuer of the payment bond required by section 255.05, Florida Statutes (2006)....

...s contemplated by the contract. Count II sought relief against both Paramount and American under the payment bond. American filed a motion to dismiss count II, arguing that Aquatic could not state a claim for recovery under, the payment bond because section 255.05 requires "incorporation" of the materials into the improvement and, while Aquatic alleged the plant materials were "specially fabricated," there was no "specially fabricated" materials exception to chapter 255's "incorporation" requirement....

...project. American again sought dismissal, raising the same arguments advanced in its earlier motion. This time, the court dismissed the claim with prejudice finding "incorporation" of the materials into the improvement is a predicate to claim under section 255.05. The court declined to address American's alternative argument concerning the statute of limitations. The issues raised here are ones of law, i.e., the dismissal of a claim for failure to state a cause of action and the construction to be afforded section 255.05, and thus subject to de novo review....

...3d DCA 2007) (dismissal of complaint for failure to state a cause of action), review denied, 962 So.2d 337 (Fla. 2007). Having reviewed the relevant statutes, we conclude that chapter 713's "specially fabricated" materials exception has been incorporated in section 255.05 and thus the trial court erred in dismissing Aquatic's claim against American....

...See Fla. ex rel. Westinghouse Elec. Supply Co. v. Marvin, 280 F.Supp. 1019, 1021 (S.D.Fla. 1967). Chapter 255 requires that those who contract with the state or its subdivisions for work on a public project must provide a payment and performance bond. See § 255.05(1)(a), Fla. Stat. Section 255.05(1)(a) requires that the bond be "conditioned upon the contractor's ....

...promptly making payments to all persons defined in s. 713.01 who furnish labor, services, or materials for the prosecution of the work provided for in the contract." Chapter 255 does not contain a definitions section. The question, then, is whether section 255.05's reference to the "persons defined in s....

...rder for a supplier of materials to be entitled to assert a claim under chapter 255. While American accurately cites the holdings in those cases, none directly considered the question of "specially fabricated" materials and all were decided prior to section 255.05's 1977 amendment, which established potential lienors under the public project payment bond law as "all persons defined in s....

...ance of the construction work in the time and manner prescribed in the contract and promptly making payments to all persons defined in s. 713.01 who furnish labor, services, or materials for the prosecution of the work provided for in the contract." § 255.05(1)(a), Fla....

...The statute is also considered "`remedial in nature and therefore, entitled to a liberal construction'" to fulfill its intended purpose. Runyon Enters., Inc. v. S.T. Wicole Constr. Corp. of Fla., Inc., 677 So.2d 909, 911 (Fla. 4th DCA 1996) (quoting Trinity Indus., Inc., 661 So.2d at 944). To interpret section 255.05(1) in such a manner as to include and protect claimants who could qualify as lienors under section 713.01 without also utilizing the ancillary definitions which define the parameters of their status would be unreasonable. Such an interpretation would leave the definition of claimants under section 255.05 incomplete and truncated and, in our view, would be inconsistent with legislative intent....

...matter of law.'" Bott v. City of Marathon, 949 So.2d 295, 296 (Fla. 3d DCA 2007) (quoting Alexander v. Suncoast Builders, Inc., 837 So.2d 1056, 1057 (Fla. 3d DCA 2002)). Even if we were to accept American's claim that the statute of limitations on a section 255.05 bond claim begins to run upon the completion of fabrication, we cannot affirm the dismissal on statute of limitations grounds as the factual allegations found in the complaint and its attachments are insufficient to allow us to determine, as a matter of fact and law, when fabrication was complete....

...We reverse because we determine appellee's complaint was not timely filed. The School Board of Polk County awarded M.M. Parrish Construction Company the contract to build George H. Jenkins High School. Acting as a surety to Parrish, appellant issued a payment bond for the project pursuant to section 255.05, Florida Statutes....

...Appellant contended that appellee's suit was untimely. The trial court found that appellee timely filed suit within one year from the performance of labor. The issue is whether appellee filed its complaint within the one-year statute of limitations as required under section 255.05(2)....

...It does appear, however, that appellant is entitled to attorney's fees based on its offer of judgment. NOTES [1] A punch list is a final list of small items requiring completion, or finishing, corrective or remedial work under a construction contract. [2] § 255.05(2), Fla....

...Daniels, Inc., against Raymond Blanton Construction Company, Inc., and Fidelity & Deposit Company of Maryland, who are the principal (contractor) and surety, respectively, on a performance bond given by the contractor to the county in compliance with Section 255.05, Florida Statutes 1941, F.S.A., and pursuant to a contract for the construction of a courthouse for said county....

...rom the action on the substantial ground that the complaint fails to state a cause of action against it. It appears by the complaint that the contractor, in compliance with its contract with Santa Rosa County and in order to meet the requirements of Section 255.05, Florida Statutes 1941, F.S.A., posted two bonds in favor of Santa Rosa County, with Fidelity & Deposit Company of Maryland as surety, one of which was conditioned on the principal (contractor) promptly making payments to all claimants...

...1959), 114 So.2d 478, the defendant surety insists that the use plaintiff was not entitled to recover from it the amount due for premiums on said Workmen's Compensation and public liability insurance. The bond in that case contained, in addition to the conditions prescribed by F.S. 255.05, F.S.A., a further condition that the contractor-principal pay all bills for "services" furnished to the principal in connection with the contract, and in passing thereon we said: "We recognize the word `services' as having a connotation di...

...e trial court correctly held that the premiums payable for insurance furnished to the contractor are included in the coverage of the bond." The word "services" does not appear in the bond now under consideration, which was given in accordance with F.S. 255.05, F.S.A., and carefully traces but does not go beyond the statutory requirements....

...of the contract," he went on to say: "The condition of such obligation does not * * * include payment of insurance premiums for insurance furnished to the contractor. Obviously, the parties could have contracted for coverage beyond that required by Section 255.05, Florida Statutes, but they did not elect to do so." In Phoenix the construction contract required the contractor to procure and maintain Workmen's Compensation, public liability and property damage insurance and to pay all payroll and...

...This issue should have been resolved in plaintiff's favor by the trial court as a matter of law. The general contractor was responsible for constructing two schools, Schools "O" and "H" (collectively, the school projects), and therefore was required by statute to post payment and performance bonds. See § 255.05, Fla....

...Sovereign included plaintiff's name on its monthly reports to the general contractor that listed all of Sovereign's suppliers and subcontractors. Plaintiff timely served notice on the general contractor that it was supplying labor to the school projects under an order given by Sovereign and that it intended to look to any section 255.05 bond for protection and payment....

...n each of the school projects through a joint check issued to plaintiff and Sovereign. Furthermore, defendants' contention that their liability was limited by the joint check agreements is in effect a claim that plaintiff waived its protection under section 255.05 to recover under the payment bonds for future amounts due it as a sub-subcontractor under its contract with Sovereign. However, a sub-subcontractor is statutorily prohibited from waiving in advance its rights under a section 255.05 bond. See §§ 255.05, 713.01(16)(c), Fla. Stat. (1995); see also American Casualty Co. v. Coastal Caisson Drill Co., 542 So.2d 957 (Fla.1989). According to section 255.05: (1)(a) Any person entering into a formal contract with the state or any county ......

...... The claimant shall have a right of action against the contractor and surety for the amount due him or her. ... (2) ... A claimant may not waive in advance his or her right to bring an action under the bond against the surety. (Emphasis supplied). Section 255.05 is "remedial in nature and therefore, entitled to a liberal construction, within reason, to effect its intended purpose." Palm Beach County v....

..."Historically, the purpose of this section is to protect subcontractors and suppliers by providing them with an alternative remedy to mechanic's liens on public projects." Id. Sub-subcontractors are statutorily included within the class of those required to be protected by a section 255.05 bond....

...Vaughn Rivers, Inc., 620 So.2d 1043, 1046 (Fla. 1st DCA 1993). As the supplier of labor to the school projects through its contract with Sovereign, plaintiff was statutorily protected under the payment bonds as a sub-subcontractor. Our supreme court has explained that section 255.05 is for the protection of the public as well as the subcontractors: If the subcontractors have a right to the bond, they have added security....

...This added security is economically beneficial to the public "in that the shifting of the risk of non-payment from the [subcontractors] to the surety will tend to the standardization of prices and wages and also of the quality of labor and materials." American Casualty, 542 So.2d at 958 (citation omitted). Since section 255.05 is for the protection of the public, its provisions cannot be waived by an individual subcontractor....

...In this case, the joint check agreements were no more than what they purported to be—agreements to jointly issue checks to a sub-subcontractor up to an amount certain. This interpretation of joint check agreements is consistent with federal cases *912 interpreting the Miller Act, a federal statute similar to section 255.05....

...We thus hold as a matter of law that the joint check agreements did not limit plaintiff's right to recover under its contract with Sovereign and that plaintiff may avail itself of the protection of the payment bonds issued for its benefit. Therefore, pursuant to section 255.05, plaintiff had a right of action against both Wicole, the general contractor and its surety, National Union, for amounts due it under plaintiff's contract with Sovereign....

...For example, persons wishing to enter into a formal contract with the state or its subdivisions for the construction of a public work are required to execute, deliver, and publicly record a payment and a performance bond with a surety insurer, See § 255.05(2), Fla....

...Although Florida law does not require private developers and contractors to acquire these bonds, almost all of them do. See Transamerica Ins. Co. v. Barnett Bank of Marion County, N.A., 540 So.2d 113, 115 (Fla. 1989) ("Because of their importance, payment and performance bonds are mandatory under section 255.05 for government projects and are commonly employed by prudent private owners.")....

...The payment and performance bonds were issued on the Department of Transportation's standard contract bond form XXX-XXX-XX. This court has held that a surety may not invoke the notice requirements and the shorter statute of limitations provided in section 255.05(2), Florida Statutes (1995), if it agrees to be surety on a bond that fails to comply with the mandatory notice provisions in section 255.05(6)....

