Common Law Payment Bond Rights

Not all payment bonds are statutory payment bonds. For example, if a subcontractor furnishes a payment bond, that bond is not a statutory payment bond. Rather, it is referred to as a common law payment bond. With a common law payment bond, unlike a statutory payment bond, there are no statutory prerequisites to perfect a claim against the bond. The statute of limitations is also not one year from final furnishing, so a claimant has a longer period of time to assert a claim against the bond.   But, this also means that there is not a payment bond statute to look to that gives a claimant the right to prevailing party attorney’s fees. However, all is not lost! Florida Statute s. 627.756 of Florida’s Insurance Code provides a statutory basis for a claimant to recover attorney’s fees under a common law payment bond.  Thus, if you are dealing with a common law payment bond, such as a payment bond furnished by a subcontractor, there is flexibility to assert a payment claim if you are not paid and this flexibility still includes a basis to recoup attorney’s fees.

Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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