Real Estate Law

Payment Bond Claim Notice Requires More than Mailing

It’s been a while since I posted something new relating to Virginia’s “Little Miller Act” and its various notice requirements for a subcontractor to make a payment bond claim.

I have posted on the basics of a Virginia payment bond claim previously here at Musings. One of these basics is the 90 day notice requirement for suppliers or second tier subcontractors with no direct contractual relationship to the general contractor. A recent case from the Norfolk, Virginia Circuit Court examined when notice is “given” under the Little Miller Act, [subscribers can access an enhanced version of this statute: lexis.com | Lexis Advance].

In R T Atkinson Building Corp v Archer Western Construction, LLC the Court looked at the question of whether mailing of the notice of claim is enough to constitute notice being “given” in a manner that would satisfy the statutory requirements. In that case, the supplier mailed the notice within the 90 day window, but the defendant argued on summary judgment that it did not receive the notice until 2 days after the 90 day window had closed. In support of this contention, the defendant provided tracking information showing delivery by the USPS on the non-compliant date.

While rejecting the plaintiff’s argument that because the Virginia General Assembly stated that mailing was the method of service of the notice mere placing the notice in the mail was sufficient to constitute the giving of notice, the Court stated as follows:

[I] conclude the mere mention of mailing as a method of service fails to establish that mailing satisfies the statutory prerequisite to “give” notice. To find otherwise would not provide for the level of certainty that the legislation was intended to give to prime contractors and is a reasonable construction which allows the Little Miller Act to effect its remedial purpose. Accordingly, this court finds that notice is “given” when the contractor receives notice from the claimant.

The Court then went on to deny summary judgment on procedural grounds unrelated to the actual facts of mailing and receipt.

In short, the mere mailing of your 90 day notice is not enough to satisfy the requirements of Virginia’s Little Miller Act. The notice must be received by the general contractor within that window.

As always, I recommend reading the opinion for yourself and consulting with a Virginia construction attorney if you believe that you have a possible payment bond claim.

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