...Before HAVERFIELD, C.J., and KEHOE and SCHWARTZ, JJ. KEHOE, Judge. This is an appeal from an order dismissing with prejudice a complaint seeking to recover under the provisions of a common law bond. The complaint was dismissed for exceeding the one year limitations period provided for by Sections 255.05 and 713.23, Florida Statutes (1977)....

...performs the contract at the time and in the manner prescribed in the contract and 2. promptly makes payments to all persons supplying Principal with labor, materials and supplies, used directly or indirectly by Principal or subcontractors in the prosecution of the work provided for in the contract as prescribed by section 255.05 or section 713.23, Florida Statutes, whichever is applicable to the contract, and 3....

...by Principal under the contract and 4. performs the guarantee of all work and materials furnished under the contract applicable to the work and materials, then this bond is void; otherwise it remains in full force. The provisions and limitations of section 255.05 or section 713.23, Florida Statutes, whichever is applicable to the contract, are incorporated in this bond by reference....

...The appellant now refers us to General Electric Company v. Commercial Standard Insurance Company, 335 So.2d 624 (Fla. 1st DCA), cert. denied, 342 So.2d 1100 (Fla. 1976) as authority for reversal. We agree that the bond in question is not governed by the provisions of Sections 255.05 and 713.23 despite the language incorporating those statutes contained in the wording of the bond. Section 255.05 requires the execution of a payment and performance bond by contractors involved in constructing public buildings....

...Indeed, it is doubtful that this statute even applies to a federal public works project such as the one giving rise to this litigation (an issue which we need not resolve). A common law bond grants coverage in excess of the requirements imposed under Section 255.05: "The primary purpose of the statute is to afford additional protection to persons who perform labor or furnish materials to a public works project on which they cannot acquire a lien....

...Rather, the courts recognize a distinction between a statutory bond issued in connection with such a project and a common law bond. A bond, even though furnished pursuant to a public works contract, will be construed as a common law bond if it is written on a more expanded basis than required by Section 255.05, Florida Statutes (1975)....

...The appellant was a materialman-subcontractor on various Broward County street projects. The prime contractor filed bankruptcy proceedings. Normally, appellant would simply recover the sums due from the contractor by claiming against the surety under section 255.05, Florida Statutes (1985)....

...Appellant sued the County seeking recovery out of funds owed by the County to the contractor or its trustee in bankruptcy. Appellant alleged an equitable lien and asserted various other equitable theories in support of its claim. The trial court dismissed *1318 the complaint with prejudice on the undisputed facts. Section 255.05(1)(a), Florida Statutes (1985), provides, in part: 255.05 Bond of contractor constructing public buildings; form; action by materialmen....

...In reversing, however, the court went on to recognize that if the contractor could prove a direct contract with the City, he would be entitled to an equitable lien on museum funds. Appellant further notes that liability has been imposed on a public body where it failed to require that the bonding contemplated by section 255.05 be obtained....

...Before SCHWARTZ, C.J., and BARKDULL and DANIEL S. PEARSON, JJ. PER CURIAM. Appellant, defendant payment bond surety, seeks review of a final summary judgment entered in favor of appellees, public project subcontractors. We hold that a surety on a payment bond, issued pursuant to Section 255.05(1)(a), Florida Statutes (1985), in connection with a public construction project, may raise the defense of negligent performance by a subcontractor on the project....

...Phase I. Later payments reduced the balance to $16,000. Two lawsuits were filed to resolve this matter. The first was filed on July 17, 2000, by Pro-Tech against Reliance Insurance Company, the surety on a payment bond obtained by T & G pursuant to section 255.05, Florida Statutes, in conjunction with this construction project....

...on in the subcontract constituted a waiver of any challenge to venue based on inconvenience or location of the property. The trial court also determined that East Coast’s third-party claim against Safeco was a claim against a payment bond and that section 255.05(5), Florida Statutes (2010), did not require that the action be brought in Brevard County....

...than the Collier County action. A transfer of the Collier County action would thus consume and overrun the Brevard County action. Finally, we agree with the trial court that statutes dealing with lien transfer bonds are not applicable. Rather, it is section 255.05(5) which deals with payment bonds, that is applicable to this case. Section 255.05(5) provides in relevant part that “any action authorized under this section may be brought in the county in which the public building or public work is being constructed or repaired.” (Emphasis added.) Consequently, we are not pers...

...een incorporated in the Project. NEC's claim against Grubbs was based upon a subcontract between NEC and Grubbs. NEC's claim against U.S. Fire was based on a statutory payment bond issued by U.S. Fire, as surety, with Grubbs as principal pursuant to Section 255.05 of the Florida Statutes....

...Fire contends that since NEC withdrew its claim for Revetment Mat, it is the prevailing party as to that claim. NEC argues that pursuant to the Settlement Agreement, since it received a settlement payment from the Defendants, it is the prevailing party as to the entire action. Conclusions of Law Florida Statute section 255.05(2)(a)(2) provides that "in any action brought to enforce a claim against a payment bond under this section, the prevailing party is entitled to recover a reasonable fee for the services of his or her attorneys for trial and appeal or for arbitration, in the amount to be determined by the court which fee must be taxed as part of the prevailing party's costs, as allowed in equitable actions." The parties agree through their pleadings that section 255.05(2)(a)(2) is the controlling statute. *375 There is a dearth of precedent or other persuasive authority interpreting Florida Statute section 255.05(2)(a)(2)....

...Therefore, the parties have cited similar prevailing party provisions in other statutes, and the cases interpreting those provisions as being persuasive and controlling authority in terms of how the Florida state courts have applied the prevailing party language contained in section 255.05(2)(a)(2) and other similar statutes....

...Fire's bond — one for work actually performed on the Project, and a second claim for revetment mat purchased pursuant to a change order for the Project. Accordingly, when the parties settled at mediation, NEC became the "prevailing party" pursuant to Florida Statute section 255.05(2)(a)(2) on its claim for work performed on the Project. When NEC withdrew its claim for the revetment mat, U.S. Fire became the "prevailing party" pursuant to Florida Statute section 255.05(2)(a)(2) on NEC's Revetment Mat Claim....

...The use plaintiff, GENERAL ELECTRIC COMPANY, doing business as . GENERAL ELECTRIC SUPPLY COMPANY, a division of GENERAL ELECTRIC COMPANY, (hereinafter called “G.E.”) brought this action against CONTINENTAL CASUALTY COMPANY (hereinafter called “CONTINENTAL”) under Florida Statute § 255.05 F.S.A., the pertinent provisions of which are as follows: “Any person entering into a formal contract with * * * any * * * public authority, for the construction of any public building, or * * * public work * * * shall be required, before...

the trial court entered the summary judgment. Section 255.05, Florida Statutes (1965), is the applicable

...Ray and Claire M. Merrigan, of Caven, Clark, Ray & Tucker, P.A., Jacksonville, for appellant. Robert Aguilar, Orange Park, for appellees. BARFIELD, Judge. Appellant, a prevailing sub-subcontractor in an action on a public construction bond pursuant to Section 255.05, Florida Statutes (1989), challenges the trial court's holding that it is not entitled to an award of attorney fees under sections 627.428 and 627.756, Florida Statutes (1989). We reverse. [1] The Duval County School Board entered into a contract with appellee, E. Vaughan Rivers, Inc. (Rivers), to perform additions and alterations on an elementary school, and Rivers executed a performance and payment bond under section 255.05, Florida Statutes (1989)....

...Prior to 1977, any person contracting for the construction of public buildings was required to execute a bond to pay "all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors in the prosecution of the work provided for in said contract." § 255.05(1), Fla....

...ienor" includes the following: contractors; subcontractors; sub-subcontractors; laborers; materialmen who contract with the owner, a contractor, a subcontractor or a sub-subcontractor; and professional lienors under section 713.03. In 1985, however, section 255.05(1) was renumbered 255.05(1)(a) and subsection (b) was added....

...(2), Fla. Stat. (1961). Under section 627.756, attorney fees are payable in successful suits "brought by owners, subcontractors, laborers, and materialmen" against the surety insurer. Construing this statute to deny fees to all other claimants under section 255.05 would defy logic and reason....

...ments. The trial court's denial of appellant's motion for an award of attorney fees is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. ZEHMER and MINER, JJ., concur. NOTES [1] We note that the recently amended section 255.05(2), Florida Statutes (Supp....

...Gulsby, Inc. v. Miller Construction Company, Inc., of Leesburg, 351 So.2d 396 (Fla. 2d DCA 1977), the same court held that a supplier of labor and materials to several subcontractors was a "sub-sub-sub-subcontractor" and was thus too remote to recover under a section 255.05 public works bond, distinguishing Hey Kiley Man on the ground that it involved an action to foreclose a mechanics' lien, and observing: The Florida Supreme Court wrote in Fulghum v. State, 92 Fla. 662, 109 So. 644 (1926) that the passage of Section 255.05 by the Florida legislature was for the broad general purpose of affording to those supplying labor and materials on public works projects a means of protection in lien of the lien afforded to them on private work as provided by the statutes. Thus, there may very well now exist a lack of parity in coverage and protection in the law between the mechanics' lien law encompassed in Chapter 713, relating to private work projects, and Section 255.05, Florida Statutes, relating to the bonds of contractors constructing public buildings. This might become a concern of future legislation but the same legislature which amended Chapter 713 has not amended Section 255.05....

...rial-men in the amount of $4266.98, and the sum of $193.09 expended by the garnishee to complete the subcontract. Only two of Wheeler’s suppliers and materialmen had brought suit against the garnishee within the one-year time limitation set out in Section 255.05(2): Lakeland Sheet Metal Works for its claim of $792.01, and Harris Roofing & Material Supplies, Inc., for its claim of $2471.49....

