Date of Mailing Doesn’t Save Payment Bond Claim

In a case of first impression in Virginia, the circuit court in Norfolk confirmed that the date of mailing is meaningless to satisfy notice requirements on a state law payment bond claim. The date that matters is the one on which the general contractor receives the notice.

Under the Little Miller Act in Virginia, a supplier or subcontractor who asserts a payment bond claim must give “written notice” to the general contractor within 90 days of the last day of work for which payment is sought. Failure to do so bars the claim. In R. T. Atkinson v. Archer Western Construction, the supplier mailed notice of its claim before the 90-day deadline, but the general contractor received it two days after the deadline. Citing similar federal precedent, the state court held that notice is not “given” until the general contractor receives it, so a payment bond claim that is only mailed before the deadline is ineffective.

The lesson? Don’t wait until the last minute to assert your bond claim. You just might lose it all.

© Crenshaw, Ware & Martin, P.L.C.   This information is educational only; it is not legal advice. CWM attorneys represented the general contractor and surety in the case.