Florida/Georgia Personal Injury & Workers Compensation

...Dadeland asserts that the term "insured" is not defined by section 624.155, and, therefore, its meaning must and should be derived contextually by reference to other statutory provisions found in the insurance code. Specifically, Dadeland refers to section 627.756 of the Florida Statutes, which governs attorney fees in any action filed by an owner against a surety under a performance bond issued in conjunction with a construction contract. See § 627.756, Fla. Stat. (1999). Section 627.756 provides that the general provision with regard to attorney fees in prevailing actions against insurers found in section 627.428 also applies to these actions, and that "[o]wners . . . shall be deemed to be insureds or beneficiaries for purposes of this section." § 627.756(1), Fla....

...provision only by the inclusion of the limiting language "for purposes of this section." Therefore, St. Paul contends that Dadeland's position is contrary to the expressed intent of the Legislature to limit this definition of an "insured" solely to section 627.756....

...extend to obligees of surety contracts. We reject the position advanced by St. Paul but conclude that the theory suggested by Dadeland does not automatically answer the question we must resolve. We conclude that the Legislature's intent in enacting section 627.756 was to not only identify obligees as standing in the position of insureds, but to also ensure that principals of payment or performance bonds would not be entitled to recover attorney's fees in actions filed pursuant to those bonds. Consequently, the Legislature's inclusion of an obligee within the definition of "insured" for purposes of section 627.756, although persuasive, is not totally determinative of whether that term should be similarly construed for purposes of section 624.155....

...n this state, either to be in an amount equal to the amount demanded in such claim of lien, plus interest thereon at the legal rate for 3 years, plus $500 to apply on any court costs which may be taxed in any proceeding to enforce said lien. [4] See § 627.756, Fla....

...We have for review the following question certified to be of great public importance: DOES THE PREVAILING PARTY TEST OF Moritz v. Hoyt Enterprises, 604 So.2d 807 (Fla. 1992), APPLY TO AN AWARD OF ATTORNEY'S FEES MADE PURSUANT TO SECTIONS 627.428 AND 627.756, FLORIDA STATUTES? Danis Industries Corp....

...ey prosecuting the suit in which the recovery is had. § 627.428(1), Fla. Stat. (1989). This language specifically applies to payment or performance bonds written by a surety insurer to indemnify against losses associated with construction projects, § 627.756, Fla....

...n the amount of $185,888.35. Appellants then filed a motion in the trial court to confirm the award against McCarthy and at the same time they moved for an award of attorney's fees against FIC on the performance bond pursuant to sections 627.428 and 627.756, Florida Statutes (1987)....

...After hearing appellants' motion for attorney's fees against FIC, the court entered the order denying the motion, citing Glen Johnson. This appeal followed. Appellants' claim for attorney's fees is based on their interpretation of two statutes, sections 627.428 and 627.756, Florida Statutes (1987), which they contend allow the recovery of attorney's fees from a surety under a performance bond....

...vails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had. Section 627.756 provides: Section 627.428 applies to suits brought by owners, subcontractors, laborers, and materialmen against a surety insurer under payment of performance bonds written by the insurer under the laws of this state to indemnify against pecuniary loss by breach of a building or construction contract....

...not amount to a voluntary payment by FIC. Thus, three issues are presented for our review: (1) Does section 682.11 prohibit an award of attorney's fees for services rendered by the attorney during arbitration proceedings? (2) Do sections 627.428 and 627.756 authorize an award of attorney's fees against the surety insurer for services rendered by the attorney during arbitration proceedings (or, stated differently, are arbitration proceedings encompassed within the term "suit" under section 627.42...

...Roberts Electrical Contractors, Inc., 533 So.2d 789 (Fla. 1st DCA 1988) (holding that a subcontractor, whose dispute with a contractor and a surety insurer was settled through arbitration, could be awarded attorney's fees pursuant to sections 627.428 and 627.756, even though the arbitration award had been paid in full)....

...RED DURING ARBITRATION PROCEEDINGS, OR DOES IT MERELY PROHIBIT THE ARBITRATOR FROM MAKING SUCH AN AWARD? 2. Does a "Suit" under Section 627.428(1) Encompass Arbitration? In Glen Johnson we did not address the question of whether sections 627.428 and 627.756 authorize an award of attorney's fees against the surety, since the owner sought attorney's fees under the surety contract and not under the statutes....

...read together, provide for attorney's fees against the surety insurer in construction bond actions. Zac Smith & Co.; Fitzgerald & Co. In Zac Smith & Co., the court stated that "[a]n insured under a performance or payment bond is ... entitled, under section 627.756, to attorney fees for the proceedings necessary to obtain the judgment against its insurer, the surety on the bond." Id. at 743. The court made it clear that the attorney's fees recoverable under sections 627.428 and 627.756 include those incurred during arbitration, when it stated that "the arbitration proceedings were necessary to rendition of the judgment which triggered [the] entitlement to attorney fees under these provisions." Id....

...her the insurers contest coverage through arbitration or in the trial courts. To hold otherwise would *424 be to allow insurers to avoid paying attorney's fees in contested coverage cases merely by choosing arbitration. In addition, it is clear that section 627.756 is intended to implement the policy underlying section 627.428 in the context of construction bond actions....

...court to confirm the arbitrator's award and to assess attorney's fees and costs. The trial court awarded the plaintiff attorney's fees, and the surety argued on appeal that the plaintiff was not entitled to attorney's fees under sections 627.428 and 627.756 because there had not been a "rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of [the insured]," as required under section 627.428(1)....