...ces, materials or supplies for use in the Hillsborough County construction project. Blount, as principal, and its sureties, Seaboard Surety Company, Aetna Casualty & Surety Company, and Fireman's Fund Insurance Company, executed a payment bond under Section 255.05, Fla.Stat....

...ing balance of $60,974.96. Defendants seek to offset this amount by $39,136.43 in “backcharges.” However, none of Ja Dan’s contracts provide for deduction of “backcharges.” The Court thus declines to deduct this amount. 13.Florida Statutes section 255.05(2) provides that, “[i]n any action brought to enforce a claim against a payment bond under this section, the prevailing party is entitled to recover a reasonable fee for the services of his attorney for trial and appeal or for arbitr...

...FIRE'S MOTION FOR PARTIAL SUMMARY JUDGMENT(Doc. No.37) FILED: November 29, 2006 THEREON it is ORDERED that the motion is GRANTED. Defendant United States Fire Insurance Company ("U.S.Fire") is the surety that issued a Labor and Material Payment Bond pursuant to Fla. Stat. § 255.05 on a construction project known as Palm Grove that was performed on behalf of the City of South Daytona....

...Fire is nevertheless obligated to pay on the bond because Halifax never waived, its right to claim, against the payment bond. Docket 42 at 9. There are two flaws to Halifax's argument. First, Halifax cites no law that supports its argument. Halifax relies on Fla. Stat. § 255.05(2)(b) and (2)(c) for the proposition that U.S....

...Fire must obtain a waiver of Halifax's right to claim against a payment bond to defeat Halifax's claim. The statute, however, does nothing more than provide a form for the waiver of rights "when a person is required to execute a waiver of his or her right to make a claim." Fla. Stat. § 255.05(2)(b) and (2)(c)....

...was a subcontractor of Progress, the general contractor. When South Florida failed to fully pay National for its services, National sought recourse to the bond executed by Progress and Travelers. Such a bond, statutorily required for all state or local public works projects, § 255.05, Fla.Stat....

...ly inapplicable to projects on state-or local-governmentally-owned property. § 713.01(14), Fla.Stat. (1979). (Presently, by 1977 amendment, recovery under the bond is available to those persons qualifying as lienors under the Mechanics’ Lien Law. § 255.05, Fla.Stat....

...However, all parties agree that our case is controlled by the law as it stood in 1977.) In 1977, payment under the contractor’s bond was assured to “all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors . . ..” § 255.05, Fla.Stat....

...Hardrives Co., 167 So.2d 339 (Fla.2d DCA 1964) and Board of Public Instruction, Broward County ex rel. Monmouth Plumbing Supply Co. v. Rood Construction Co., 166 So.2d 701 (Fla.3d DCA 1964), citing federal cases similarly interpreting the Miller Act, 40 U.S.C. *255 § 270a, after which our § 255.05 was patterned....

...On or about September 30, 2011, the Sureties issued Agreement Form G: Payment Bond bearing no. 105650666, 9059819, 24041905, and 82289520 (the “Bond”) on behalf of Tutor Perini, as principal. ¶ 11; attached at [DE 1-5], By its terms, the Bond is governed by Section 255.05, Fla....

...Owner’s Agreement].” Moreover, and in addition to the above, the Court agrees with Plaintiff that Defendants’ attempts to incorporate venue and forum provisions from the Oumer’s Agreement and/or the Subcontract into the Bond is prohibited by Section 255.05(1)(a), Fla....

...Any provision in a payment bond furnished for public work contracts as provided by this subsection which restricts the classes of persons as defined in s. 713.01 protected by the bond or the venue of any proceeding relating to such bond is unenforceable. *1363 § 255.05(1)(a), Fla....

...Renfroe Japan Co., 515 F.Supp.2d 1258, 1266 (M.D.Fla.2007). . Additionally, the Bond was issued nearly two years before the Subcontract was entered into. . See infra regarding the Court’s discussion of whether such incorporation is prohibited by § 255.05(1)(a), Fla....

...In conclusion, we are of the opinion that timely mailing of the' notice to the address called for in the subcontract under which the supplier furnished his materials was sufficient to satisfy the requirement that it be “properly addressed.” Therefore, the supplier substantially complied with the provisions of Section 255.05(2)....

...Judge. Petitioner contends that the circuit court, sitting in its appellate capacity, departed from the essential requirements of law when it determined that the recordation requirement for payment bonds on public construction projects set forth in section 255.05(1), Florida Statutes (1995), had been satisfied by filing such a bond in the public records of the Escambia County School Board, the commissioning governmental entity for a public project involving the construction of a new middle school....

...payment under the payment bond. Petitioner complied with the presuit notice requirements set forth in the bond for claimants not in contractual privity with the general contractor, but did not comply with the presuit notice requirements set forth in section 255.05(2), Florida Statutes (1995), the statutory provision governing claims proce *1325 dures for statutory bonds provided on public construction projects....

...ry bond making the statutory presuit notice requirements inapplicable. The county court concluded that the bond had to be construed as a common law bond because it had not been recorded in the “official” records of Escambia County as required by section 255.05, Florida Statutes (1995). On appeal, the circuit court reversed and directed that summary judgment be entered in favor of respondent, reasoning that petitioner’s failure to comply with the presuit notice requirements set forth in section 255.05(2) precluded it from obtaining payment under the bond. Relying on the definition of “public record” contained in chapter 119 of the Florida Statutes, the circuit court found that filing the bond in the public records maintained by the school board had satisfied the section 255.05(1) requirement that statutory bonds be recorded “in the public records of the county.” Thus, the circuit court concluded that the bond was a statutory rather than a common law bond. In this case, the parties dispute whether the recordation requirement in section 255.05(1) can be satisfied, as the circuit court determined, by filing the bond in the public records of the governmental entity that commissioned the public construction project. There are no reported opinions to guide us in determining what the Legislature precisely meant when it included the recordation requirement language in section 255.05(1); however, we conclude that petitioner’s reading of the statute to require recordation of the bond in the “official records” of the clerk of the court of the county where the improvement is located is the correct one. Section 255.05(1), Florida Statutes (1995), requires a general contractor on a public construction project “to execute, deliver to the public owner, and record in the public records of the county where the improvement is located, a payment and performance bond with a surety insurer authorized to do business in this state as a surety.” (emphasis added). In Martin Paving Co. v. United Pacific Ins. Co., 646 So.2d 268 (Fla. 5th DCA 1994), the Fifth District Court of Appeal determined that section 255.05 had not abolished such a thing as a “common law bond” on a public construction project and, after reviewing the legislative history of the various subsections in section 255.05, held that in order for a surety to require a claimant’s compliance with the notice provisions set forth in section 255.05(2), the bond under which the claim was being made had to have been recorded in the public records of the county where the improvement was located in accordance with subsection section 255.05(1)....

...The statutory provision governing the duties of the clerks of court also states that among the kinds of instruments to be *1326 recorded by the clerk of the court are “[a]ny ... instruments required or authorized by law to be recorded.” § 28.222(3)(h), Fla. Stat. (1995). Section 255.05(1) clearly constitutes a law that requires a specific “instrument”.— such as, a payment bond on a public construction project — to be recorded. It is therefore logical to presume that when the legislature included in section 255.05(1) the phrase “record in the public records of the county where the improvement is located” it meant that the bond must be recorded by the clerk of the eourt in the “official records” of the county where the public improvement is located. Furthermore, the circuit court’s reasoning that the bond can be recorded with the school board makes the latter part of section 255.05(1) superfluous. In addition to its re-cordation requirement, section 255.05(1) also provides that “[a]ny claimant [under the bond] may apply to the governmental entity having charge of the work for copies of the contract and bond and shall thereupon be furnished with a certified copy of the contract and bond...

...Had the Legislature intended for the filing of the contract and bond in the records of the governmental entity having charge of the work to be sufficient to satisfy the recordation requirement stated earlier in the subsection, it would simply not have included the recor-dation requirement. We, therefore, hold that the section 255.05(1) requirement that a payment bond on a public construction contract be recorded “in the public records of the county where the improvement is located” means that the bond be recorded in the “official records” of the county where the improvement is located as maintained by the clerk of the court....

universally employed by the bond industry. See § 255.05(3), Fla. Stat. (relating to public bonds); 17

and its surety on the bond furnished under Section 255.05, Florida Statutes. The thrust of Wiremold’s

...The trial court granted Arch’s summary judgment motion on JD’s Asphalt’s change order claim, then conducted a two-day bench trial on JD’s Asphalt’s retainage claim to determine the factual issue of whether the claim was barred by the statute of limitations set forth in section 255.05 (10) of the Florida Statutes. 1 1 In relevant part, section 255.05(10) provides: An action for recovery of retainage must be instituted against the contractor or the surety within 1 year after the performance of the labor or completion of delivery of materials or supplies; how...

...2d 1059, 1062 (Fla. 4th DCA 2003). After conducting the bench trial, the trial court, upon entering a six- page order containing both detailed findings of fact and conclusions of law, determined that JD’s Asphalt’s retainage claim was barred by section 255.05(10) because it was not brought within one year of JD’s Asphalt’s completion of its subcontracted labor and materials for the project....

...(c) At least 160 days have passed since reaching substantial compliance of the construction services purchased, as defined in the contract, or if not defined in the contract, since reaching beneficial occupancy or use of the project. § 255.05(10)(c), Fla....

...e Circuit Court for Leon County. The issue before us for determination on this appeal is whether the court properly entered the said judgment; or, more precisely, whether, under the evidence before the court, the plaintiff sufficiently complied with Section 255.05(2), Florida Statutes, F.S.A., requiring a materialman to give written notice to the contractor of the delivery of the materials within 90 days “after complete delivery of materials and supplies. * * * ” Sec. 255.05, sub-section (2), the critical statutory provision involved in this appeal, relates to the furnishing of materials in the construction of public buildings, and provides as follows: “Any person supplying labor, material or supplies used direc...

