Notice by Email Was Sufficient for Miller Act Bond Claim

USA May 7 2021

We knew this day would come, since email is now the primary means of written communication. A material supplier made a payment bond claim solely via email. No letter was sent by mail, much less sent by certified mail as required under the Maryland Little Miller Act for payment bond claims. And yet, a federal District Court judge has held that notice by email was sufficient, and denied the surety’s motion for summary judgment.

The plaintiff was a material supplier to a first-tier sub, providing materials from January to May 2019. On October 30, 2019, the plaintiff sent an email to the GC concerning the unpaid amounts, and attached documents to back up its claim. The email identified the project, the first-tier sub and the amount due. The supplier also asked for a copy of the payment bond, which the GC eventually provided.

The surety provided the supplier with a proof of claim form, which the supplier submitted back to the surety. There was no dispute that the supplier never sent any notice by certified mail. (Although not clear from the decision, it may be that all communications were via email.)

The Maryland payment bond statute states that notice “shall be sent by certified mail to the contractor.” This was admittedly not done. But the judge noted:

this Court must still look to the purpose of the statute to determine whether email is a sufficient means of delivery. In this case, a liberal construction of the means of delivery does not contravene the remedial purpose of the statute. The purpose of certified mail is to ensure receipt of the claim. In this case, receipt of the claim was ensured by email which provided a digital history of delivery.

Further, there was no argument about the timing, content or even receipt of the email notice. The only argument was to the form of delivery of the notice. Since the GC and surety had received timely notice from the supplier with the pertinent information provided, the delivery of that notice by email was found to satisfy the purpose of the payment bond law.

The case is Johnson-Lancaster & Assocs. v. H.M.C., Inc., 2021 U.S. Dist. LEXIS 83566 (D. Md., April 29, 2021) (paywall).