...he principal by which the surety is bound. Since FIC's confession of judgment is the equivalent of "the rendition of a judgment or decree" against it, appellants were entitled to recover attorney's fees against the insurer under sections 627.428 and 627.756 and Fitzgerald & Co. CONCLUSION In summary, we hold that sections 627.428 and 627.756 authorize an award of attorney's fees to appellants, notwithstanding section 682.11, which merely prohibits the arbitrator from making such an award....

...We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. The salient facts were stated by the district court as follows: Section 627.428 (formerly section 627.0127), Florida Statutes (1983), permits the recovery of attorney's fees when insureds recover judgments against insurers. Section 627.756 (formerly 627.0905), Florida Statutes (1983), extends the application of section 627.428 to actions in which owners, laborers, materialmen and subcontractors recover judgments against sureties in actions on payment bonds. Section 627.756 originally contained a qualifying provision limiting attorney's fees to not more than twelve and one-half percent of the judgment recovered....

...tion on the amount of attorney's fees made recoverable by statute in certain actions. [1] Section 627.428 (formerly section 627.0127), Florida Statutes (1983), permits the recovery of attorney's fees when insureds recover judgments against insurers. Section 627.756 (formerly 627.0905), Florida Statutes (1983), extends the application of section 627.428 to actions in which owners, laborers, materialmen and subcontractors recover judgments against sureties in actions on payment bonds. Section 627.756 originally contained a qualifying provision limiting attorney's fees to not more than twelve and one-half percent of the judgment recovered....

...ed at the time of the statutory amendment repealing the limitation appellant was entitled to the benefit of the statutory amendment and the limitation should not have been applied to the attorney's fees recoverable in this case. Sections 627.428 and 627.756, Florida Statutes (1983), which bestow a right of attorney's fees, are understandably considered beneficial, curative, and remedial by the favored class (insureds, owners, laborers, materialmen and subcontractors) but as to the class on whom...

...ty who did not theretofore have the legal obligation to render or pay that money. The right is not merely a new or different remedy to enforce an already existing right and is, for that reason, not merely procedural. [4] Likewise, a statute, such as section 627.756, Florida Statutes (1983), which extends the application of an existing statute which itself created substantive rights and obligations (such as section 627.428) to an additional class of prospective parties creates as to the newly aff...

...tion on a substantive right serves to decrease that substantive right. [6] In neither instance does the change give or change the procedural right or remedy to enforce the substantive burden or right itself. Accordingly, the legislative amendment of section 627.756, Florida Statutes (1983), which repealed the twelve and a half percent limitation on the amount of attorney's fees recoverable from sureties under section 627.428, increased the substantive statutory obligation of the surety to pay attorney's fees....

...Foote Brothers Corporation, 458 So.2d 409 (Fla. 4th DCA 1984). Because appellant's cause of action on the surety bond in this case accrued prior to October 1, 1982, the trial court was correct in limiting appellant's recovery of attorney's fees under section 627.756, Florida Statutes to twelve and a half percent of the amount of appellant's recovery in accordance with the limitation in the statute as it was effective when appellant's cause of action accrued on the underlying payment bond....

...The parties did so, and the contractor's surety paid the arbitration award. The property owners then sought an award of their attorney's fees against the surety pursuant to section 627.428, Florida Statutes (1987), which allows for an award of attorney's fees upon rendition of a judgment against any insurer, and section 627.756, which applied section 627.428 to "suits" brought by property owners against a surety. In holding that the term "suit" in section 627.756 should be construed to include arbitration proceedings, the court noted that the parties had chosen to resolve their *703 dispute through arbitration rather than through an action in a court of law....

...Each of these awards was paid by either the insurer or the contractor before a judgment confirming the awards was entered by the circuit court. In all three cases, the respondents sought an award of attorney's fees pursuant to sections 627.428 and 627.756, Florida Statutes (1987). [1] *79 In Acousti Engineering, an award of attorney's fees was entered by the trial court. The award was upheld by the Fifth District Court of Appeal which held "attorney's fees awarded pursuant to section 627.756 are not barred merely because the amount due the insured was established pursuant to arbitration rather than through a judicial determination." 549 So.2d at 791....

...In Fewox, the trial court denied the motion for attorney's fees and, in Park Shore, the trial court refused to confirm an award of attorney's fees which was included in the arbitration award. In both of those cases, the Second District Court of Appeal reversed the trial court, holding that "sections 627.428 and 627.756, Florida Statutes (1987), authorize an award of attorney's fees [incurred during arbitration] notwithstanding section 682.11, [2] which merely prohibits arbitrators from making such an award." Park Shore, 556 So.2d at 440....

...SECTION 682.11, FLORIDA STATUTES (1987), PROHIBIT AN AWARD OF ATTORNEY'S FEES INCURRED DURING ARBITRATION PROCEEDINGS, OR DOES IT MERELY PROHIBIT THE ARBITRATOR FROM MAKING SUCH AN AWARD? DO THE ATTORNEY'S FEES RECOVERABLE UNDER SECTION 627.428 [AND 627.756, FLORIDA STATUTES (1987)] INCLUDE THOSE INCURRED DURING ARBITRATION PROCEEDINGS? 556 So.2d at 423, 424....

...Construction Co., Anderson, and Cuevas to the extent they conflict with the Second District's decision in Fewox. It is so ordered. SHAW, C.J., and OVERTON, McDONALD, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. NOTES [1] Sections 627.428(1) and 627.756 provide, in pertinent part: 627.428 Attorney's fee....