...* * * ” An integral part of their contention, of course, is that the “complete delivery,” as contemplated by the statute, occurred prior to the sale of December 28, 1962, and that the said sale did not serve to extend the time for the giving of the notice contemplated by the said provision of Section 255.05....

...�s written notice of February 18, 1963, was delivered to Clutter “ * * * within ninety days * * * after complete delivery of materials and supplies * * * ” to Clutter’s sub-contractor, Reddick, within the contemplation of these quoted words of Section 255.05, Florida Statutes, F.S.A....

...28, 1962, the pinpointed question before us is whether the “complete delivery of materials and supplies” did not occur until the latter date. To answer the last-stated question we must analyze, interpret, and apply the above-quoted provisions of Section 255.05 relating to a materialman’s written notice to the general contractor....

...egislature in framing and enacting such legislation have done so with the intention that the laws will operate fairly as to all of the economic groups involved, as well as to the general public. Accordingly, in construing the said provisions of Sec. 255.05, we assume that the Legislature in enacting them intended to provide a procedure that would protect the materialman and subcontractor, as well as the general contractor, the owner, and the public....

...subcontractor. It will be noted that the Legislature in this enactment did not use words like “completion of the construction” or of the project, the contract, or the building, as in some statutory provisions. If such words had been used in Sec. 255.05, a materialman, before furnishing materials to a subcontractor, might well have to ascertain the current status of the entire project, lest he lose his right to file an action against the general contractor for such materials....

PATTERSON, Judge. K.T. Transport, Inc. (K.T.) appeals from a final order of the trial court which dismissed with prejudice its complaint because it failed to comply with the pre-suit notice provisions of section 255.05, Florida Statutes (1987)....

...In February 1987, appellee MCI Constructors, Inc. (MCI), as general contractor, entered into a contract with the West Coast Regional Water Supply Authority (the Authority), a public agency, for the improvement of real property under control of the Authority. Pursuant to section 255.05, MCI, as principal, and appellee National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union), as surety, executed and delivered a payment bond for the project....

...The lower court granted the motion with prejudice. The appellees urge that our decision in W.G. Mills, Inc. v. M & MA Corp., 465 *42 So.2d 1388 (Fla. 2d DCA 1985), controls this case. We determined in Mills that a materials supplier was precluded from recovery by reason of noncompliance with section 255.05(2)....

...County v. Fasano, Inc., 417 So.2d 1063 (Fla. 4th DCA 1982). In Fasano the court held that a material supplier who had failed to state its intent to rely on the bond in its notice to the contractor had substantially complied with the requirements of section 255.05(2). The reason for this rule is that there is no other legal consequence of serving notice on the prime contractor within forty-five days of commencement of work on a public project other than to secure the rights afforded by section 255.05(2)....

...contracted with Southeastern Municipal Supply Co. (Southeastern) to furnish materials for the project. After Southeastern began furnishing materials to R.L.P. for the job, Southeastern furnished Wilson and the ap-pellee bonding companies with a preliminary notice pursuant to section 255.05, Florida Statutes (1987)....

...PCL Civil Constructors, Inc., as general contractor, entered into a contract with the Port Everglades Authority, as owner, to build a complex to be called the Southport Bulkheads Dredging and Infrastructure. Because the owner is a public entity, the general contractor was required to, and did, post bond in compliance with section 255.05, Florida Statutes (1989)....

...The appellant was a materialman-subcon-tractor on various Broward County street projects. The prime contractor filed bankruptcy proceedings. Normally, appellant would simply recover the sums due from the contractor by claiming against the surety under section 255.05, Florida Statutes (1985)....

...Appellant sued the County seeking recovery out of funds owed by the County to the contractor or its trustee in bankruptcy. Appellant alleged an equitable lien and asserted various other equitable theories in support of its claim. The trial court dis *1318 missed the complaint with prejudice on the undisputed facts. Section 255.05(l)(a), Florida Statutes (1985), provides, in part: 255.05 Bond of contractor constructing public buildings; form; action by materialmen.— (l)(a) Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the constr...

...In reversing, however, the court went on to recognize that if the contractor could prove a direct contract with the City, he would be entitled to an equitable lien on museum funds. Appellant further notes that liability has been imposed on a public body where it failed to require that the bonding contemplated by section 255.05 be obtained....

...appeals an adverse summary judgment in its action against a *127 payment bond. We conclude that the action is not time-barred, and remand for further proceedings. The question presented is whether the appellee surety may rely on the shortened statute of limitations for a bond issued under section 255.05, Florida Statutes (1997), where the bond was not filed in the public records as required by the applicable statute....

...We conclude that there must be strict compliance with the statute, and that the surety cannot avail itself of the shortened limitation period. The Miami-Dade County School Board entered into a contract with a general contractor, Pass International, Inc., for construction of improvements at a school. Under section 255.05, Florida Statutes (1997), the general contractor was required “to execute, deliver to the public owner, and record in the public records of the county where the improvement is located, a payment and performance bond with a surety....” Id. § 255.05(1)(a)....

...In November 1997 the surety issued the bond, but it was not recorded in the public records. 1 Apac was a subcontractor on the job and was not paid by the general contractor. Apac brought suit against the surety. The surety moved for summary judgment because the lawsuit was not filed within the one-year period provided by subsection 255.05(2), Florida Statutes (1997). Apac opposed the motion, arguing that the surety had failed to comply strictly with section 255.05, because the bond was not filed in the public records....

...American Home Assurance Co., 815 So.2d 715 (Fla. 5th DCA 2002). In our view, the requirement to file the bond in the public records is an important component of the statute and must be strictly enforced. If the surety wants to take advantage of the shorter statute of limitations provided in subsection 255.05(2), the surety must see to it that filing takes place in accordance with the requirements of the statute....

case, supra, involved the interpretation of Section 255.05, Florida Statutes, F.S.A., and the Gibbs case

action is governed by Florida state law. Fla. Stat. § 255.05 (2007). Accordingly, the Court’s analysis begins

...Analysis The overarching issue in this matter is the extent to which Hartford, as a surety, is liable pursuant to a performance bond issued on a construction contract executed by Marathon and Intrastate. The performance bond at the center of the above-styled action is governed by Florida state law. FLA. STAT. § 255.05 (2007)....

...Accordingly, the Court's analysis begins with a brief synopsis of the relevant Florida law on performance bonds. There is a statutory requirement in Florida that all public construction projects over $200,000 be secured by a performance bond. FLA. STAT. § 255.05 (2007)....

...7 Change Order. Pursuant to Florida statute, the physical bond document for the construction of a public building must be delivered to the public owner and "record[ed] in the public records of the county where the improvement is located." FLA. STAT. § 255.05(1)(a) (2007)....

...t was a cardinal change to the underlying construction contract. Further, the Court notes that Intrastate maintained adequate bonding for the Area 3 Project in accordance with both the underlying construction contract and Florida statute. FLA. STAT. § 255.05(1)(c)(1) (2007); (Underlying Construction Contract ¶ 16.1.1, DE #35-2, at 35). In addition, pursuant to Florida statute, Marathon could not require Intrastate to secure the bonding for the Area 7 Project from Hartford specifically. FLA. STAT. § 255.05(1)(a) (2007) ("A public entity may not require a contractor to secure a surety bond under this section from a specific agent or bonding company.")....

...The record does not contain any evidence that Hartford executed any bond document for the Area 7 Change Order, that any such bond was recorded, or that Intrastate submitted an additional Certification of Contractor's Insurance and Bonding to Marathon for the Area 7 Change Order. See FLA. STAT. § 255.05(1)(a) (2007)....

...Duval County, 45 Fla. 472 , 34 So. 245 ; Duval County v. Charleston Lumber & Mfg. Co., 45 Fla. 256 , 33 So. 531 , 60 L.R.A. 549 . The plaintiff does not seek by this suit to enforce its claim against the surety, if any, on the performance bond required by Section 255.05....

...nnot acquire a mechanic’s lien under Chapters 84-86, Florida Statutes, F.S.A. State v. Clutter Construction Corp., 132 So.2d 21 (Fla.App.1961), affirmed by the Florida Supreme Court in Clutter Construction Corp. v. State, 139 So.2d 426 (Fla.1962). Section 255.05, Florida Statutes, F.S.A., clearly affords the appellee an adequate remedy at law which would not have involved any expense to the appellant county, and under the circumstances relief in equity of the nature here sought is not available. For the reasons stated, the decree appealed is Reversed. WIGGINTON and CARROLL, DONALD K., JJ., concur. . Section 255.05, Florida Statutes, F.S.A., provides as follows: “ * * * Any person entering into a formal contract with ⅜ * * guy-county of said state, ⅜ * ⅞ for the construction of any public building, * * * sRall be required, before commenci...

...Miami Arena project. Homestead was a subcontractor on the project for the general contractor, Linbeck Construction Corporation (Linbeck). Appellee, as surety, posted a payment bond for Linbeck, as principal, for work done on the project, pursuant to section 255.05, Florida Statutes (1989)....

...Appellant completed the construction work and brought suit against appellee, pursuant to the payment bond, for uncompensated work. After appellee filed its answer and discovery took place, appellee moved for summary judgment based on appellant's failure to comply with the forty-five (45) day notice requirement of section 255.05(2), Florida Statutes....

..." and exempt from the statutory forty-five (45) day notice requirement. Appellee asserts that the trial court properly entered summary judgment because appellant was not a laborer and did not comply with the forty-five (45) day notice requirement of section 255.05(2), Florida Statutes. Subsection (2) of section 255.05, Florida Statutes, provides in part: A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish labor,...

...It is uncontroverted that appellant failed to give the required statutory notice. The definition of "laborer" contained in the Mechanics' Lien Law is instructive in determining whether appellant was a "laborer" and thus, exempt from the notice requirement of section 255.05(2), Florida Statutes....

