{"id":900978,"date":"2023-03-22T10:58:54","date_gmt":"2023-03-22T16:58:54","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=900978"},"modified":"2023-03-22T10:58:59","modified_gmt":"2023-03-22T16:58:59","slug":"performance-bond-correction-or-repair-test","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/performance-bond-correction-or-repair-test\/","title":{"rendered":"No Free Warranty: Connecticut Court Adopts Correction or Repair Test"},"content":{"rendered":"\n

Daniel Towns | Troutman Pepper<\/a><\/p>\n\n\n\n

In\u00a0All Seasons Landscaping, Inc. v. Travelers Cas. & Sur. Co. of Am.<\/a><\/em>, a Connecticut court considered for the first time whether the performance of warranty work<\/a> tolls the statute of limitations on payment bond claims. The court ruled that it does not. It dismissed subcontractor All Seasons Landscaping, Inc.\u2019s (ALS\u2019s) bond claim because ALS admitted that it last performed non-warranty work on the project more than one year before filing suit, meaning the statute of limitations barred its claim.<\/p>\n\n\n\n

ALS began performing invasive species removal and control work for a Connecticut Department of Transportation (DOT) intersection improvement project in February 2018. Travelers Casualty & Surety Company of America (Travelers) issued the payment bond for the project. ALS completed its removal work in August 2018. ALS\u2019s subcontract permitted the DOT to hold back 60% of its payments to assure ALS would warranty the work, which ALS did with site checks performed between June 2019 and May 2020.<\/p>\n\n\n\n

In March 2020, ALS completed a claim form and certification of claim against the Travelers payment bond in which it attested that it last performed non-warranty work on July 31, 2019. At trial, however, ALS attempted to portray its 2019-2020 site checks as part of its \u201ccore contractual obligations.\u201d The court rejected ALS\u2019s position that the certification of claim \u201cmischaracterized\u201d the site checks as warranty work, reasoning that ALS could not have intended to commit perjury in a sworn statement. It held that those site checks were, in fact, warranty work.<\/p>\n\n\n\n

Connecticut General Statute Section 49-42(b) governs Connecticut\u2019s one-year limitation period on payment bond claims. It provides that \u201cno \u2026 suit may be commenced after the expiration of one year after the last date that materials were supplied or any work was performed by the claimant.\u201d The statute gives no guidance on whether \u201cwork\u201d or \u201cmaterials\u201d as used in Section 49-42(b) include warranty work, and the parties and appellate court could find no authorities on point in Connecticut. However, Connecticut models its payment bond act after the federal Miller Act (40 U.S.C. \u00a7\u00a7 270a-270d), and Connecticut General Statute Section 49-42 is known as the \u201cLittle Miller Act.\u201d The Connecticut Supreme Court consistently follows federal courts\u2019 Miller Act rulings, \u201cas Connecticut finds [its] \u2018Little Miller Act\u2019 \u2026 closely aligned.\u201d<\/p>\n\n\n\n

Following the majority rule in the federal circuits, the court held that remedial work, repairs, and inspections of work already completed fall outside the definition of \u201cwork\u201d or \u201cmaterials,\u201d and therefore, such work did not toll the statute of limitations. ALS\u2019s payment bond claim was untimely.<\/p>\n\n\n\n

This case presents important lessons for both subcontractors and developers, including:<\/p>\n\n\n\n