...or ... the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had. 627.756 Bonds for construction contracts; attorney fees in case of suit....

...The trial judge's order on the appellees' motion for attorney's fees stated that they were entitled to "reasonable attorney's fees pursuant to Fla. Stat. § 713.29." Appellants contend that attorney's fees should have been assessed according to Sections 627.756 and 627.428, Florida Statutes (1977)....

...Section 713.29, Florida Statutes (1977), provides that in actions to enforce mechanic's liens under Chapter 713, the prevailing party is entitled to "reasonable attorney's fees." Section 627.428 provides reasonable attorney's fees to an insured who prevails in a suit against an insurer. Section 627.756(2) applies the attorney's fees provision in 627.428 to suits by "owners, subcontractors, laborers and material men ..." against surety insurers on performance or payment bonds....

...However, that section states further that "the amount ... shall not be more than 12.5% of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney's fees or compensation)... ." We agree with appellants that Section 627.756(2) is applicable. Section 624.13 of the Insurance Code states that the code's provisions regarding types of insurance, insurers or as to "a particular matter" prevail over all other such provisions. Sections 627.428 and 627.756 are within the insurance code, and Section 627.756 deals specifically with suits on performance or payment bonds against surety insurers to construction contracts. By mandate of Section 624.13, then, attorney's fees in suits by sub-contractors like appellee against a surety on a performance or payment bond are governed by the specific provisions in 627.756....

...of the contract, ..." Midway Shopping Mall, supra, 257 So.2d at 908, was said to include the reasonable attorney's fees Section 713.29 provides for. Here, the parties' contract did not cause the provisions in Section 713.29 to prevail over those in Section 627.756. Language in the surety agreement that claimant could sue on the bond "for all sums justly due ..." is not inconsistent with Section 627.756(2). The legislature has simply further defined what attorney's fees are due such claimants. Nor is Section 627.756(2) inconsistent with the general rule that the mechanic's lien law is to be liberally construed, given its narrow, specific language....

...l, so none are considered. The judgment is affirmed except as to the award of attorney's fees, which is vacated, and the cause is remanded to the trial court with directions to reconsider the allowance of attorney fees to appellee in conformity with section 627.756(2), Florida Statutes (1977)....

...COWART, Judge dissenting: As a matter of construing the statutes themselves, I agree with Judge Cobb's reasoning in Allied General Contractors v. Superior Asphalt Co., 397 So.2d 727 (Fla. 5th DCA 1981). However, I do not agree with the result because I believe the application of section 627.756, Florida Statutes (1979), to a mechanics' lienor's action on a payment bond is a violation of the lienor's right to equal protection of the law....

...The majority holds that a lien claimant who is forced to proceed against a payment bond, rather than the land, cannot recover reasonable attorney's fees in excess of 12.5 percent of the recovery under the bond because this limitation is contained in section 627.756, Florida Statutes (1979), a statute in the insurance code relating to surety insurance contracts....

...ner has required his contractor to secure a payment bond, as this is a circumstance bearing no relation to the purposes of the statute authorizing reasonable attorney's fees in mechanics' lien cases. To avoid this constitutional problem I would hold section 627.756 inapplicable and would read section 713.29, Fla. Stat. (1979), applicable to lienors on bonded and unbonded jobs alike. NOTES [1] § 713.23, Fla. Stat. (1977). [2] § 627.756(2), Fla....

...ion 713.29, [3] and on Glen Johnson, Inc. v. L.M. Howdeshell, Inc., 520 So.2d 297 (Fla. 2d DCA 1988). [4] Appellee concedes that attorney fees should have been assessed only against Lumbermens and not against Smith. It argues, however, that sections 627.756 and 627.428, when read together, authorize the award of attorney fees to an "insured" when recovery is made against the surety on a building construction payment and performance bond....

...determining what is a reasonable attorney fee. Loxahatchee River Environmental Control District v. Guy Villa & Sons, Inc., 371 So.2d 111 (Fla. 4th DCA 1978), cert. den., 378 So.2d 346 (Fla. 1979). Attorney fees are authorized by sections 627.428 and 627.756 "upon the rendition of a judgment ......

...An insured under an uninsured motorist insurance policy, even though he arbitrates his claim, is entitled to attorney fees for the proceedings which were necessary to obtain the judgment against his insurer. [6] An insured under a performance or payment bond is also entitled, under section 627.756, to attorney fees for the proceedings necessary to obtain the judgment against its insurer, the surety on the bond....

...hen they are compelled to sue to enforce their policies." He analogized the instant case to arbitration proceedings under insurance policies providing uninsured motorist coverage, in which the courts have awarded attorney fees and costs, noting that section 627.756 makes appellee an insured under the performance bond entitled to the benefits of section 627.428....

...The arbitration award was paid by USF & G immediately prior to the hearing on the motion to confirm the award and to assess attorney's fees and costs. The trial court found Roberts was entitled to an award of attorney's fees and costs under the provisions of sections 627.428 and 627.756, Florida Statutes....

...ally be governed by the provisions of section 713.29, Florida Statutes, but a claim for attorney's fees in a suit brought by a subcontractor against a contractor and its surety is an action against the bond, and will be governed by the provisions of section 627.756. Id. In other words, "when a lien is substituted by a bond, the statute which governs the assessment of attorney's fees is not the prevailing party provision under section 713.29, but the insurance provisions under sections 627.428 and 627.756." Shores Supply Co. v. Aetna Casualty & Surety Co., 524 So.2d 722, 724 (Fla. 3d DCA 1988). When read together, sections 627.756 and 627.428 specifically provide for attorney's fees in construction bond actions....