...Here, appellant's contract with Homestead bound appellant to perform part of Homestead's subcontract with Linbeck, the general contractor on the project. There being no genuine issue of material fact, appellant's claim that it was a laborer, and thus, exempt from the statutory notice requirement, fails as a matter of law. §§ 255.05(2), 713.01(9), Fla....

PER CURIAM. This case began as an action by a ma-terialman against a contractor and his surety under a public works construction contract and pursuant to § 255.05, F.S., 1967, F.S.A....

American Insurance Company (American), pursuant to section 255.05, Florida Statutes (1989), issued a labor and

arising out of the Florida Construction Lien Law, section 255.05, Florida Statutes, and the federal Miller Act

...Defendant corporation was surety on the general contractor’s performance and payment bond. The complaint asserted that plaintiff had not been compensated in accordance with his contract for materials and demanded judgment against defendant surety, citing section 255.05, Florida Statutes, as authority for its claim....

...Legislature in the Spring, 1959, session, which became effective August 4, 1959. Defendant, having perfected this appeal, raises but one question; it argues that plaintiff, by not filing suit within one year, is barred by the statutory amendment to section 255.05, Florida Statutes, from recovery, and his claim is extinguished....

...The Brooks-Fisher Insulating Company, 140 So.2d 613 , in which this court stated in the last paragraph of the opinion written by Judge Kanner: "Rules of statutory construction support the position that the one year limitation imposed through the 1959 legislative amendment upon section 255.05, Florida Statutes, F.S.A., should not yield a retrospective interpretation....

...Southern Steel appeals a final judgment granting summary judgment in favor of Reliance and Lee, and dismissing its complaint against American and Hobbs for failure to state a cause of action. We consider first the claim against Hobbs and American. Section 255.05, Florida Statutes (1987), requires a contractor's surety to issue a payment bond to provide security for materialmen....

...Over $277,000 had been paid directly to Southern Steel when Hobbs ceased making payments. The trial court in its final judgment found no privity between Hobbs and Southern Steel and that Southern Steel failed to give timely notice of claim as required by section 255.05. The complaint was dismissed with prejudice. Southern Steel's allegations of privity, based on the joint check agreement and other conduct of Hobbs pursuant to the agreement, along with allegations of notice by letter in satisfaction of section 255.05, are sufficient to withstand a motion to dismiss....

...y notice is required, contemplates an express or implied assumption by the owner of a contractual obligation to pay for the subcontractor's services. Foley Lumber Co. v. Koester, 61 So.2d 634 (Fla. 1952). We agree that the same standard applies in a section 255.05 bond claim on allegations that the contractor expressly or impliedly assumed the subcontractor's obligation to pay a supplier....

...ECE purchased the tanks for the construction of a waste water treatment plant. The construction was a public work for the City of Auburndale. The complaint alleged that ECE’s contract for this public work involved an amount less than $200,000, and that the City had retained funds in excess of $10,000 pursuant to section 255.05, Florida Statutes (1985)....

...Count I of Buffalo Tank’s complaint alleged an account stated against ECE. Count II sought an equitable lien against the funds held by the City. The City moved to dismiss the complaint on several grounds, including the fact that Buffalo Tank had not complied with the notice requirements of section 255.05(2), Florida Statutes (1985). The trial court granted the City’s motion to dismiss with prejudice for failure to provide this statutory notice. The claim against ECE remains pending. Section 255.05(2), Florida Statutes (1985), requires a claimant “who is not in privity with the contractor to furnish a *1039 notice to the contractor and to the surety within certain time limits to perfect a claim against the surety bond.” (Emph...

...ply has no application to a claimant who is in privity with the contractor. In this case, there is no practical need or legal requirement for Buffalo Tank to provide a notice to ECE when ECE has already received the invoice and has failed to pay it. Section 255.05(2) is designed to provide the contractor and the surety with notice from an unpaid claimant who provided labor, materials, or supplies to a subcontractor and whose existence could easily be unknown to the contractor or the surety. 3 S. Rakusin, Florida Mechanics’ Lien Manual § 29.04(D)(1) (1974). Section 255.05(2) does not require any notice to the City itself....

...eir respective liquidation proceedings). Buffalo Tank argues that it is not required to allege an inadequate remedy at law because the City must obey state regulations which establish procedures for the payment of claimants from such retained funds. § 255.05(l)(b), Fla.Stat....

Ms. Pamela K. Akin Clearwater City Attorney Post Office Box 4748 Clearwater, Florida 34618-4748 Dear Ms. Akin: You ask substantially the following question: Does section 255.05 , Florida Statutes, require a contractor who enters into a contract with the city to install and connect underground natural gas service lines to procure a payment and performance bond when the contract is in excess of $200,000 but the cost of each single service line installation and connection is less than $200,000? In sum: Section 255.05 , Florida Statutes, requires a contractor who enters into a contract with the city to install and connect underground natural gas service lines to procure a payment and performance bond when the contract is in excess of $200,000 even though the cost of each service line installation and connection is less than $200,000. Section 255.05 (1), Florida Statutes, provides in pertinent part: Any person entering into a formal contract with ....

...a whole. After each installation, the contractor bills the city for its services. You ask whether each installation may be considered a separate contract that is less than $200,000 such that a payment and performance bond would not be required under section 255.05 , Florida Statutes. Section 255.05 , Florida Statutes, prescribes the bond required of contractors constructing public buildings or public works....

...,000. According to your letter, the city has entered into a single contract with a contractor for an amount in excess of $200,000. The statute would, therefore, appear to require the contractor to post such a payment and performance bond. Nothing in section 255.05 , Florida Statutes, authorizes a contract to be broken down into segments so as to avoid the bond requirements specified therein. Where the Legislature has directed how a thing shall be done, it is, in effect, a prohibition against its being done in any other way. 4 Accordingly, I am of the opinion that section 255.05 , Florida Statutes, requires a contractor who enters into a contract with the city to install and connect underground natural gas service lines to procure a payment and performance bond when the contract is in excess of $200,000 even t...

the general contractor or his surety. Fla.Stat. § 255.05, F.S.A. This meant,one year from the date of the

STREITFELD, JEFFREY E., Associate Judge. The School Board of Broward County (the School Board) appeals from two Final Judgments entered in these consolidated cases that impress an equitable lien upon funds retained pursuant to section 255.05, Florida Statutes (1998)....

...ard chose to terminate the contract with Multi-Air Flow. The School Board retained the sum of $74,600 from the contract amount because Multi-Air Flow did not provide releases indicating proof of payments to subcontractors. In March 1998, pursuant to section 255.05, Florida Statutes, Trane made a formal demand for $42,129.51, the sum that remained unpaid for materials delivered to the job site....

...§ 185 (a), to enforce a collective bargaining agreement between the plaintiff union and the defendant Clifford Ragsdale, Inc., d/b/a Commercial Electric Company. The plaintiffs seek to have this court take pendent jurisdiction over their state claims against the three surety defendants, who pursuant to Fla.Stat. § 255.05, issued performance and payment bonds *1369 to the general contractors of certain public works projects....

...ver the claims against the sureties. The court is further persuaded that dynamic principles of federalism and comity dictate against exercising pendent jurisdiction over these claims. The defendants point out that no Florida court has ever construed § 255.05 to authorize a suit by employees of a subcontractor to recover payment from a bond issued to a general contractor. Also, no state court, in construing § 255.05, has passed on the question of whether payment of fringe benefits, much less payment of union dues, is included in the term, “payment of wages in full.” These substantive issues of state law would have to be determined by this court if pendent jurisdiction was exercised....

...Fasano, Inc., 417 So.2d 1063 (Fla. 4th DCA 1982), our sister court held that a material supplier who completely failed to mention anything about intent to rely on the bond in its notice, substantially complied with a similarly worded requirement in section 255.05(2), Florida Statutes (1977)....

receiving from the contractor the bond required by section 255.05, Florida Statutes (1951). The contractor defaulted

contract was a statutory bond given pursuant to Section 255.05, Florida Statutes (1975), or a more broadly

...underwritten by a surety. In compliance with this mandate, the General Contractor retained the Surety. In conformance with the public bond statute, the bond underwritten by the Surety refrained from restricting the venue of lawsuits based upon it. See § 255.05(1)(e), Fla....

...2006) (“This issue involves a question of statutory interpretation and thus is subject to de novo review.”). The public bond statute provides that an action against a surety on a public payment bond may be brought in any county authorized by Chapter 47. § 255.05(5) (“In addition to the provisions of chapter 47, any action authorized under this section may be brought in the county in which the public building or public work is being constructed or repaired.”). It further prohibits any provision in a payment bond that restricts the venue of any proceeding relating to such bond. § 255.05(1)(e) (“Any provision in a payment bond issued on or after October 1, 2012, furnished for public work contracts as provided by this subsection ....

...s based on the surety bond, the venue selection clause in the subcontract will control the cause of action only if it is read into the surety bond. Upon being read into the surety bond, however, the venue selection clause becomes void pursuant to section 255.05(1)(e), which expressly prohibits any provision in a surety bond that restricts venue....

...Appellant sued appellee to recover a sum of money allegedly owed to appellant for labor and materials furnished by appellant for construction of a public building in Ft. Lauderdale, Florida. Appellee is the surety on a performance bond furnished pursuant to Section 255.05, Florida Statutes (1975)....

...of action but adding therein a new date for services rendered by appellant as “the last stage of work to complete the project.” Apparently this new allegation in the new suit made the claim timely by bringing it within the one year limitation of Section 255.05(2), Florida Statutes (1975)....

include a request for attorney’s fees pursuant to section 255.05, Florida Statutes. On *1377September 10, 1996

PER CURIAM. Affirmed. See: § 255.05(2), Fla.Stat. 1965, F.S.A.; Schneider v. Cohan, Fla.1955, 82 So

...Pinewood contracted with Minority Systems, Inc. (M.S.I.), a subcontractor, to deliver plumbing fixtures for a government project. After Pinewood delivered, M.S.I. failed to pay. Pinewood brought suit directly against the prime contractor, Centen *217 nial Construction, Inc. (Centennial), under section 255.05, Florida Statutes (1983). Pinewood concedes that it failed to timely notice Centennial pursuant to section 255.-05(2). 1 First, Pinewood contends that it is in privity with Centennial and therefore the notice requirements of section 255.05(2) are inapplicable....

