MILLER ACT PAYMENT BOND CLAIM “NO NOs!”

A recent federal district court opinion, Sauer Construction, LLC v. United Structures of Georgia, LLC, 2026 WL 2522849 (M.D.Fla. 2026), addressed two worthy considerations when it comes to a Miller Act payment bond claim. And, when I am talking about considerations, I am really talking about “no-nos.” These are things you don’t do.

First, don’t file an untimely Miller Act payment bond lawsuit. Make sure, as a claimant, you file that lawsuit within one year from your final furnishing. In this case, the subcontractor claimant did not and tried to argue around the statute of limitations with an equitable tolling argument, i.e., that the statute of limitations should be equitably tolled to accommodate the late filing of the lawsuit.  Guess what?  The subcontractor was not successful. You are fighting an uphill (losing) battle when arguing equitable tolling because “traditional equitable tolling principles require that the claimant demonstrate extraordinary circumstances, such as fraud, misinformation, or deliberate concealment.” Sauer Construction, supra.  This means you need ultra-persuasive evidence to support such equitable tolling principles. Actually, having this evidence is doubtful. Thus, timely file the Miller Act payment bond lawsuit. There is no legitimate reason not to.

Second, a Miller Act payment bond surety is not going to be liable for unjust enrichment, so don’t try to create this argument simply because you missed the deadline to file the lawsuit. In this case, the subcontractor claimant made an unjust enrichment claim that included the Miller Act payment bond surety. Guess what? This argument failed. The payment bond’s interaction is only through the bond itself such that any remedy against the bond is per a lawsuit filed in federal district court against the bond in a Miller Act payment bond lawsuit.  See Sauer Construction, supra.  Thus, timely file the Miller Act payment bond lawsuit.

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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