...1982), the supreme court concluded that when a lien is substituted by a bond, the statute which governs the assessment of attorney's fees is not the prevailing party provision under section 713.29, but the insurance provisions under sections 627.428 and 627.756....

...Section 627.428 provides that upon the rendition of a judgment against an insurer and in favor of an insured, a trial court, or in the event of an appeal, the appellate court, shall adjudge against the insurer and in favor of the insured reasonable attorney's fees. Section 627.756 provides that 627.428 applies to suits brought by owners, subcontractors, laborers, and materialmen against a surety insurer under a payment bond; these individuals are deemed to be insureds for purposes of this section....

...ney's fees. In view of the fact that Aetna and Frisa are both precluded from claiming attorney's fees under any statute or contract provision, Aetna has no legal basis to assert this claim. Shores' claim to attorney's fees under sections 627.428 and 627.756 cannot be defeated by the trial court's consolidation of the cases under Rule 1.270(a), Fla.R....

...Rather, each suit maintains its independent status with respect to the rights of the parties involved." Wagner v. Nova University, Inc., 397 So.2d 375, 377 (Fla. 4th DCA 1981) (citations omitted). The right to attorney's fees under sections 627.428 and 627.756 is considered a substantive right because it gives a party "the legal right to recover substance (money)." L....

...ward as the prevailing party in its separate contract action is without any statutory or contractual basis. NOTES [1] A device which allows a new pipeline to be connected to an existing pipeline without having to shut down the existing pipeline. [2] Section 627.756 had previously placed a 12 1/2 per cent limitation on the amount of attorney's fees recoverable against sureties in actions on payment bonds....

...An issue on appeal was: "The Appellant's third point urges that the trial court may not assess as an attorneys' fee more than 12 1/2 percent of the amount for which judgment is awarded against the bonding company because of F.S.A. § 627.0905(2)". (§ 627.0905(2) is the predecessor of § 627.756 cited by Defendant.) The Third District Court of Appeal stated at 257 So.2d 907 and 908: "We hold that F.S.A....

...t to section 713.23, Florida Statutes (1977). After Englishtown failed to pay Johnson, Johnson sued Englishtown and Balboa and gained a judgment against them. Johnson's complaint originally sought attorney's fees in accordance with the provisions of section 627.756, Florida Statutes (1977). After judgment, however, Johnson persuaded the trial judge that section 713.29 was applicable and secured an award for attorney's fees well in excess of the 12.5% limitation imposed by section 627.756....

...The primary question is which statute applies when a contractor and his surety are sued for nonpayment under a construction contract. A related question is the award of attorney's fees for the enforcement of a mechanic's lien under chapter 713, Florida Statutes (1977). Section 627.756 relating to the award of attorney's fees for the enforcement of construction bonds was originally codified as section 627.0905 in 1959....

...ater legislative enactment. Such resolution, however, requires the presence of two initial elements: a conflict between the two statutes and the lack of any legislative action to clarify the difference. Both elements are lacking in the present suit. Section 627.756 applies to suits brought by owners, subcontractors, laborers, and materialmen against insurers under payment or performance bonds written to indemnify such persons against pecuniary loss by breach of a building or construction contract....

...Therefore, the provisions of part I relating to liens would not apply to an action on the bond. In 1977 the legislature amended both of these statutes in a single piece of legislation so that the intent to harmonize them is self-evident. [3] Prior to 1977 section 627.756 contained two subsections....

...n when suit is on a simple indemnity contract. If a plaintiff sues to enforce his rights under a construction bond, such suit is normally brought against the main contractor and surety for breach of contract, and relief is limited to that granted in section 627.756....

...men and laborers the greatest possible protection. [4] *1047 It also based the decision on the specific wording of the surety contract. Neither of these reasons, however, provides a sound basis for construing section 713.29 to control in the face of section 627.756. The First District's per curiam opinion in the present case cites Snead Construction Corp. v. Langerman, 369 So.2d 591 (Fla. 1st DCA 1978), as controlling. In Snead the court faced a similar factual situation and applied section 627.756. It described the interaction of several provisions of the insurance code as follows: We agree with appellants that Section 627.756(2) is applicable. Section 624.13 of the Insurance Code states that the code's provisions regarding types of insurance, insurers or as to "a particular matter" prevail over all other such provisions. Sections 627.428 and 627.756 are within the insurance code, and Section 627.756 deals specifically with suits on performance or payment bonds against surety insurers to construction contracts. By mandate of Section 624.13, then, attorney's fees in suits by sub-contractors like appellee against a surety on a performance or payment bond are governed by the specific provisions in 627.756....

...[5] Since that time, two of those courts have reversed their holdings [6] and joined the remaining two [7] in holding that, when suit is brought against the contractor and surety for enforcement of the surety bond, attorney's fees are limited to the 12.5% maximum imposed by section 627.756....

...orcement of mechanics liens, Section 713.29 should apply and the award of the attorneys' fees was proper. On the other hand, if the awards to the subcontractors arise out of a claim against the payment bond, the attorney's fee would be controlled by Section 627.756(2), Florida Statutes (1977)....

...Resnick, supra, held that the legal effect of furnishing a payment bond pursuant to 713.23 is to exempt the owner and the property from the provisions of Part I. The lien claimants [sic] cause of action is upon the bond rather than to enforce a lien under Part I. Thus, Section 627.756(2) should control the attorney's fees....