...y to owner, nor by the owner directing placement of the hydrant). Second, Pinewood argues that even if it is foreclosed from a breach of contract claim because it failed to give timely notice to Centennial, it is still entitled to recover in equity. Section 255.05 provides for an adequate remedy at law....

...t is against property, materialman shows misrepresentation or fraud; or b) if it is against unexpended construction funds held in trust, material-man demonstrates “a right of a special nature”). Accordingly, the order under review is Affirmed. . Section 255.05(2), Florida Statutes (1983) reads: (2) A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish labo...

works bond furnished by a contractor under Section 255.05, Fla.Stats. F.S.A.1 In the course of our opinion

(floating islands) a public work pursuant to section 255.05, Florida Statutes? You indicate that Citrus

the surety on the performance bond required by § 255.05, Fla.Stat., F.S.A.1 *22The original action was

the one year statute of limitations under Section 255.-05(2), Florida Statutes, 1963, F.S.A. Motions

...Reliance filed a motion for a new trial, and the motion for a new trial was denied. Pro-Tech also filed a motion for attorney’s fees and costs. After hearing arguments for Pro-Tech’s attorney’s fees, the trial court awarded Pro-Tech attorney’s fees, pursuant to section 255.05, Florida Statutes....

...back charge. The judgment in favor of Pro-Tech is reversed, and the case is remanded for a new trial in which the owner’s representative should be allowed to testify as to its damages. Because Pro-Tech is no longer the prevailing party pursuant to section 255.05(2)(a)2, Florida Statutes, Pro-Tech’s award of attorney’s fees is reversed. REVERSED. SAWAYA, C.J., and PETERSON, J„ concur. . Section 255.05(2)(a),2, Florida Statutes provides: In any action brought to enforce a claim against a payment bond under this section, the prevailing party is entitled to recover a reasonable fee for the services of his or her attorney for trial and...

...This dispute arose from a commercial transaction involving the State of Florida, which contracted with Piling to remove a bridge over Indian Key Channel in Monroe County, Florida. Piling contracted with Hartford to provide an indemnity bond as required by section 255.05(1) of the Florida Statutes, 2 a part of the “Little Miller Act” (“the Act”), which establishes bonding requirements for contractors who do construction work on public projects in Florida....

...as of December 1, 1986. Acting under Piling’s agreement with Offshore, Bordelon requested payment from Piling. 3 Piling refused to pay Bordelon, after being advised by its counsel that Bor-delon had failed to comply with the notice requirements of section 255.05(2) 4 of the Act....

...l compliance” adequate for notice purposes “where it is conceded that the only possible legal consequence of putting the contractor and surety on written notice of ... participation in the project was to secure ... rights under the provisions of section 255.05(2)”)....

...713.01 whose claims derive directly or indirectly from the prosecution of the work provided for in the contract ... The claimant shall have a right of action against the contractor and surety for the amount due him. Such action shall not involve the public authority in any expense.... Fla.Stat.Ann. § 255.05(1) (West 1975 & Supp....

...he performance of the labor or delivery of the materials or supplies and of the nonpayment. No action for the labor, materials, or supplies may be instituted against the contractor or the surety unless both notices have been given. ... Fla.Stat.Ann. § 255.05(2) (West 1975 & Supp....

...2 This dispute arose from a commercial transaction involving the State of Florida, which contracted with Piling to remove a bridge over Indian Key Channel in Monroe County, Florida. Piling contracted with Hartford to provide an indemnity bond as required by section 255.05(1) of the Florida Statutes, 2 a part of the "Little Miller Act" ("the Act"), which establishes bonding requirements for contractors who do construction work on public projects in Florida....

...00 as of December 1, 1986. Acting under Piling's agreement with Offshore, Bordelon requested payment from Piling. 3 Piling refused to pay Bordelon, after being advised by its counsel that Bordelon had failed to comply with the notice requirements of section 255.05(2) 4 of the Act....

...Fasano, Inc., 417 So.2d 1063, 1066 (Fla.Dist.Ct.App.1982) (finding "substantial compliance" adequate for notice purposes "where it is conceded that the only possible legal consequence of putting the contractor and surety on written notice of ... participation in the project was to secure ... rights under the provisions of section 255.05(2)")....

...713.01 whose claims derive directly or indirectly from the prosecution of the work provided for in the contract ... The claimant shall have a right of action against the contractor and surety for the amount due him. Such action shall not involve the public authority in any expense Fla.Stat.Ann. Sec. 255.05(1) (West 1975 & Supp.1986) (amended 1988)....

...he performance of the labor or delivery of the materials or supplies and of the nonpayment. No action for the labor, materials, or supplies may be instituted against the contractor or the surety unless both notices have been given Fla.Stat.Ann. Sec. 255.05(2) (West 1975 & Supp.1989)....

ERVIN, Judge. Does the failure of a performance bond to include specific reference to the notice provisions and time limitations of Section 255.05(2), Florida Statutes (1975), even though the bond required the contractor to comply with the provisions of Section 255.05, make the bond a common law, rather than a statutory bond? We conclude it does not....

...ond as well as the limitations periods stated in the statute, but we think such language must be restricted to the facts in those cases which are distinguishable from those here. In both Holly Hill and Miller the performance bonds failed to refer to Section 255.05, failed to contain any limitation with respect to the time within which a suit on the bond could be commenced and, most importantly, granted broader coverage than the minimum required by the statute....

...inimum obligation placed upon the principal and his surety by statute has been expanded by the bond. See Fulghum v. State, 92 Fla. 662 , 109 So. 644 (1926). Here the bond, while containing no reference to the statutory limitation, specifically cited Section 255.05....

....” 1 If any ambiguity arguably existed in the bond, 2 it could hardly be construed against the surety which did not prepare the bond. Appellant Consolidated Pipe and Supply Co., Inc., a supplier to a subcontractor, brought suit in the name of the state for its use and benefit as required by Section 255.05(1)....

...Since the complaint failed to allege compliance with the one-year time limitation of Section 255.-05(2), the lower court’s order granting the motion to dismiss is affirmed. McCORD, Acting C. J., and LARRY G. SMITH, J., concur. . Compare the above language with Section 255.05(1), stating that “such contractor shall promptly make payments to all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors in the prosecution of the work provided for in said contract; . . . Section 255.05, Florida Statutes (1975), subsequent to the execution of the bond, was amended by Ch. 77-81, § 1, Laws of Florida, by providing a suggested bond form, which, like the present bond, makes specific reference to Section 255.05, but does not incorporate the statute’s notice and time provisions, which remain unchanged.

by summary judgment. Therefore, I dissent. . § 255.05(2), Fla.Stat. (1981).

...sted under 29 U.S.C. Section 1002 , Sub. 5, 29 U.S.C. Section 185 , 29 U.S.C. Section 1132 (a)(3), and 29 U.S.C. Section 1145 . Jurisdiction is asserted herein over De-Bartolo, the contractor, pursuant to pendent jurisdiction claimed under Fla.Stat. 255.05 (The Florida Little Miller Act), and Fla.Stat....

...The materialman, Gory Associated Industries, Inc., allegedly delivered certain roofing materials to the construction site, valued at $22,134.34. Gory claimed it had received payment of $11,187.13 for these materials, so the instant suit was filed pursuant to Section 255.05, Florida Statutes (1975), seeking recovery of the balance due of $10,947.21....

...d out of the fund deposited in the registry of the court by Bradford; that Bradford be exonerated and discharged from liability to the appellant and the other defendants. Crane Company brought its counterclaim and cross-claim under the provisions of section 255.05, Fla.Stat., F.S.A....

...S.A.], as clearly appears in the allegations in the Complaint and from the statute above cited.” The court below granted the motion holding that the cause of action against the defendants was a “liability created by statute,” Florida Statutes, § 255.05, F.S.A., and, therefore, governed by the provisions of the Florida Statutes, § 95.11(5) (a), F.S.A., which provides in part as follows: *888 “(5) Within three years.— “(a) An action upon a liability created by statute, other than a p...

PEARSON, Judge. The plaintiff brought an action on a statutory public works bond, required under Section 255.05, Fla.Stat., F.S.A., against the surety....

performance bond on this project in accordance with section 255.05, Florida Statutes (1981). Northwestern’s contract

...idered a part of the subcontract, the chancellor erred in awarding payment to Free and Hardrives in excess of the total yardage measured by the resident engineer. 3) The chancellor erred in awarding to Hardrives damages in excess of those allowed by Section 255.05, Florida Statutes, F.S.A....

...Kanning of Osborne, McNatt, Shaw, O'Hara, Brown & Obringer, P.A., Jacksonville, for appellees. WOLF, Judge. The Haskell Company (Haskell), appellant, raises four issues on appeal only one of which has merit. We will briefly discuss two issues: (1) Whether the trial court erroneously interpreted the 45-day notice provision in section 255.05(2), Florida Statutes, as requiring the appellant, Haskell (sub-subcontractor), to give notice to the appellee, Peeples Construction Company, Inc....

...on the project, rather than 45 days from the date Haskell was due to receive payment; and (2) whether the court erred in its calculation of the amount of damages for conversion based upon appellant's wrongful removal of equipment from the job site. Section 255.05(2), Florida Statutes, provides that "[a] claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish labo...

...WEBSTER and MICKLE, JJ., concur. NOTES [1] As supplemental authority, appellant provided us with the case of Martin Paving Co. v. United Pacific Ins. Co., 646 So.2d 268 (Fla. 5th DCA 1994). It is unnecessary for us to address the wisdom of the fifth district's determination that § 255.05, Fla....

