Recovering Attorney’s Fees Against a Miller Act Payment Bond

Prime contractors working on federal construction projects will furnish a payment bond to the federal government. This payment bond is referred to as a Miller Act payment bond. Subcontractors and those in privity with a subcontractor have rights against the Miller Act payment bond in the event they are not paid by the prime contractor and, of course, have properly preserved their rights against the payment bond. (It is important to consult with counsel if you are unsure as to what your Miller Act payment bond rights are.)

Unlike other statutory payment bonds, the Miller Act does not statutorily provide for prevailing party attorney’s fees. This is noteworthy because you typically need a contractual or statutory basis in order to recover your reasonable attorney’s fees when prevailing in an action. But, if pursuing a Miller Act payment bond claim in a Florida district court, there are still arguments that could be made to recover attorney’s fees.

The main argument to recover attorney’s fees against the Miller Act payment bond is that if the underlying contract allows for attorney’s fees, the bond claimant can recover these fees against the Miller Act payment bond. For example, if the underlying subcontract between the prime contractor and earthwork subcontractor allows for prevailing party attorney’s fees, the earthwork subcontractor could argue that it should be entitled to its attorney’s fees against the Miller Act payment bond for incurring these fees in recovering unpaid amounts against the payment bond.

Please contact David Adelstein at dadelstein@gmail.com 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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