...[8] In the present case subcontractor Johnson sued Englishtown, the general contractor, and its surety, Balboa Insurance Company, for nonpayment under the subcontractor's contract. Therefore, the main cause of action being the breach of contract and enforcement of the surety contract, Johnson is restricted to his section 627.756 award for attorney's fees. Further, in the complaint Johnson claimed entitlement to attorney's fees only under the provisions of section 627.756....

...It was not until the post-judgment motion to tax costs and award reasonable attorney's fees that section 713.29 was raised. No attorney's fees can be granted except as provided by contract or statute. The statutory basis for attorney's fees against a company writing payment or performance bonds is provided by section 627.756....

...Given the authority to sue and collect, one must be bound by the legislative limitations placed thereon. The district court opinion in the instant case is approved, and that in Midway is disapproved. It is so ordered. SUNDBERG, C.J., and BOYD, OVERTON and ALDERMAN, JJ., concur. ADKINS, J., dissents. NOTES [1] § 627.756(2) provided as follows: (2) Section 627.428 (attorney fee) shall also apply as to suits brought by owners, subcontractors, laborers and material men against a surety insurer under payment or performance bonds written by the insurer under t...

...5th DCA 1981); Allied Gen. Contractors v. Superior Asphalt Co., 397 So.2d 727 (Fla. 5th DCA 1981); Snead Constr. Corp. v. Langerman, 369 So.2d 591 (Fla. 1st DCA 1978). Thus, the Third District now stands alone in its solution to the instant problem. [8] As noted earlier, § 627.756(2) is the predecessor of current § 627.756.

...[1] The arbitrators denied GIT's additional claim for $798,690. GIT subsequently filed a complaint against Danis and its surety, Seaboard, in circuit court seeking to confirm the arbitration award [2] and to recover attorney's fees *987 against Seaboard. See §§ 627.428, 627.756, Fla....

...in fact prevailed on the significant issues tried before the court." Id. at 810. [3] We reject appellants' contention because the prevailing party standard of Moritz does not apply to an award of attorney's fees made pursuant to sections 627.428 and 627.756, Florida Statutes (1989)....

...This statutory authorization for an award of attorney's fees applies to suits brought by subcontractors "against a surety insurer under payment or performance bonds written by the insurer ... to indemnify against pecuniary loss by breach of a building or construction project." § 627.756, Fla. Stat. (1989). Thus, under sections 627.428 and 627.756, a subcontractor who prevails in arbitration proceedings against a contractor or its surety is entitled to recover from the surety the attorney's fees incurred by the subcontractor during arbitration....

...Although we deny appellants' motion for rehearing, we certify the following question as a matter of great public importance: DOES THE PREVAILING PARTY TEST OF Moritz v. Hoyt Enterprises, 604 So.2d 807 (Fla. 1992), APPLY TO AN AWARD OF ATTORNEY'S FEES MADE PURSUANT TO SECTIONS 627.428 AND 627.756, FLORIDA STATUTES? AFFIRMED in part; REVERSED in part; REMANDED....

...The contract clearly provided for liquidated damages and the evidence shows Aristar is entitled to damages therefor. Thus we find no error in the judgment allowing this item of damages. The final point in Bankers' appeal is that the amount of attorneys' fees award to AIA, Hamilton and Meekins is erroneous because Section 627.756(2), Florida Statutes (1977), limits attorneys' fees in a suit on a payment bond to a maximum of 12 1/2%....

...enforcement of mechanics liens, Section 713.29 should apply and the award of attorneys' fees was proper. On the other hand, if the awards to the subcontractors arise out of a claim against the payment bond, the attorneys' fee would be controlled by Section 627.756(2), Florida Statutes (1977)....

...Resnick, supra, held that the legal effect of furnishing a payment bond pursuant to 713.23 is to exempt the owner and the property from the provisions of Part I. The lien claimants cause of action is upon the bond rather than to enforce a lien under Part I. Thus, Section 627.756(2) should control the attorney's fees. Therefore, we find it is error to award attorneys' fees under Section 713.29, Florida Statutes (1977). Several cases which have treated the dichotomy between Sections 713.29 and 627.756(2) have held that in a case like the one at bar Section 713.29 applies and reasonable attorneys' fees are allowable with no statutory maximum....

...3d DCA 1972) and Travelers Indemnity Company *739 v. Howell & King Inc., 336 So.2d 1 (Fla. 4th DCA 1976), cert. denied 341 So.2d 1036 (Fla. 1976). In Snead Construction Corp. v. Langerman, 369 So.2d 591 (Fla. 1st DCA 1978), the First District Court of Appeal held Section 627.756(2) applied to the recovery of attorney fees on a payment bond. On the record in this case it seems to us that Section 627.756(2) should control the allowance of attorneys' fees because we have expressly held that the claims here are on the payment bond as opposed to a straight foreclosure of a mechanics lien....

...between Grinnell's cost of installation and the contract allowance for the sprinkler system. b) Vacate the award of attorneys' fees to AIA, Hamilton, Meekins and Goldman and reconsider the allowance of attorneys' fees to said subcontractors applying Section 627.756(2), Florida Statutes (1977)....

...Acousti then filed with the trial court a motion to dissolve abatement of the civil action as well as a motion for an award of attorney's fees. After conducting a hearing on Acousti's motion, the trial court entered an order awarding Acousti attorney's fees pursuant to sections 627.756 and 627.428 of the Insurance Code. See §§ 627.756, 627.428, Fla....

...On appeal INA contends that it was error for the trial court to enter the award of attorney's fees because the Florida Arbitration Code does not authorize the recovery of attorney's fees. This contention is devoid of merit because attorney's fees awarded pursuant to section 627.756 are not barred merely because the amount due the insured was established pursuant to arbitration rather than through a judicial determination....

