When a claimant sues a Miller Act payment bond, there is no legitimate reason to sue the payment bond surety for other counts hoping some other count sticks. This is especially true if the payment bond claim was timely filed and the claimant preserved its right to sue the bond. If the claimant failed to timely sue or failed to preserve its rights, perhaps there is a reason to be creative. But, more than likely, the payment bond surety will only be liable for one count — a statutory action on the bond.
In a recent case example, discussed here, a subcontractor claimant tried to sue the Miller Act payment bond surety for breach of the underlying subcontract, open account and account payable. Nor surprisingly, the trial court dismissed these gratuitous causes of action. These other causes of action were not necessary and, importantly, the subcontractor did not have a valid claim against the Miller Act payment bond surety for a claim other than an action on the prime contractor’s Miller Act payment bond.
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