...Appellant, a supplier to a subcontractor on a public-works contract, suffered dismissal with prejudice of its suit against the principal and the surety of the contract bond because of the plaintiff’s failure to comply with the notice requirements and time limitations of Fla.Stat. § 255.05(2) (1973)....

...However, its argument in support of its contention misses the mark. The issue here, simply stated, is whether the bond in this case was a common-law performance bond and thus, under the holding of the United Bonding case, supra, not subject to the notice requirements and time limitations set out in Fla. Stat. § 255.05 (2) (1973), or whether the bond was a statutory bond to which Fla. Stat. § 255.05 (2) (1973) applied....

...4 To do so, they alleged that these defendants were each an “employer” as defined in 29 U.S.C. § 1002 (5) (1982). Appellants also sued Balboa, the general contractors, and the general contractors' sureties under the Florida law governing bonds on public projects. See Fla.Stat. *1569 Ann. § 255.05 (West Supp.1987)....

company was surety for the project pursuant to Section 255.05, Fla.Stats., F.S.A. In July, August and September

...Appellant originally filed a one count complaint against the general contractor and its surety under a public payment and performance bond. In its initial complaint, appellant asserted that it was a “laborer” and therefore exempt from the preliminary notices requested by section 255.05(2)(a), Florida Statutes (1997)....

...nstruction of Broward County, Florida, for the construction of the Margate Junior High School and that on or about that same date Thompson subcontracted the electrical work for the construction to Anderson Electric, Inc. Pursuant to Florida Statutes § 255.05, F.S.A., both defendants Thompson and Anderson posted the required bonds with sureties....

...ry was sought only against Marvin in his representative capacity, his motipn to dismiss should be denied. Use-plaintiff’s right of action against the contractor and his surety and against the surety of the subcontractor stems from Florida Statutes § 255.05, F.S.A....

...quiring the posting of bonds by the contractor and subcontractor, against which these materialmen may recover. This section was patterned after the Federal Miller Act, 40 U.S.C. § 270 , and it has been held that the construction of Florida Statutes § 255.05, F.S.A....

...297 , 120 So. 556 (1929). It is the contention of the plaintiff that delivery to the subcontractor in good faith and under a reasonable belief that the material was intended for ultimate use under the prime contract is sufficient to state a claim under § 255.05....

...ery under the Miller Act. As a matter of fact, in Endebrock-White, the Court points out that the materials were not actually incorporated. However, it is clear in Florida that actual incorporation is a prerequisite to recovery under Florida Statutes § 255.05, F.S.A., and that proof of delivery of the materials to the job-site is merely a presumption of incorporation which may be rebutted by the defendant....

comply with the statutory notice requirements of section 255.05(2), Florida Statutes (1989). We find that the

...terials or supplies for use in the Hillsborough County construction project. Blount, as principal, and its sureties, Seaboard Surety Company, Aet-na Casualty & Surety Company, and Fireman’s Fund Insurance Company, executed a payment bond under Section 255.05, Fla.Stat....

...Ginn Construction Co., Inc., the general contractor responsible for construction of the Fort Pierce City Hall. We affirm the trial court’s final summary judgment, which was based on the court’s determination the City’s suit was barred by the applicable one year statute of limitations contained in section 255.05(2), Florida Statutes (1989)....

...Safeco Ins. Co., 434 So.2d 38 (Fla. 2d DCA 1983); and Board of County Commissioners of Polk County v. Aetna Casualty & Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992), remain good law and apply to the instant case. Regarding the 1993 amendment to section 255.05(2), in the absence of any express, clear or manifest legislative intent to apply section 255.05(2), Florida Statutes (1993) retroactively, the amended statute does not apply to causes of action occurring prior to its effective date....

...ed to the final sums due for the project. Point two concerns the attorney’s fee award to Ward. Since the parties made no provision in their agreement for attorney’s fees, Ward’s entitlement to an attorney’s fee must be found in the statutes. Section 255.05(2), Florida Statutes (1983) 4 requires that an action instituted against the contractor or the surety on the bond must be filed within one year “from the *619 performance of the labor or completion of delivery of the materials or supplies.” 5 In District School Board of DeSoto County v. Safeco Insurance Company, 434 So.2d 38, 39 (Fla. 2d DCA 1983), the court said: Under the natural meaning of “performance of the labor” in section 255.05(2), Florida Statutes ..., a certificate of substantial completion and the acceptance of a constructed building by the owner begins the one-year statute of limitations period provided by section 255.05(2) for actions against the surety on the bond....

...The final approved written change order was dated April 9, 1982, and received by Northwestern on April 12, 1982. The written change order called for an increase of $21,807.60 in the contract price. . The contractor's affidavit was a prerequisite to eligibility to receive the final funds due from the county. . Section 255.05(2), Fla.Stat....

...ractors. Upon completion of the work by McDonald on October 7, 1980, Roberts refused to pay $23,721.81, the amount claimed by McDonald to be due. On March 3,1981, McDonald filed a complaint against Roberts seeking recovery under the bond pursuant to section 255.05, Florida Statutes (1979). The portion of the bond which concerns us here states: It is stipulated, understood and agreed that the payment bond provisions hereof are statutory in nature, strictly limited to the provisions of section 255.05, Florida Statutes, and all third parties claiming under the payment bond provisions hereof are limited to all procedures and requirements of section 255.05, Florida Statutes.....

PER CURIAM. The trial court granted summary judgment for appellees Ritch and United States Fidelity and Guaranty Corporation on the ground that their performance and payment bond was a statutory bond pursuant to Section 255.05, Florida Statutes (1977), and that appellant, plaintiff below, filed his complaint alleging nonpayment for materials after the statutory one year limitation period on actions had expired. We hold that even though this bond contained provisions not required by Section 255.05, the bond must be considered statutory and not common law, which would be subject to a longer limitation period, because the bond *724 did not expand the payment provisions beyond those stated in Section 255.05....

...After a trial the court awarded Knight all of its claimed damages. NOTICE D.I.C. and Hartford claim that Knight’s notice of October 18 was untimely because it was more than forty-five days from the first day of performance on its contract with Woven Wire as required by § 255.05(2), Florida Statutes which provides: *979 A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials or supplies shall, within ⅛5 days after beginning to furnish labor...

...the performance of the labor or completion of delivery of the materials or supplies. (Emphasis supplied). The requirement that notice be given within the specified forty-five day period is a condition precedent to the maintenance of an action under § 255.05....

...Knight commenced work on the cafeteria portion of the project. Knight asserts, however, that the forty-five day period began to run no earlier than September 23, 1986 when Woven Wire gave it a purchase order on Building 10. We must determine whether § 255.05 contemplates the 45 day period to commence running when any work is done by a claimant on the project, or whether it permits the notice time clock to start over if a legitimate second contract is made....

...n September, and cites numerous cases decided under the federal Miller Act that have recognized that more than one contract may be used to measure notice requirements. 1 See also Arabi Homes, Inc. v. Bachrach, 446 So.2d 725 (Fla. 2d DCA 1984). Since § 255.05 was patterned after the Miller Act, we agree those decisions are persuasive authority to support the trial court’s decision here. See City of Fort Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1964). Section 255.05 speaks of “the prosecution of the work”....

...Waters, 384 So.2d 61 (Fla. 1st DCA 1980), relied upon by the appellants. The court in Waters held that an oral modification of a written contract after 70% of the work on the contract had been performed did not start a new forty-five day period for purposes of Section 255.05....

...It based the award on Knight’s accounting which represented the amounts it charged on the work orders, and included charges for the delays. The appellants argue that the court erred in awarding the additional charges because recovery pursuant to Section 255.05 is limited to the amount contracted for in the prosecution of work. In W.S.A. Inc. v. Stratton, 680 F.Supp. 375 (S.D.Fla.1988), the court examined the language of Section 255.05 and of the payment bond to determine whether damages stemming from a delay in a construction project were recoverable. It stated that Section 255.05 only held a surety liable for “labor, materials, and supplies”....

...In Travelers, the court stated that a *981 surety is bound by any terms of its bond that extend beyond the statutory requirements. The payment bond in the instant case contains the following “Condition of Bond”: “1. Promptly makes payments to all claimants, as defined in 255.05(1), Florida Statutes, supplying Principal with labor, materials, or supplies, used directly by Principal in the prosecution of the work provided for in the contract ......

...abor, implements, machinery, equipment, tools, apparatus, materials, means of transportation, and performance of all work shown on the drawings, and described in the specifications The language of the contract payment bond is no broader than that of § 255.05....

WENTWORTH, Senior Judge. This is an appeal from a summary judgment for appellees holding that section 255.05, Florida Statutes, requires that notice of nonpayment be given within 90 days from last physical delivery of rental equipment, rather than from last use of the rental equipment, for purposes of recovery under the public construction payment bond....

...We reverse and certify conflict with Moretrench American Corporation v. Taylor Woodrow Construction Corporation, 565 So.2d 861 (Fla. 2d DCA 1990). In November, 1988, appellee Taylor Woodrow contracted with the City of Jacksonville to build the Jacksonville Pre-Trial Detention Facility. Pursuant to section 255.05, Florida Statutes, Woodrow posted a statutory bond issued by appellee American Home Assurance Company....

...Ross then entered into a contract with appellant Burke Company by which Burke agreed to rent to Ross certain equipment to be used by Ross in performing under its agreements with Taylor Woodrow. On December 22, 1988, within 45 days of commencing performance under its contract (as required under section 255.05(2), Florida Statutes), Burke furnished Woodrow with notice of intent to look to the bond for payment....

...The court explained the basis for its decision: The Second District Court of Appeal has recently addressed a similar situation involving rental equipment in Moretrench American Corp. v. Taylor Woodrow Construction Corp., 565 So.2d 861 (Fla. 2d DCA 1990) and found that the “complete delivery” language of § 255.05(2) meant the last day the equipment was physically delivered to the job site and declined to adopt the appellant’s contention that the 90-day period did not begin until the last day of the availability for use of the equipment on the job....