...King, P.A., Miami, for appellant. Eve N. Wagner of Cooper, Shahady, Frazier & Pugatch, Fort Lauderdale, for appellees. DELL, Judge. Appellant, the prevailing party in a mechanic's lien foreclosure action, challenges the amount awarded as attorney's fees pursuant to Section 627.756, Florida Statutes (1981)....

...n a payment bond, as an additional party defendant. The trial court entered summary judgment on the payment bond in favor of appellant and awarded appellant attorney's fees limited to twelve and one-half percent (12 1/2%) of the judgment pursuant to Section 627.756, Florida Statutes (1981)....

...ellate proceedings. The grant of this right, which did not exist prior to amendment, accomplished a change in the substantive law which could not apply retroactively. Appellant, however, previously had the substantive right to recover attorney fees, Section 627.756, Florida Statutes (1981). The repealer act affected only the amount of money appellant could collect pursuant to that right. Therefore we hold that the amendment to Section 627.756 is a remedial statute which may be applied retroactively and that the trial court erred when it limited appellant's attorney's fees to 12 1/2% of the judgment or decree awarded under the bond. Accordingly, we reverse and remand this cause with directions to the trial court to determine and award appellant attorney's fees as provided in Section 627.756 as amended effective October 1, 1982, Florida Statutes (Supp....

...er under the laws of this state to indemnify against pecuniary loss by breach of a building or construction contract. Owners, subcontractors, laborers, and materialmen shall be deemed to be insureds or beneficiaries for the purposes of this section. § 627.756, Fla....

...In Danis, the Florida Supreme Court addressed a certified question regarding whether the "prevailing party" test of Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992), applied to an award of attorney's fees pursuant to sections 627.428 and 627.756, Florida Statutes (1989). 645 So.2d at 421. Section 627.428(1), made applicable to performance bonds written by a surety insurer by section 627.756, provided a one-way-street whereby an insured or beneficiary of an insurance policy could recover attorney's fees upon obtaining a judgment against an insurer....

...The Gergora court, however, faced directly and adjudicated only two issues: first, whether the trustees' written notice was tardy, thereby precluding any suit against the general contractor and surety; and, second, whether the District Court's award of attorneys' fees to the trustees was contrary to Florida law. (Fla.Stat. Section 627.756(2))....

...Allstate Insurance Company, 863 So.2d 210 (Fla.2003). The attorney's fees in Holiday were awarded pursuant to section 627.428, Florida Statutes (2002), the same statute that was used to award fees in the instant case. That statute does not expressly authorize the use of a multiplier nor does section 627.756, Florida Statutes (2001), which was another basis cited for the fees awarded to Consolidated....

...portance: In light of the Supreme Court's decision in Sarkis v. Allstate Insurance Company, 863 So.2d 210 (Fla.2003), may a multiplier be applied to enhance an award of attorney's fees granted under fee shifting statutes such as sections 627.428 and 627.756, Florida Statutes (2001)....

...laced its reliance on C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So.2d 1177 (Fla. 1985), and section 713.29, Florida Statutes (1990). Appellant contends he was entitled to attorney's fees pursuant to section 627.428, Florida Statutes (1990), and section 627.756, Florida Statutes (1990). [1] *1142 We agree. The supreme court in Julian E. Johnson & Sons, Inc. v. Balboa Insurance Co., 408 So.2d 1044 (Fla. 1982), noted that section 627.756 specifically fails to mention actions to enforce equitable or statutory liens in favor of owners, subcontractors, laborers and materialmen....

...In contrast, section 713.29 is expressly limited to "any action brought to enforce a lien under part I (Mechanic's Liens)." Id. at 1046. "Therefore, the provisions of part I relating to liens would not apply to an action on the bond." Id. The court wrote: Prior to 1977, section 627.756 contained two subsections....

...The Julian court deduced that the legislature must have intended each to be a separate action. Id. A claim for attorney's fees in a suit brought by a subcontractor against a contractor and its surety is an action against a bond, and will be governed by the provisions of section 627.756....

...Roberts Electrical Contractors, 533 So.2d 789, 790 (Fla. 1st DCA 1988). "In other words, `when a lien is substituted by a bond, the statute which governs the assessment of attorney's fees is not the prevailing party provision under section 713.29, but the insurance provisions under sections 627.428 and 627.756.'" Id. [citing Shores Supply Co. v. Aetna Cas. & Surety Co., 524 So.2d 722, 724 (Fla. 3d DCA 1988)] The Fitzgerald Court held that read together, sections 627.756 and 627.428, "specifically provide for attorney's fees in construction bond actions....

...sed calculation based on an average cost per deposition apparently reflected in a bill counsel received, plus the cost of the copy. Accordingly, the order taxing costs against cross-appellants is affirmed. ANSTEAD and GUNTHER, JJ., concur. NOTES [1] Section 627.756, Florida Statutes provides: Section 627.428 applies to suits brought by owners, subcontractors, laborers and materialmen against a surety insurer under payment or performance bonds written by the insurer under the laws of this state t...

...Attorney's Fees In its motion, Gibson requests an award of attorney's fees under section 627.428, Florida Statutes. Section 627.428 *1338 mandates an award of reasonable attorney's fees for an insurance beneficiary who prevails against an insurer in a suit to enforce insurance benefits. Under section 627.756, Florida Statutes, the provisions of section 627.428 apply to lawsuits by subcontractors against sureties....

