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Attorney fees on payment bond claim

Continental Casualty Company v. A. W. Baylor Versapanel Plastering, Inc., 37 Fla. L. Weekly D2167 (Fla. 5th DCA October 12, 2012). Holding:  Section 713.29 controlled subcontractor’s entitlement to attorney fees on payment bond claim.

Facts:  Continental Casualty Company (“Surety”) furnished a payment bond under Section 713.23, to Aviation Constructors, Inc. (“Contractor”) for a large commercial project.  A.W. Baylor (“Subcontractor”) was a subcontractor on the Project.  Disputes arose and Subcontractor filed suit against Contractor and Surety on the payment bond.  The parties were ordered to arbitration based on an arbitration clause in the subcontract.  Prior to arbitration hearing, the parties entered into a stipulation requesting that the panel determine right to attorney fees under Section 713.29 as well as the amount of any award.

The arbitration panel ruled in favor of Subcontractor but the damages awarded were substantially less than the amount of its claim.  Subcontractor requested that the arbitration panel award attorney’s fees under Section 713.29 and Sections 627.756 and 627.428.  The arbitration panel declined to award fees under Section 713.29 and determined that they were not authorized to address fees under Sections 627.756 and 627.428.

Subcontractor then filed a motion with the Circuit Court seeking attorney fees under Sections 627.756 and 627.428 arguing the statutes provided an alternative basis to award fees.  The Circuit Court ruled that Subcontractor was entitled to recover attorney fees under Sections 627.756 and 627.428.  The appellate court reversed Circuit Court’s ruling and held that Section 713.29 was the controlling statute because Subcontractor’s action against Surety was to enforce a payment bond claim.  The Court also noted that the parties acknowledged that Section 713.29 was the controlling statute for purposes of awarding attorney fees in the pre-arbitration stipulation.