Notice under Virginia’s Little Miller Act must be received by 90-day deadline

Notice that is mailed, but not received, by the 90-day deadline in Virginia’s Little Miller Act is untimely under Virginia law, according to a case of first impression in Norfolk Circuit Court. Subcontractors and suppliers asserting a payment bond claim on a public construction project in Virginia are required by statute to give written notice to the general contractor within 90 days of the last day of work for which payment is claimed. In R. T. Atkison Building Corp. v. Archer Western Construction, Judge Fulton held that, under Va. Code § 2.2-4341, “notice is ‘given’ when the contractor receives notice from the claimant.” Consequently, a notice that is received after the deadline is untimely, regardless of when it was mailed. CWM attorney David Hartnett argued the case for the successful general contractor and surety. A copy of the opinion can be found here.