...Streeter went on to state, however, that where statutory provisions are “even slightly ambiguous, an examination of legislative history and statutory construction principles would be necessary.” Id. at 271 . The threshold question presented, then, is whether section 255.05, Florida Statutes is facially ambiguous....

...contractor perform the contract in the time and manner prescribed in the contract and promptly make payments to all persons defined in s.713.01 whose claims derive directly or indirectly from the prosecution of the work provided for in the contract. Section 255.05(l)(a), Florida Statutes, (1989)....

...0 days after performance of the labor or after complete delivery of the materials or supplies, deliver to the contractor and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. Section 255.05(2), Florida Statutes, (1989) (emphasis added). Prior to Moretreneh, supra, the second district court was called on to construe a different portion of section 255.05(2), and opined: This section [255.05(2)] is intended to [provide] subcontractors and material-men on public work projects with the same type of protection which is available to subcontractors and materialmen on private projects under the Mechanics’ Lien Law. Miller v. Knob Construction Company, 368 So.2d 891 (Fla. 2d DCA 1979) at 893, citing Winchester v. State, 134 So.2d 826 (Fla. 2d DCA 1962). In Miller , therefore, if only in dicta, the court suggests that section 255.05 should be read in pari mate-ria with section 713.01, the Mechanics’ Lien Law, the position rejected by the Mor-etrench court as unnecessary because of the clarity of section 255.05. In Gergora v. R.L. Lapp Forming, Inc., 619 F.2d 387 (5th Cir.1980), the court noted that: Section 255.05 states that notice must be within ninety days of “complete delivery” of materials, whereas the statute refers only to the “performance” of labor — and not complete performance — as beginning the ninety day period....

...rable material contracts than for severable labor contracts, or it merely emphasizes that materials must be delivered to the construction site ready for use before the period begins to run. Id. at 389 . Thus, in Gergora , the Fifth Circuit construed section 255.05 according to similar language in the Miller Act, 40 U.S.C....

...section 270b, rejecting the contention that the notice period for unpaid fringe benefits ran separately from each day of the labor upon which the claim was based. Appellee cites Harvesters Group, Inc. v. Westinghouse Electric Corporation, 527 So.2d 257 (Fla. 3d DCA 1988) for the proposition that the notice provision of section 255.05(2) is plain and unambiguous....

...Yet, when faced with the question whether replacement parts for the previously delivered materials should be considered one in the series of previous deliveries, the Harvesters’ court looked to the Florida Mechanics’ Lien Law for guidance, pointing out that the Mechanics' Lien Law aids in construing provisions of section 255.05. Id. at 259, n. 4 . The difficulty in applying the notice provision of section 255.05(2) to a contract for rental of equipment lies in the character of the rental contract....

...Because a rental contract extends over time, and is severable by nature, it actually parallels more closely a contract for labor or services, which does not trigger the 90 day notice provision until the last of the labor is performed. Because of the severable nature of the rental contract and the express provision of section 255.05(2), supra, for notice “after complete delivery of material” (e.s.), as well as the incongruity of the result under an opposing rationale, we conclude that in the case of rental contracts the term “materials” is sufficiently amb...

...Viewing the “materials” delivered under a rental contract to reference each period of actual use, as opposed to the physical equipment itself which is never “delivered” over to the user in the sense of delivery to a buyer, we find “complete delivery” in section 255.05(2) requires reversal in the present case....

...Whether this result was intended by the legislature is certainly questionable, and in our view it is an unnecessary result under the statutory language. A number of courts, including this one, have had occasion to examine the public policy considerations that come into play in construing section 255.05....

...egislature in framing and enacting such legislation have done so with the intention that the laws will operate fairly as to all of the economic groups involved, as well as to the general public. Accordingly, in construing the said provisions of Sec. 255.05, we assume that the Legislature in enacting them intended to provide a procedure that would protect the materialman and subcontractor, as well as the general contractor, the owner, and the public....

...pment. The arguable result would be delay and added expense, which the statute seeks to prevent. This court, in construing the statute of limitations provision of the statute, recently adopted the position of the Miller court, stating: This section [255.05(2)] is intended to provide subcontractors and materialmen on public work projects with the same type of protection which is available to subcontractors and materialmen on private projects under the Mechanics’ Lien Law....

...Federal Insurance Co., 560 So.2d 326, 327 (Fla. 1st DCA 1990), citing Miller v. Knob Construction Co., 368 So.2d 891 , 893 (Fla. 2d DCA 1990). We find it appropriate to consider the cited decisions under the Florida Mechanics’ Lien Law for guidance in construing section 255.05(2), Florida Statutes....

SIMPSON, Senior Circuit Judge: Florida’s “Little Miller Act”, Fla. Stat. § 255.05 (1983), requires all general contractors for public works projects (“contractors”) to post a performance and payment bond. A subsection of the statute, § 255.05(2), (“subsection 2”) provides in part that no action may be instituted against the contractor or his surety by a “......

...brief p. 5). We note that the appellants made no prejudgment showing that the facts elicited at the deposition would have been relevant to the issue of statutory interpretation. We further note that the alleged jurisdictional failure to comply with § 255.05(2) was first raised by the defense in November, 1983 and that in March, 1984, the court ordered the parties to be ready for trial at the end of May....

...“(b) After the expiration of one (1) year following the date on which Principal ceased work on said Contract.” * * * * * * The plaintiffs did not allege or claim compliance with these provisions of the bond, but took the position that the ninety day provision was repugnant to Section 255.05, Florida Statutes, F.S.A., as written before its amendment in 1959....

...Judgment was entered, as to liability, for the plaintiffs. The Court held, inter alia: “3. That the limitation provision contained in Paragraph (3) (a) and (b) of said bond are not applicable to the plaintiff herein and are mere surplus-age in view of the applicable provisions of Florida Statute 255.05, as said Statute read on the 10 day of April, 1962....

...The canse proceeded to trial on damages and final judgment was thereupon entered. This appeal was thereafter timely perfected. The plaintiffs urge there was ample evidence before the court establishing that the bond was, in fact, posted pursuant to Section 255.05 Florida Statutes, F.S.A., in that the contract for construction was with Southeastern Palm Beach County Hospital District, a political subdivision of the State of Florida, and that Section 255.05 requires such a penal bond to be posted by: “(1) Any person entering into a formal contract with the state, any county of said state, or any city in said state, or any political subdivision thereof, or other public authority, for the...

...purpose of fulfilling the statutory bond conditions designed to protect laborers and materialmen in cases of public improvement, the surety company will be liable as provided by statute.” Prior to 1959, there were no notice provisions contained in Section 255.05. In 1959, the Florida Legislature amended Section 255.05 by adding a paragraph with a similar notice provision, and a one year limitation for bringing suit similar to the one contained in the bond....

...The Supreme Court held that the 1959 amendatory act failed to re-enact or publish at length the section of the Statute which was being amended and therefore the provision of the amendment was unconstitutional. As indicated, plaintiff’s cause of action arose in 1962 at a time when the second paragraph of Section 255.05 was unconstitutional, due to a procedural defect in the passage of the act, rather than a substantive defect....

...in any way, provided notice was given that performance was completed. Provisions requiring that notice be given are not against public policy as we have similar provisions in the Mechanics’ Lien Law, Section 84.061(2), Florida Statute, F.S.A., and Section 255.05 today requires that notice be given within an identical period....

...ral Telephone and a claim against the City of Venice, its Mayor and Councilmen. *581 This last claim is based on the contention that the Defendants negligently failed to require General Telephone to post a payment and performance bond as required by § 255.05 of Florida Statutes, therefore, so claims Empire Pipe, it is entitled to recover damages, attorney fees and costs....

...FIC filed a motion for summary judgment, asserting that because more than a year had lapsed between the date of appellant’s last performance on the project and the date on which appellant filed suit under the bond, the statute of limitations barred the action. This motion for summary judgment was granted. Section 255.05(2), Florida Statutes, provides: “No action shall be instituted against the contractor or the surety on the bond after one year from the performance of the labor or completion of delivery of the materials or supplies.” This section is intended to provide “subcontractors and material men on public work projects with the same type of protection which is available to subcontractors and material men on private construction projects under the mechanics lien law ... Section 255.05 was patterned after the federal statute known as the Miller Act.” Miller v....

...Knob Construction Co., 368 So.2d 891, 893 (Fla. 2d DCA 1979). The courts of this state have looked to the federal Miller Act for guidance in resolving ambiguities in this section. Blosam Contractors, Inc. v. Joyce, 451 So.2d 545, 548 (Fla. 2d DCA 1984). The Miller Act, like section 255.05, contains a provision limiting when a suit can be instituted by a subcontractor: “[N]o such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by him.” 40 U.S.C. s. 270b(b). Section 255.05(2) specifies that the one year limitations period begins to run when the performance of the labor or delivery of the materials or supplies has been completed....

...f all labor on the project and not just the labor provided by the subcontractor claiming against the bond. However, in looking to the federal law for guidance in interpreting the statute, it is clear that the one year limitations period contained in section 255.05(2) commences running against a claimant such as appellant on the date on which that claimant has completed performance of his part of the labor on the project....

...re the court in that case. We concluded only that the subcontractor’s entitlement to an attorney’s fee in that case was barred because the action was instituted more than one year after completion of the entire construction project. We find that section 255.05(2) specifies a clear date upon which the limitations period began to run against appellant for this action against the construction bond....

this case as a statutory bond pursuant to section 255.-05, Florida Statutes (1979), rather than a common-law

...Reversed and remanded for a new trial. We agree with appellant that the trial court erred in entering an involuntary dismissal at the end of appellant’s case in this bench trial. The appellant presented evidence demonstrating its entitlement to recovery against appellee under section 255.05, Florida Statutes (1991), either as a claimant on its own behalf, or as an assignee of another....