The Miller Act and most of the state bond statutes mirroring the Miller Act, impose a one year statute of limitations to file a bond claim from the last date labor or materials were supplied to a project. (There are other requirements, such as providing notice to the contractor and surety within 90 days after the last date labor or materials were supplied).
Reviewing a case this morning from Mississippi, reminds that rushing back to the project site after completion to pound a few nails, will not resuscitate an expired claim. The court in In re Triangle Maint. Serv., Case No. 11-15142, A.P. No. 12-01020, UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI, 2013 Bankr. LEXIS 1407 (April 3, 2013) was asked to make this determination when a subcontractor/debtor sought to recover on a bond claim made against a general contractor claiming the subcontractor's bond action was filed 6 days too late. According to defendant, its subcontractor's last day of work was February 11, and according to the subcontractor, its last day of work was February 18.
Both sides presented the court with evidence of the last day work was performed on the job, and the general reminded the court of the line of cases holding that remedial or corrective work does not constitute materials or labor for purposes of determining the statute of limitations for bond claims.
But for both sides' failure to authenticate their evidence, thus ultimately mooting the issue before the court, an interesting question appeared to be forming for the court's decision: defendant's unauthenticated evidence consisted of letters complaining of the plaintiff's failure to adequately man the job, and poor performance on the site. Defendant apparently contested both that plaintiff showed up on February 18 as it claimed, and/or that any work provided could have been anything but remedial or corrective. As noted, however, both sides failed to authenticate their letters and other documents and therefore summary judgment was denied since Defendant bore the burden of proof on its affirmative defense of untimeliness.