...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)....

...ntion to look to the bond for payment. They refused to pay appellant for the supplies and services rendered on the sub-subcontract, and appellant successfully sued them. As part of its claim, appellant sought attorney fees under sections 627.428 and 627.756, Florida Statutes (1989)....

...vails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had. Section 627.756 provides: Section 627.428 applies to suits brought by owners, subcontractors, laborers, and materialmen against a surety insurer under payment or performance bonds written by the insurer under the laws of this state to indemnify against pecuniary loss by breach of a building or construction contract. Owners, subcontractors, laborers, and materialmen shall be deemed insureds or beneficiaries for the purposes of this section. Appellees argued that section 627.756 does not expressly provide for an award of attorney fees to a prevailing "sub-subcontractor." Appellant contended that "sub-subcontractor" should be viewed as a generic term. The trial court denied the motion, finding that "as a matter of law Plaintiff is not entitled to an award of attorney fees." In order to properly construe section 627.756, we must first look to the development of the mechanics' lien law, to which the construction bond provisions of chapter 255 are inextricably tied....

...protected by adherence to the notice provisions of the mechanics' lien law. [2] Turning to the application of the attorney fee provisions of section 627.428, Florida Statutes (1989), to suits brought under chapter 255 bonds through the operation of section 627.756, Florida Statutes (1989), it is immediately apparent that the language of section 627.756 has not changed since its inception during the days of "remoteness from privity." See § 627.0905(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....

...under such terms. "The measure of recovery under a performance bond is the amount actually and reasonably expended in completing the duties under the bonded contract." 8 Florida Practice Series, Construction Law Manual § 10:3 (2009-2010); see also § 627.756, Florida Statutes (2010) ("A surety who issues a bid, performance, or payment bond in connection with construction activities where hazardous substances exist or are discovered is liable ....

...Stated differently, "The measure of recovery under a performance bond is the amount actually and reasonably expended in completing the duties under the bonded contract." 8 Florida Practice Series, Construction Law Manual § 10:3 (2009-2010); see also § 627.756, Florida Statutes (2010) ("A surety who issues a bid, performance, or payment bond in connection with construction activities where hazardous substances exist or are discovered is liable ....

...nterclaim. ... [TJhat [insureds] did not obtain a money judgment ... does not preclude their entitlement to fees.”); Cont’l Cas. Co. v. A.W. Baylor Versapanel-Plastering, Inc., 97 So.3d 937, 940 (Fla. 5th DCA 2012) (“Under [section 627.428 and section 627.756, Florida Statutes], the claimant is not required to be the prevailing party on the significant issues in order to recover attorney’s fees, but need only obtain a judgment—no matter how minimal the amount of damages awarded.”)....

...attorney’s fees to the prevailing party in an action to enforce a claim on a bond under chapter 713. *939 Notwithstanding the arbitrator’s decision, the trial court found that Baylor was entitled to recover attorney’s fees pursuant to sections 627.756 and 627.428, Florida Statutes (2007)....

...The damages awarded Baylor were for far less than the amount of its claim. Prior to the arbitration panel addressing the attorneys’ fees issue, Baylor submitted a memorandum of law seeking attorney’s fees not only under sections 713.29, but also pursuant to sections 627.756 and 627.428. After declining to award attorney’s fees under section 713.29, the arbitrators concluded that they were not authorized to address Baylor’s claim for fees under sections 627.756 and 627.428: The Panel, having reviewed the sub-mittals of the parties on the issue of who may be the prevailing party for purposes of awarding attorneys’ fees and costs, does hereby decide and determine that there is no prevailing party in this action....

...Stat., it being the view of the Panel that the agreement of the parties limits the jurisdiction of the Panel to claims for attorneys’ fees under Sec. 713.29. Therefore, no determination has been made as to who may be the prevailing party or whether there is any right to attorneys’ fees under Secs. 627.428 and 627.756, Fla. Stat. Baylor then filed a motion with the circuit court to recover attorney’s fees under sections 627.756 and 627.428. In its motion, Baylor did not challenge the arbitration panel’s denial of its claim for fees under section 713.29, but rather argued that sections 627.756 and 627.428 provided an “alternative basis” to award fees....

...Trytek v. Gale Indus., Inc., 3 So.3d 1194 (Fla.2009). When there is a determination that neither side prevailed, the tribunal may decline to award fees even where there is a judgment entered in favor of one party. Id. at 1203 . By contrast, sections 627.756 and 627.428 apply generally to actions brought against an insurance company or a bonding company: § 627.756 (1) Section 627.428 applies to suits brought by owners, subcontractors, laborers, and materialmen against a surety insurer under payment or performance bonds written by the insurer under the laws of the state to indemnify against pecuniary loss by breach of a building or construction contract....

...how minimal the amount of damages awarded. See Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla.1994) (holding that “prevailing on significant issues” test does not apply to award of attorney’s fees under sections 627.756 and 627.428)....

...pany in an action brought on a section 713.23 bond, but the bonding company is found to be the prevailing party on the significant issues. Under this scenario, the claimant, not the bonding company, would be entitled to attorney’s fees if sections 627.756 and 627.428 governed, while the opposite outcome would occur if section 713.29 controlled....

...enforce a section 713.23 bond. Given that section 713.29 applies solely to actions brought to enforce a lien or to enforce a claim against a bond under chapter 713, we conclude that it is the controlling statute in this case. (By contrast, sections 627.756 and 627.428 would appear to control if the payment bond was a common law bond)....

...3.23 payment bond. Here, the parties stipulated that the bond in question was a 713.23 payment bond. . Prior to a 1992 statutory amendment, section 713.29 applied only to actions "brought to enforce a lien” under chapter 713. As a result, sections 627.756 and 627.428 were found to govern attorney’s fees awards in actions to enforce a chapter 713 bond....

only basis we can discern for this fee is Section 627.756, F. S.1971, F.S.A. (formerly § 627.0905, F

...d Aetna on the payment bond. The trial court entered judgment in favor of Richardson for $28,946.03, and additionally awarded Richardson an attorney’s fee of $6,500. The authority for an award of an attorney’s fee in the instant case is found in § 627.756, Fla.Stat....

...Accordingly, the hospital was not entitled to a set-off of the judgment for cost and attorney’s fees in favor of Peninsular. II. As to the second point, appellants again rely on the sub-contract 7 as well as the theory of indemnity, 8 and also contend that Sections 627.428 9 and 627.756, 10 Florida Statutes (1973), apply....

...the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had. . Section 627.756(2), Florida Statutes (1973) provided: Section 627.428 (attorney fee) shall also apply as to suits brought by owners, sub-contractors, laborers and material men against a surety insurer under payment or performance bonds written by the...

..."Ordinarily a performance bond only ensures the completion of the contract." Id. If the contractor defaults, then "[t]he surety agrees to complete the construction or to pay the obligee the reasonable costs of completion if the contractor defaults." Id.; see also FLA. STAT. § 627.756(2)....

contractor defaults.” Id.; see also Fla. Stat. § 627.756(2). “[T]he surety’s liability for damages is limited

County. The question presented is whether section 627.756, Florida Statutes (1977),1 limits an award

...as no language providing that the remedy of replacement of defective goods would be exclusive. Absent any express language limiting Orr’s remedy to requesting replacement of defective goods, Orr was free to seek alternative remedies at its option. Section 627.756, Florida Statutes (1981), provides for an award of attorney’s fees in suits by materialmen against surety insurers under payment or performance bonds written by the insurers to indemnify the material men against pecuniary loss by breach of a building or construction contract. Upon rendition of a judgment or decree in favor of the materialmen, attorney’s fees will be assessed against the insurer, in favor of the materialmen. Sections 627.756 and 627.428(1), Florida Statutes (1981)....

PER CURIAM. We affirm the judgment, but remand for reduction of the attorney’s fee awarded. Section 627.756(2), Fla.Stat....

...No action for the labor, materials, or supplies may be instituted against the contractor or the surety unless both notices have been given. 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. and § 627.756, Fla.Stat. (1983), provides: 627.756 Bonds for construction contracts; attorney fees in case of suit....

PER CURIAM. We find no error demonstrated in this appeal except the determination of the amount of attorney’s fees. In our opinion the attorney’s fees allowed should be assessed pursuant to Section 627.756(2), Fla....

...d on a jury verdict, plus an award of $21,700 as attorney’s fees. They contend that the jury verdict was in error and clearly demonstrates a misapprehension of the evidence; that the trial court erred in awarding attorney’s fees contrary to Sec. 627.756, Florida Statutes (1975) and further *655 erred in including therein an award for extraordinary fees....

...By stipulation of the parties the extent of the legal services was submitted by affidavit and the value determined by the court. Appellant contends first, that the court erred in not limiting the award of fees to twelve and one-half per cent of the judgment in accordance with Section 627.756(2), Florida Statutes (1973), 1 and next, that there is no basis in the award of $4,000 for “extraordinary services.” The contractual agreement between the parties was that the contractor and its surety would indemnify and save the City harmless of and from “ ....

...The final judgment is affirmed as to the award of damages to appellee and as to the award of attorney’s fees totalling $17,700, but is reversed as to the allowance of $4,000 for extraordinary services. AFFIRMED in part and REVERSED in part. COBB and SHARP, JJ., concur. . § 627.756(2): “Section 627.428 (attorney fee) shall also apply as to suits brought by owners against a surety insurer under payment or performance bonds written by the insurer under the laws of Florida to indemnify such owners against the pecuniar...

...as prerequisite to a direct action on a payment bond. As for the second point on appeal, we find there was error in the computation of attorney fees. The trial court awarded an attorney fee in this case without regard to the limitation prescribed by section 627.756(2), Florida Statutes (1977), which provides as follows: Section 627.428 (attorney fee) shall also apply as to suits brought by owners, subcontractors, laborers and material men against a surety insurer under payment or performance bon...

...A1A Insulation Industries, Inc., 390 So.2d 734 (Fla. 4th DCA 1980), the Fourth District receded from its previous opinion in Travelers Indemnity Co. v. Howell & King, Inc., 336 So.2d 1 (Fla. 4th DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1976). The Fourth District now holds that section 627.756 prevails over section 713.29 in regard to the computation of attorney fees in cases involving payment bonds....

...Langerman, 369 So.2d 591, 594 (Fla. 1st DCA 1978): Section 624.13 of the Insurance Code states that the code’s provisions regarding types of insurance, insurers or as to “a particular matter” prevail over all other such provisions. In regard to the instant point on appeal, section 627.756(2), Florida Statutes (1977), deals with a “particular matter” as opposed to section 713.29, Florida Statutes (1977), which concerns attorney fees in cases involving enforcement of a lien....

...udgment. 2 Accordingly, the judgment in favor of Superior is affirmed except for the assessment of attorney fees, which is vacated, and the cause is remanded with directions to reconsider the allowance of attorney fees to Superior in conformity with section 627.756(2), Florida Statutes (1977)....